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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}
======
| Neutral Citation Number:
[2013] EWCA Crim 510
Case No.
2010/04362/A4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Tuesday 12 March 2013
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Judge
)
MR JUSTICE MACKAY
and
MR JUSTICE SWEENEY
__________________
R E G I N A
- v -
KENNETH JAMES NOYE
__________________
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 R Chand
appeared on behalf of the Applicant
Mr M Ellison QC
appeared on behalf of the Crown
____________________
J U D G M E N T
THE LORD CHIEF JUSTICE:
1. On 14 April 2000 in the Crown Court at Maidstone before Latham J (as he then was) and a jury, Kenneth Noye, a professional criminal, was convicted of the murder of Stephen Cameron. He was sentenced to life imprisonment. In accordance with the practice then current, the minimum term of custody recommended by the judge was sixteen years. He now renews his application for leave to appeal against the decision of Simon J on 25 June 2010 (19 months out of time) when Simon J exercised the jurisdiction in relation to the setting of the minimum term pursuant to Schedule 22, paragraph 3 of the
Criminal Justice Act 2003
, in effect leaving the recommendation made by Latham J unchanged and setting the minimum term accordingly. The application for leave to appeal against this decision was refused by Rafferty J (as she then was) in October 2010. Following her refusal of leave to appeal against Simon J's decision, and before the application for leave was renewed, this court considered and dismissed an appeal against conviction following a reference by the Criminal Cases Review Commission when, as far as we can see (and so far as I can recollect) no attempt was made at the time to address the sentencing issue.
2. The single issue which now arises is whether the 16 year minimum term should be subject to a reduction to reflect the fact that the applicant was detained in custody in Spain for a period of nine months before he was extradited to this jurisdiction. We must put this issue into its factual context. The facts are summarised by Simon J in his judgment and we gratefully adopt it for present purposes.
3. A number of matters were in dispute during the course of the original trial which were not resolved by the verdict of the jury. Nevertheless, a fair, if incomplete, summary can be made.
4. The applicant was 53 years old at the date of his conviction in 2000. He was not a man of good character. His only previous custodial sentence had been a term of imprisonment for fourteen years following his conviction on a charge of conspiracy to handle stolen bullion from the notorious Brinks-Mat robbery. The was the basis on which we described him as a professional criminal. That sentence had been passed at the Central Criminal Court in July 1986.
5. In due course we shall come to the applicant's previous experience of the consequences of using a knife: in 1985 he had stabbed Detective Constable John Fordham to death in the grounds of his home. He pleaded self-defence at his trial and had been acquitted.
6. The murder of Stephen Cameron arose out of an altercation following an incident close to the junction of the M25 motorway near Swanley at about 1.20pm on 19 May 1996. The applicant was driving his Land Rover Discovery off the M25 onto the roundabout at the junction of the M25 and the A20. Stephen Cameron was a passenger in a van driven by his girlfriend, Danielle Cable. As both vehicles approached the lights at the junction of the roundabout and the slip road coming up from the A20 for traffic travelling in an easterly direction, the lights turned red. The applicant's vehicle cut across the van and stopped in front of it and at a slight angle. The applicant and Stephen Cameron each left the vehicle in which he was travelling. They confronted each other. What occurred next was seen by a number of witnesses who gave evidence, although there was conflicting evidence about the precise sequence of events. However, it is clear that there was a fight during which the applicant was driven back towards his car. A number of witnesses then saw him go to the front nearside of the car, where he took a knife from his pocket. He then went to the back of his car where Stephen Cameron was standing and held the knife out towards him. Stephen Cameron seems to have thought that he was about to be attacked, kicked out at the knife and then tried to get hold of the applicant.
7. In his report to the Home Secretary Latham J described what happened next:
".... at this stage the defendant stabbed the victim twice. One wound went from the left side of the victim's chest at 45% inwards and upwards towards the right, slicing across the liver. This was not the fatal blow. The other [wound] went in at 45% inwards and upwards from the right side of the chest towards the left and entered the heart. This was the fatal wound. The stab wounds were respectively 18cm and 16cm in depth according to the prosecution's main pathologist."
8. The issue at trial was whether the prosecution had disproved the defence of self-defence asserted by and on behalf of the applicant. In his report Latham J expressed his view of what had occurred:
"I have little doubt that at the beginning of the incident both the defendant and the victim were equally prepared for a fight. The defendant was angry because, as I read the evidence, he had been baulked. The victim was prepared to defend his girlfriend. Both the defendant and the victim had short tempers. The defendant only resorted to the knife when he got the worst of the fight. As I have already said, only he will know whether in the first instance he intended simply to intimidate and therefore depart with the trappings of victory, or whether he intended to use the knife from the moment that he took it out. There is no doubt that he ultimately used the knife deliberately twice in circumstances in which he must have known from his own previous experience that there was, at the very least, real risk of fatal injury."
That previous experience was the occasion when the applicant had stabbed Detective Constable Fordham.
9. Within a very short time of the fatal injury sustained by Mr Cameron, the applicant had arranged for the Discovery vehicle he had been driving to be destroyed and crushed, for a similar vehicle to be purchased with a false name and address, and parked up at his home so as to give a wholly false impression of the vehicle that he was driving at the time of the killing. He left this country by private helicopter on 20 May (the day after the killing) from a private address near Bristol. He flew to a golf course in Normandy, and on the following day he flew by private jet from Paris to Madrid.
10. When he was arrested in Spain he was in possession of false passport, driving licence and insurance, all in the false name of Alan Green. He contested his extradition from Spain. Following an order for extradition made in February 1999, he appealed against the order. The appeal was eventually unsuccessful. It is not insignificant that when he gave evidence at his trial the applicant told the jury that he had left for Spain intending never to return to the United Kingdom because he had as much money as he wanted in Spain. Moreover, although he had asserted self-defence as part of his defence at the trial in this country before Latham J, during the course of the extradition proceedings in Spain he had adamantly maintained a denial that he had any involvement whatever in Mr Cameron's death.
11. The single issue which now arises is whether the sixteen year minimum term should be subject to a reduction to reflect the fact that the applicant was detained in custody in Spain for a nine month period before he was extradited. The renewed grounds can therefore be briefly summarised. There is no argument about the basic structure of the minimum term. The complaint is that Simon J's approach to the issue was wrong; he ought to have made some allowance (even if not necessarily for the full nine month period) for the time the applicant was in custody.
12. There is evidence before us from the lawyer in Spain who dealt with the extradition proceedings on behalf of the applicant. It reveals that the applicant was arrested in Spain on 28 August 1998. By then he had been deliberately at large abroad for well over two years. As we have already indicated, he was sufficiently well funded not to need to return to this country and he had no intention of doing so. According to this evidence, the process of extradition, even if it had been uncontested, would have taken something like six months. We have our reservations about the accuracy of that observation, but it makes no difference to our conclusion.
13. At the date of the applicant's conviction and the original sentence, any possible allowances to be made in relation to the assessment of the custodial term for an extradited prisoner was governed by
section 47
of the
Criminal Justice Act 1991
. So far as relevant it states:
"(1) A short-term or long-term prisoner is an extradited prisoner for the purposes of this section if --
(a)
he was tried for the offence in respect of which his sentence was imposed --
(i)
after having been extradited to the United Kingdom; and
(ii)
without having first been restored or had an opportunity of leaving the United Kingdom; and
(b)
he was for any period kept in custody while awaiting his extradition to the United Kingdom as mentioned in paragraph (a) above.
(2) If, in the case of an extradited prisoner, the court by which he was sentenced so ordered, section 67 of the 1967 Act (computation of sentences of imprisonment) shall have effect in relation to him as if a period specified in the order were a relevant period for the purposes of that section.
(3) The period that may be so specified is such period as in the opinion of the court is just in all the circumstances and does not exceed the period of custody mentioned in subsection (1)(b) above."
14. The effect of this legislation was summarised in the then contemporary edition of Archbold (Archbold 2000) at paragraph 5-121(b):
"In making orders under this section courts will presumably be guided by earlier decisions which indicate that an offender who has deliberately prolonged the period in custody abroad should not be given credit for the full period."
A number of authorities were cited, and we shall refer to some of them.
15. In
R v Scalise and Rachel
7 Cr App R(S) 395 this court made clear that while time spent in custody overseas pending extradition should normally be taken into account when sentencing, where the defendants had deliberately resisted extradition to the fullest extent and prolonged the period in custody abroad while awaiting extradition, it was not necessary for the sentence to be reduced to make allowance for that fact.
16. The same principle was underlined in
R v Peffer
(1992) 13 Cr App R(S) 150. The court was required to consider the period spent in custody, and then decide what, if any, reduction should be made. All relevant matters had to be considered, including the reasons why the appellant went and stayed abroad, and whether there was any resistance to the extradition proceedings. It was also 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, that that period of time will necessarily be considered as though it had been spent in this country serving the sentence imposed by its courts. Given that the decisions involved the exercise of discretion on the basis of individual facts, we note, without reciting,
R v Stone
(1988) 10 Cr App R(S) 322,
R v De Simone
[2000] 2 Cr App R(S) 332, and
R v Howard
[1996] 2 Cr App R(S) 416, all of which illustrate that different circumstances will bear on the way in which this discretion falls to be exercised, whether some, or all, or any of the period in foreign custody may be set against and allowed for in the sentencing decision in this country.
17. Under the current regime following the coming into force of the
Criminal Justice Act 2003
, the relevant provisions for crediting time served by fixed-term prisoners are sections 240 and 243. 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". These provisions -- and we are indebted to Mr Ellison QC for drawing our attention to this -- do not apply expressly to mandatory life sentences. But
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.
18. The court is vested with a discretion, and continues to be so vested, to refuse to make any discount from the minimum term where the defendant has been held in custody abroad pending extradition to this country. Even if the first response now suggested by the statutory language in section 240(4) is different from the original language in
section 47
of
the 1991 Act
, and the first response is that the court will normally allow some discount, it must nevertheless decide whether it would be just to do so. In the context of the differing legislative regimes, the question whether to make any such allowance was examined by Latham J when making his recommendation about the appropriate length of sentence to be served by the applicant. That is clear from the letter that he wrote dated 3 May 2000, in which he said in his observations to the then Lord Chief Justice:
"In view of the fact that the greater part of that period, if not all of it, was the result of his seeking to avoid extradition, I see no justification for altering my recommendation in any way."
19. The issue was then considered by Simon J when setting the minimum term. The single judge considered it again when the application for leave to appeal against Simon J's decision was mounted. 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 as we have indicated, an unsuccessful appeal against the order.
20. We can see no reason whatever for interfering with the approach taken either by Latham J in 2000 or, in the light of current statutory provision, its adoption by Simon J. Indeed, we agree with it. This renewed application for leave to appeal many months out of time is wholly without merit and is refused.
_________________________________ | ```yaml
citation: '[2013] EWCA Crim 510'
date: '2013-03-12'
judges:
- MR JUSTICE MACKAY
- 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 No:
[2005] EWCA Crim 190
Case No:
2003 00214 B2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL
His Honour Judge Lewis
Lower Court References: T2000 01736, T 2001 7227
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
3rd February 2005
Before :
LORD JUSTICE LONGMORE
MR JUSTICE LEVESON
and
SIR RICHARD TUCKER
- - - - - - - - - - - - - - - - - - - - -
Between :
RICHARD KEITH SUTTON
Applicant/Appellant
- and -
REGINA
Respondent
- - - - - - - - - - - - - - - - - - - - -
ANTHONY JENNINGS Esq QC and LEWIS POWER Esq
for the Applicant/Appellant
STEPHEN RIORDAN Esq QC and Ms TERESA LOFTUS
for the Respondent
Hearing dates : 16th, 17th December 2004
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT
Lord Justice Longmore:
1.
Introduction
On 2nd and 3rd July 2001, Richard Keith Sutton was convicted of 32 out of a total of 47 counts of sexual abuse and sentenced to 14 years imprisonment. On 30th January 2004, this Court referred Mr Sutton’s application for leave to appeal to the Full Court and ordered that, if leave to appeal were granted, the appeal should be heard immediately. On 16th and 17th December we heard full argument on all matters. We decide that Mr Sutton should have leave to appeal and will now refer to him as “the appellant”.
2.
Between July 1976 and November 1981, the appellant was a care worker at Hand House at the St Thomas More home in Southport, which was run by an organisation called the Nugent Care Society. It is alleged that while he was there he abused PH, born in 1964, between September 1980 and October 1981 and PD, born in 1965, between December 1980 and June 1981. In the case of PH, the appellant was convicted on 3 counts of indecent assault and one specific count of buggery but acquitted of various specimen buggery counts over a period and a specific count of buggery alleged to have occurred after PH had been pushed or fallen downstairs; a verdict of Not Guilty on 2 other counts had been entered at the close of the prosecution case. The appellant was sentenced to a total of 4 years on the counts of which he was convicted.
3.
The appellant was convicted of 10 counts of indecent assault on PD for which he was sentenced to 12 months concurrent on each count and concurrent with the sentence on other offences in relation to other offenders.
4.
The appellant moved to become Deputy Head of Parkside Children’s Home in the Wirral between November 1981 and November 1987. He was there employed by Wirral Borough Council. Here he met the female complainant, PV, who was born on 9th December 1965, and was at Parkside between November 1978 and January 1984. Thereafter she moved out and lived at various addresses at Halfway House in Borough Road and Devonshire Road. The appellant was convicted of 5 offences of indecent assault on PV, 4 of them at Parkside and one at Halfway House for which he was sentenced to 18 months concurrent. He was also convicted on two counts of rape, one on PV’s first day at Halfway House and the other at Devonshire Road. For the first of these rapes he was sentenced to 6 years imprisonment and for the second 5 years concurrent. The four year sentence for buggery of PH was consecutive to those sentences.
5.
Between November 1987 and March 1990, the appellant was head of a school known as St Vincent’s. No allegations of abuse were made in respect of this period. Thereafter he was head of Othona Children’s Home in Southport, again run by the Nugent Care Society, and he was convicted of 1 count of buggery and 7 counts of indecent assault on JA, born 21st August 1978 for which he received a sentence of 4 years consecutive to the other offences making a total of 14 years imprisonment.
6.
The appellant’s defence was that none of the alleged offences had occurred. The three main general grounds of appeal are that:-
(1)
there were insufficient warnings given to the jury of the particular care which they should take and the caution they should exercise in relation to allegations which depended on the unsupported evidence of the complainants;
(2)
there was insufficient warning given to the jury about the care they should take by reason of the antiquity of the alleged events and the delay in bringing them to court;
(3)
the police, in the course of conducting “Operation Care” in relation to allegations of abuse in Merseyside homes, including the allegations against the appellant, may have encouraged the complainants to come forward and make allegations of abuse but to play down their intention of claiming compensation (whether through the courts or by application to the Criminal Injuries Compensation Authority) by saying at the trial that they were unaware of their rights and had no intention of making any claims.
7.
There are further grounds of appeal specific to each complaint:-
(1)
in relation to PH, that the conviction on the specific count of buggery was inconsistent with the appellant’s acquittal of subsequent specimen counts of buggery and the further specific count;
(2)
in relation to PD, that he had said (both before and after the trial) to a third party that he intended to make false charges of indecent assault;
(3)
in relation to PD and PV, that their applications for compensation post-trial, after PD had said in evidence that he did not know he had any claim to compensation and PV had said she would make no claim, make their evidence unreliable;
(4)
that JA had retracted his evidence since the trial and that, if his diary had been disclosed to the jury at trial, they would have appreciated that he would invent serious allegations and that he was a liar.
8.
Evidence
It is unfortunately necessary to say something of the evidence in the case in order to understand the individual grounds of appeal. The various complaints all emerged as part of the large scale police inquiry in the North West of England in relation to children’s homes, known as “Operation Care”, which resulted in a number of trials and subsequent appeals of which this case is one.
9.
PH
(
Counts 1-15
)
PH was 16 when he went to St Thomas More’s in September 1980 where he stayed for 13 months, leaving in October 1981. He said he had been there for 2-3 years but, as the judge told the jury, that was manifestly and completely inaccurate. He said it was a very unpleasant place to be in and that the appellant was known as Big Bird. He described him as an ‘evil bastard’ whom he saw regularly and who abused him. The first occasion was when he was in bed in his dormitory and the appellant came in and was nice, asking if he wanted anything. The appellant asked him to touch his private parts which PH eventually did. He said that that happened on numerous occasions. The appellant would then do the same thing to him. That was the subject matter of count 1, a specimen count. After that first time it got more serious. The appellant would get an erection and the complainant was forced to masturbate him on numerous occasions either in the dormitory or in the toilets. That was count 2, again a specimen count. Sometimes two others, bullies, were present in the toilets when he was being abused and they also took part. On more than one occasion he was forced to suck the appellant’s penis. That was count 3, again a specimen count. The complainant said he was threatened with a beating if he did not do what was asked.
10.
On one occasion in the dormitory the appellant got him to fondle him and said “I’m going to bum you”. He then buggered PH (count 4). That happened on several other occasions either in the dormitory or in the toilets (counts 5-8, specimen counts). He was buggered again on several occasions by the appellant and ‘Big Sid’ a resident who got on well with the appellant. A third man was present on most occasions. He would be buggered up against the wall by more than one person but would not know which one it was. Lots of laughing went on and although he screamed nobody ever came (counts 9-12, specimen counts).
11.
At one point he had a broken leg, which was in plaster. He was in bed with another boy, cuddling together for comfort because they were both scared and the appellant dragged him out of bed and then pushed him down the stairs where be was buggered on the floor at the bottom of the stairs (count 14).
12.
On his admission to St Thomas More at aged 16 PH was over 6 feet tall and weighed 11½ stone. The judge commented that he was “no shrinking violet”. PH accepted the reality which was that he had been at St Thomas More for just over a year and he further accepted that during that time he had absconded for a total of 143 days.
13.
PH’s first contact with Operation Care in relation to the appellant was a note from DC Neil who later asked him about his time in care and whether he had any complaints. He thought he mentioned St Thomas More’s first but the appellant’s name was not mentioned until later. He was not prompted with the appellant’s name nor did the police say anything about him specifically.
14.
PH agreed that in April 1995 he made a statement complaining of buggery in St Aiden’s, another care home, by a man called Dick. He also said he had been sexually abused by his father. He agreed that he was making applications for criminal injuries compensation and taking civil proceedings against the local authority and the Nugent Care Society. He said he suffered rectal bleeding following the abuse by the appellant, Big Sid and Joe Bugner or Buckner (count 13) and was taken to hospital. He said he may have become confused between St Aiden’s and St Thomas More’s.
15.
He agreed that he had appeared before the courts on 11 occasions and had seen many probation officers but had not disclosed the fact of his abuse in the care system. Re-examined he said he could not say whether or not he complained to his social worker, Mr Ruddock, about what was happening but did tell him he was unhappy. He had made a complaint about Dick because he understood he was still abusing young people and wanted to get him back for what he did and the same reasons applied to the appellant.
16.
The appellant was convicted of counts 1-4 (by a majority 11:1). He was acquitted by the jury or by direction of the other 10 counts against him.
17.
PD
(
Counts 16-25
)
PD was 15 when he went to St Thomas More’s and was there from December 1980 until June 1981. At the time of the trial in 2001 he was serving an 8 year prison sentence imposed in October 1998 for burglaries of dwelling houses, often in circumstances where the residents were present. At St Thomas More’s he thought he shared a dormitory with 4-5 other boys and remembered the appellant by the name of ‘Big Bird’ saying he was big and over 6 foot tall. The appellant would play fight with the boys and started lifting the complainant between the legs from behind or from the front saying “I’m only playing”. One day the complainant was alone in the music room and the appellant came in, shutting the door. He grabbed PD’s hand, pulling it towards his groin. The appellant mentioned early weekend leave and opened his button putting the complainant’s hand on his underpants on his penis and making him masturbate him. He kept saying that he would get weekend leave. The appellant ejaculated. This was count 16.
18.
After that, masturbation occurred sometimes 2-3 times a week (counts 17-20, specimen counts). Sometimes there were some weeks when nothing happened. The appellant tried to make him suck his penis in the staff room but PD did not want to do that. The appellant made the complainant masturbate him and fondled him. When he ejaculated he pushed PD’s head down and told him to kiss his penis which he did (count 21). That happened on a further 3-4 occasions (counts 22-25). PD would be sitting on a chair with the appellant standing in front of him with his penis out. He would push PD’s head down to his penis and make him kiss it. PD started running away to get away from him. He had just become sexually active himself and was confused but knew he should not be doing what he was with the appellant; it was the promise of weekend leave that made him carry on.
19.
Cross examined PD denied that he was telling lies and said he was unaware of the possibility of financial gain. He did not hold any vendetta against the appellant and had no desire for publicity. He agreed that he had led a life of crime but said he did not blame it on the appellant or on the care system. He was put in the St Thomas More home by the Juvenile Court and was not going to school at the time. He agreed that at the time he was described as untruthful. Asked to explain the reasons for his late complaint, he said they were embarrassment, that he thought he would not be believed, that his mother had felt guilty at putting him in care and he wanted to spare her the angst of discovering that he had been sexually abused while in that situation. Both his parents had recently died and it was for that reason he thought he should move on and disclose what had happened. He made his witness statement on 19th January 2000 whilst at Long Lartin Prison having received a proforma letter from the police. He agreed that at one point he told a social worker that he was enjoying life at St Thomas More’s. He also agreed that he absconded on a number of different occasions and was later sent to a detention centre where a report by the governor said he did not like St Thomas More’s because he was bullied. He had no recollection of PH at St Thomas More’s. He had not made a criminal injuries claim nor a civil claim against the local authority. Whilst being escorted back to St Thomas More’s after he had absconded, he had thought of telling the local policeman about the abuse but did not because he knew that the officer fancied his sister and he did not want anything to get back to his family.
20.
The appellant was convicted on all counts concerning PD.
21.
PV
(
Counts 26-35
)
PV was 12 when she went to Parkside in November 1978. The appellant became deputy head there in November 1981. She got on well with him at first and at the age of 16 she moved into the ‘warden’s house’ a building divided into flats to enable residents to learn living independently. The appellant came to her flat on many occasions, initially for a cup of tea and to see how she was getting on. He came one Christmas and she could smell alcohol on him. He sat next to her putting his arm round her and then he took her hand and put it on top of his hard penis over his trousers. He started rubbing her hand on himself saying it was nice and he liked her. He asked if he could “come”, which he did. He still had his trousers on. This was count 26. She was frightened and did not want to do it, telling him to get off but he did not. That happened a few times.
22.
On another occasion in the appellant’s office they had a big fight and she kicked his shins trying to get him off but he sat her on the chair next to him and she again masturbated him (count 27). That happened on a few occasions, usually in the warden’s house (count 28, specimen count). The incidents were not always over clothing and sometimes he would take his penis out, putting it in her hand and she would masturbate him into the sink (count 30, specimen count).
23.
In January 1984 when she was 18 the appellant helped her to move into a halfway house at Borough Road. He grabbed her and started kissing her before forcing her to the floor where he pulled her jeans off and had sexual intercourse with her. She told him she did not want it but she could not move her hands as they were under his chest. He was very big and when he penetrated her she felt a sharp pain. She had not had sex before. He told her he loved her and then left. Afterwards she threw her clothes in the bin (count 31 – rape). After that he came again to Borough Road and the same thing happened, sexual intercourse and masturbation (count 32 – indecent assault – specimen count).
24.
In May 1984 she moved to a flat in Devonshire Road and the appellant would call after his shift. Sometimes he called two or more times a day and sexual intercourse and masturbation occurred. She did not consent to any of it and he knew that but took no notice even though she kicked, punched and screamed at him (Counts 32 and 33). On one occasion when he came to the flat she made coffee and although she told him she did not want to do it they had sexual intercourse on the floor (Count 34-rape). She later discovered she was pregnant and the appellant told her to have an abortion and there was no need for discussion as to who was the father. (It was agreed that on 7th January 1986 she had had a termination in the tenth week of pregnancy.) The appellant took her to the hospital and brought her home again. After that no further intercourse occurred but masturbation carried on (count 35, specimen count). He then took a job in Formby and she did not see him again.
25.
She agreed that in her youth she was angry, rebellious and aggressive and most difficult at Parkside. She regarded herself as being quite tough, saying that people could not push her around. She had access to a social worker, Nora Griffiths and was seeing her when the appellant was abusing her but did not confide in her. She accepted that by going to Parkside to be with the appellant she may have given the impression of being attached to him but said she did that so that she would not be on her own with him if he came over to the warden’s house. On the occasion of the fight she was telling him to leave her alone. Anyone hearing the noise would be used to it because she was known for screaming and kicking. She agreed that on the occasion of the first rape, the appellant would know that the resident warden, Maggie, lived next door but it was her recollection that Maggie said she would leave them to settle in. She did not say anything at the time and people dealing with her had no idea of the distress she was suffering. The appellant never sought to disguise the fact that he was calling on her regularly and if she had visitors he would just say he was calling to see how she was getting on.
26.
In February 1984 she was convicted of assaulting a police officer but she did not disclose what was going on. She agreed that the appellant did not hide his involvement in taking her to and collecting her from the clinic after her termination. She denied that her pregnancy had anything to do with a boyfriend, Ray Rich, with whom she had had sexual intercourse on one occasion.
27.
In 1997 she told a counsellor, Vicky Bithell, about the abuse. That was the first time she had spoken of it and she made a statement to the police implicating other individuals in the care system. One of those Simkins, pleaded guilty to indecent assault and the police told her she could claim compensation. She did not name the appellant until after Simkins’ trial in January 2001. She had not made any criminal injuries claim.
28.
KR, PV’s female partner, said that she had known PV since she was 12 years old. She visited her 3-4 times a week at Devonshire Road. Sometimes the appellant was present when she arrived or would turn up, staying for hours, not speaking but following PV around. She thought his behaviour bizarre and weird and a lot of other people noticed what was going on. PV never told her that she was being sexually abused and the first she heard of it was after the Simkins trial.
29.
The appellant was unanimously convicted of courts 26-28 and 30-35. He was acquitted on count 29 by direction of the judge.
30.
JA
(
Counts 36-47
)
JA went to Othona in January 1993 when he was 14. He said that the appellant seemed a nice chap, outgoing, big and friendly. They went for trips out and on one occasion they went to a caravan at Squirrel Park in the Formby area. Once in the caravan they had a drink and the appellant put his arms round him and started kissing him on the mouth and unbuttoning his shirt, kissing his chest and feeling his body. He pulled his jeans down and performed oral sex on him (the complainant) but he did not ejaculate. This was count 37, the first of 8 counts of indecent assault). They got on the bed. He was on his stomach and the appellant raised him to his knees and then inserted his penis inside him (count 36, the first and only count of buggery). He did not like it and told the appellant it hurt but he said “It’ll be OK, you’ll get used to it after a while”. On numerous other occasions sexual activity took place, the next being 2 days later in the office when the appellant unbuttoned his (the complainant’s) trousers and performed oral sex on him (count 38). The appellant was a nice man, not rough with him. He looked after JA, taking him for drives and giving him a couple of pounds every now and then to buy lager. JA just did what he did to please the appellant and to keep him looking after him. He thought the benefits might stop if he did not go along with it.
31.
JA said that oral sex took place in the office about four times with JA lying on the desk and the appellant performing oral sex on him. Then the appellant would take his penis out and get JA to masturbate him (counts 40-41, specimen counts). There was an occasion when they went for a drive on the Southport coastal road and the appellant pulled JA’s trousers down and performed oral sex on him. The appellant wanted JA to put his (JA’s) finger in his (the appellant’s) anus and whilst he did that the appellant did the same to JA (counts 45-46).
32.
On another occasion one of the side flats was being decorated and he was alone with the appellant who unbuttoned JA’s shirt and kissed his chest. JA undressed to his shorts and lay on the floor whereupon the appellant masturbated him and he did the same to the appellant. They got into the ’69 position’ and tried to have anal intercourse but it did not work and so they performed oral sex on each other (counts 42-43).
33.
Cross examined JA agreed that he was serving life imprisonment for murder. That had involved JA and another befriending a homosexual man, going back to his flat, holding a knife to his throat, tying him up and bundling him into a trunk, leaving him to suffocate. He said that he specialised in that type of offence. When sentenced in 1997 the trial judge recommended that he serve a minimum of 16 years’ imprisonment. In March 1996, JA agreed he was convicted of 10 offences of robbery. He agreed that over the years he had been interviewed many times by social workers and probation officers but had not disclosed the offences involving the appellant. He first told a probation officer of the offences about 2 years ago although initially did not name the appellant. He was aware of the Criminal Injuries Compensation Authority but had not made any application for compensation because of his record. It was the probation officer who contacted the police about the allegations. He thought he had been crossed by the probation officer and initially refused to see the police when they came to interview him. Prison records were produced and showed that in December 1998 JA disclosed that he was sexually abused by the appellant when aged 15.
34.
The appellant was unanimously convicted of counts 36-38, 40-43 and 45-46. He was acquitted by direction of the judge of 3 counts.
35.
Detective Constable Neil then gave evidence and said he interviewed the appellant between April 1999 and March 2001 and he vigorously maintained his innocence in respect of all allegations. In the course of the investigation the police sent out 155 letters to former residents of St Thomas More’s. Of that number 125 did not reply. Only two of the complainants in this case (PH and PD) came forward as a result of receiving letters.
36.
The appellant gave evidence. He described the routine at the Home and said that he remembered PH as a persistent absconder. He confirmed that he was known at the Home as ‘Big Bird’ or ‘Buzby´ and remembered somebody called ‘Sid’ whose name may have been Russell Williams. He was not a resident but may have visited friends at the home. He thought he might have taken PH to the Lakes once for a day out. Lights went out at 10 pm and there may have been pillow fights but he did not take part in them nor did he regard such activity as grooming youngsters. If PH had screamed in pain others would have heard him. He could offer no reason why PH should make the allegations against him and did not think he would have put up with such treatment because he was a mouthy, loud, big boy who could lose his temper. He did not remember him injuring his foot or being in plaster. He took residents, individually and as groups, to his home for a visit and this included PH. He never molested PH. He had no specific recollection of PD but said he did not molest him. As for the music room described by PD he said it was more like a corridor and did not have chairs as described by PD and no private facilities to commit such offences. He was not aware of any vendetta or dislike that PD may have acquired against him.
37.
He remembered PV as having moments of being extremely troublesome and volatile who was objectionable to everybody, kicking, spitting, fighting and using foul language. Two weeks after he arrived at the Home she had a fight with one of the other residents. If anything of a violent or disruptive nature had occurred when she lived downstairs in the Warden’s flat, it would have been heard upstairs. When he helped her move into Borough Road nothing happened and he left her on the basis that he would not abandon her but pop in from time to time if she wanted. He tried to go once a week for half an hour and other people at Parkside knew he was calling on her. She would ring on occasion asking him to go. He remembered friends being there when he visited, but he denied he was there for hours as KR had said. As for her pregnancy, he did not ask who the father was but simply advised her to go to her GP. He gave her advice about drinking and paying her way and occasionally took her small quantities of food.
38.
He remembered JA at Othona and spoke to him about his behaviour. He denied he had had a caravan, or access to one, at Squirrel Park in Formby. He had no recollection of a flat being decorated in Othona where JA had said some of the offences had taken place. Whilst at Othona he did not know that JA had a history of sexual abuse from previous residences. He was not surprised that PH had not confided about the abuse he had suffered from Mr Dick or that PV had not disclosed to him her abuse at the hands of Mr Simkins. Although his caring for PV after she left Parkside was not part of his contract he did it out of a sense of duty and conscientiousness if young people asked him. Cross examined about a child care review held at Parkside on 20th May 1981 when it was recorded that PV had become very attached to him and that such contact should be reduced, he said that in the geographical sense he did not go out of his way to go and see her. Initially he called once a week but that was reduced to occasions when she telephoned asking to see him and he would stay 10-20 minutes or less if she had friends there. There was, in fact, some evidence from the Parkside log of PV phoning on 5th December 1985 and a message for him to phone her on 10th January 1986. By that time he thought the ‘crush’ crises was over and things had moved to a greater maturity between himself and PV. He did not remember seeing KR there at PV’s place and said he visited other people over a period of years after they had left. He might have pecked PV on the cheek as a form of affection when saying goodbye. He did not arrange any specific care after her termination.
39.
On the day of her move (the first allegation of rape) he did not see any residents but thought he saw Maggie the house mother. He was sad and sick at PV’s allegations because he had spent a lot of time trying to help her and could think of no reason why she should make them. He had made no records of taking children on trips out of the establishment. He did not remember ‘Sid’ as a bully in the home. None of his visits to see PV or others were recorded but there was no sinister reason for that.
40.
The appellant called witnesses on his behalf:
Diane Williams was interposed during the evidence given by the appellant. She worked in the care system and in 1994 was deputy team leader. The appellant was her superior. She remembered the name ‘JA’ but could not put a face to him. The appellant responded well to the boys and had a good relationship with them. She never heard any complaint about him.
Pauline Riley, George Lynch, Margaret Austell, Jack Nuttall, Helen Johnson, Michelle Kanavan, Ann Matteo all worked with the appellant and gave positive evidence of his work at the Home as did Michelle Burnside who was resident at St Vincent’s for 4 years and Darren Levy a resident at Parkside for 4 years.
Mrs Jane Sutton (the appellant’s wife) gave evidence attesting to their normal sex life and the fact that her husband had not made any unorthodox sexual demands or indicated any homosexual inclinations.
41.
Application to adduce new evidence
Mr Anthony Jennings QC for the appellant applied to adduce no less than 26 items of new evidence. We received all this evidence de bene esse and indicated we would rule on his application in the course of our judgment. It is convenient to do so before considering the grounds of appeal upon which reliance is placed.
42.
In relation to PH, application was made to adduce (1) his school report of 7th April 1981 and (2) his statement of 1st November 1999 made for the purposes of civil proceedings. Both these documents were available and were disclosed at the time of trial. They are, moreover, peripheral to the issues raised by the grounds of appeal and we have therefore decided not to allow reference to be made to these documents. Next, application is made to adduce (3) a letter of 25th November 1999 written by Detective Superintendent Robbins to PH’s solicitors which was not disclosed at trial. This letter is central to ground 9 of the Grounds of Appeal and we have decided that the appellant should have leave to adduce that letter. The Crown contended that if such leave was given, they would wish to adduce a statement from Detective Sergeant Thomas of 24th November 2004 more fully set out hereafter and Mr Jennings said that he would not object to our reading that statement. Next the appellant sought to adduce (4) evidence of PH’s application of 2nd September 1999 to the Criminal Injuries Compensation Authority (“CICA”), received by them on 10th September 1999 and (5) the outcome of such application, dated 11th December 2001, in the sum of £3,750. The application was made before the appellant’s trial but the award was made after that trial. We have decided that both the application and the outcome should be adduced in evidence.
43.
In relation to PD, application was made to adduce:-
(6)
his criminal antecedents;
(7)
various social enquiry reports and parole board decisions in relation to his offending;
(8)
a statement from Ms Barbara Taylor of 8th January 2001 relating to PD’s frequent absconding;
(9)
PD’s application to CICA for compensation of 13th November 2001 (made after the appellant’s trial);
(10)
PD’s authority for the initiation of civil proceedings dated 19th January 2000;
(11)
A statement to police from a social worker John Donnelly of 8th November 2000 that he had visited a certain Lee Dugdale two days previously in prison in relation to a trial in which Dugdale was an intended complainant. Dugdale had told him (among other things) that while he was being moved from HMP Long Lartin to HMP Garth on 6th or 7th September an unidentified male fellow prisoner had informed Dugdale that he was making abuse allegations to claim compensation;
(12)
A statement of DC Peter Thomas of 13th November 2000 in which he said he was following up the statement made to John Donnelly and went to see Lee Dugdale on 9th November 2000. Dugdale identified the prisoner with whom he was travelling from HMP Long Lartin as PD and repeated that PD had said he was going to make false complaints to get financial compensation. When asked if he would make a written statement, Dugdale said he wanted nothing more to do with the police and walked out of the room. This statement was part of the unused material and was available to the defence at trial, although John Donnelly’s statement (No 11 above) was not, since the Crown did not appreciate its possible relevance in its anonymised form;
(13)
A statement of Lee Dugdale of 10th September 2001 made after the trial without saying to which person the statement was made. It repeated the allegation in relation to PD and did not say whether Dugdale was prepared to give evidence. The application to include this statement included a further application to admit a statement of 12th August 2003 from Jane Hutcheson assistant solicitor in Bindman & Partners (the appellant’s now solicitors) in which she said she had visited Dugdale in HMP Blakenhurst on 5th August 2003 and that he had read and confirmed the statement of “10th October 2002” (sic). She added that Dugdale was not willing to attend and give evidence in the appellant’s appeal because, as he put it, fellow inmates objected to what they viewed as his “giving evidence for nonces”. Despite this Mr Jennings for the appellant originally hoped pursuant to a witness order of this court to call Dugdale in person in support of his statement. Unfortunately he was badly stabbed (causing a chronic abscess of the right lung) shortly before this appeal was due to be heard and could not attend court. Mr Jennings therefore applied to adduce his evidence in statement form, pursuant to
sections 23
-26 of the
Criminal Justice Act 1988
on the basis that he was unfit to attend. The Crown submitted that, if this statement were to be received in evidence they would wish to adduce evidence from Detective Sergeant Thomas in accordance with his statement of 14th December 2004 to the effect (1) that, although Dugdale had claimed to be a victim of alleged abusers and had apparently been prepared to be a witness at the trial of other alleged abusers, he did not give evidence at any of the trials; and (2) that on 18th December 2000 the Crown Prosecution Service advised that Dugdale should not be used in any future trials. D/S Thomas was, with our permission, called to give his evidence subject to our ultimate ruling; he confirmed this evidence but said he was unable to say why the CPS had given the advice which they did. The Crown further relied on the fact that by 23rd August 204, Dugdale had been convicted of or pleaded guilty to 70 offences.
(14 & 15)
A letter from a firm of solicitors to Barnardo’s of 4th May 2004 together with a copy of Barnardo’s log of 5th April 2001 in which it is suggested that PD’s social worker was unhappy that Barnardo’s were counselling PD before trial. These were not available at the trial;
(16)
A report of Helen Roberts, Forensic Clinical Psychologist, about PD dated 12th June 2003 (and thus unavailable at trial) in which she stated, inter alia, that PD’s principal problem was drug abuse but also said that he had said he had told the matron at St Thomas’s of his abuse. The significance of this is that at trial he had said he had never told anyone of the alleged abuse;
(17)
A pre-sentence report compiled for Leeds Crown Court on 20th June 2003 showing that PD explained his criminal behaviour as being due, at any rate in part, to abuse while in care. This was not available at trial.
44.
We have decided to receive items (6), (7), (9), (10) and (14)-(17) on the basis that they were not available at the trial (save for (10) which, however, needs to be seen now in the context of (9)). Item (8) was available and disclosed at trial; it could have been presented in evidence but was not. The jury, however, knew perfectly well that PD was a persistent absconder; whether the number of times he absconded was 24 as put to him or rather more as item (8) might suggest was of little consequence.
45.
Items (11)-(13) are, however, the critical items in relation to the counts in relation to PD. We have decided that it would not be right to admit these items. (11) goes nowhere since PD is not identified; (12) was available at trial and disclosed to the defence. If the defence had wanted to call Dugdale at trial they could have done so. In the light of Dugdale’s reluctance to attend he would have to have been the subject of a witness summons and could well have been a highly dangerous witness to call. It is not in the least surprising that he was not called. It is no doubt unfortunate that he could not be called before us due to his medical condition but it would not, in our judgment, be right to admit, pursuant to
the 1988 Act
, a potentially controversial hearsay statement which cannot be challenged by cross-examination, when the evidence to which it relates was available but not called at the trial.
46.
In relation to PV application was made to adduce:-
(18)
Records of telephone messages left for the appellant at Parkside showing that PV had telephoned and wanted to speak to him. An agreed schedule of these calls was compiled for the purpose of this appeal showing that calls had been made on 10th April, 13th April and 19th July 1984, 21st June, 2nd July and 13th November 1985 and 10th July and 27th August 1986, being 8 calls over a period of 2 years and 4 months;
(19)
PV’s application to CICA made on 20th July 2001, 17 days after the conclusion of the trial;
(20)
PV’s award from CICA in the sum of £16,500.
We have decided we should receive these items, as further evidence on this appeal.
47.
In relation to JA application was made to adduce:-
(21)
A report dated 15th December 1998 made by Probation Officer Pete Nowell on JA after he had received a life sentence for murder on 31st July 1997. This referred to abuse JA had purportedly received at the hands of the appellant;
(22)
A statement of 16th December 2004 from the journalist David Rose saying that together with Claire Curtis-Thomas, MP for Crosby, he visited JA at HMP Wakefield on 20th September 2001 (10 weeks after the appellant’s conviction) and that JA had made it clear that he had been lying when he gave evidence at the appellant’s trial. Mr Rose gave oral evidence to us in accordance with this statement and said that he had made notes of his meeting (which he produced) and had sent those notes to Mr Chris Saltrese who was “then” acting for the appellant. He had seen a copy of JA’s subsequent signed statement of 24th September 2001 retracting his evidence which he believed Mr Saltrese prepared for JA to sign;
(23)
A statement of 24th November 2004 from Mr Chris Saltrese who said that, with Ms Curtis-Thomas MP, he visited JA on 24th September 2001 taking with him a typed statement prepared from information obtained by Mr Rose. He read through the statement with JA who made two small amendments and then signed it. He gave oral evidence to us confirming his statement but, rather remarkably, said (1) that he thought JA’s statement had been prepared by Mr Rose and (2) that he had never asked JA if he was prepared to come to court to give evidence in accordance with his statement;
(24)
The statement of JA dated and signed by him of 24th September 2001 in which he said that the appellant had never abused him and that everything he (JA) had said in court (and to the police) was a fabrication from beginning to end. He claimed that the reason for these lies was that the police had told him in prison that, if he did not say the appellant had abused him, he would be accused of targeting gay men in the course of his crimes and, therefore, be classed as a sex offender required to participate in a sex offender treatment programme;
(25)
A copy of JA’s diary compiled while in prison awaiting trial for murder describing how he had killed his victim in terms which amounted to an admission of murder;
(26)
The decision of the Criminal Case Review Commission on 17th May 1999 refusing to refer JA’s conviction for murder to the Court of Appeal.
48.
We do not see the relevance of items (21), (25) and (26); both items (21) and (25) were, in any event, available at the appellant’s trial for use, if anyone had thought them relevant. Items (22)-(24) were not available at trial and, if JA’s retraction is inherently credible, should, we think, now be received in evidence. The problem with them is that JA, despite being available, has said that he is not willing to come to this court in support of his September 2001 statement. We do not, however, think that it would be right, in all the circumstances, to refuse to receive items (22)-(24) (and the accompanying oral evidence of Mr Rose and Mr Saltrese); we will accordingly admit this evidence as evidence that JA made the statements which he is recorded as having made. In due course we shall consider the effect of having admitted this evidence.
49.
We accordingly turn to the grounds of appeal.
50.
Grounds of Appeal
Some grounds of appeal raise particular points in relation to particular complainants; others are general grounds. We will take the general grounds first (grounds (7)-(11)). One point must, however, first be emphasised. In the appellant’s perfected advice it appeared that there might be some criticism of the defence team at trial. This criticism was never a ground of appeal and, by the end of the hearing, Mr Jennings for the appellant had accepted that any criticism he had of the defence team was not sufficient to constitute a ground of appeal.
51.
Inadequate warning about relying on unsupported evidence of the complainants (Ground 7)
Now that juries no longer have to be directed about corroboration as a matter of law, the question whether any warning about relying on unsupported evidence of complainants in sex cases should be given and, if so, what the terms of such warning should be is very much a matter for the trial judge, see
R v Makanjuola
[1995] 2 Crim App Rep 469.
52.
In the present case the judge made four separate points about the approach which the jury should adopt to the complainant’s evidence. He first reminded the jury (6A-F) that the male complainants all had previous convictions, two of them having “very serious” convictions of offences of violence and dishonesty. The female complainant, though of good character in a formal sense was rebellious, aggressive and angry about having been brought up in care. For these reasons the jury should approach the witnesses’ evidence “with particular caution”. Secondly the judge pointed out (6F-7B) that none of the complainants’ evidence in relation to any particular count was supported by any other evidence; he added:-
“So you must approach each complainants’ evidence with care for the reasons I have indicated and have regard to the criticisms which are made of each of those witnesses.”
Thirdly he reminded the jury (7B-C) that they had to be sure that the witnesses were individually honest and accurate before they could convict. Fourthly (7D-8C) he said that, even though the defence did not suggest that there was any collusion between the complainants, the jury should consider the question of collusion and that, if they thought there might have been collusion, the evidence of relevant witnesses would be worthless.
53.
Mr Jennings for the appellant submitted that the case called for a much stronger warning about the dangers of relying on unsupported evidence. We do not agree; it was for the judge to gauge the strength of the warning he was to give the jury in the context of the case as a whole. The warning he gave was significant; this court would be wrong to criticise judges who gave warnings which might be somewhat different in terms from the warnings that individual judges of this court might have given. The warning that the judge gave was comprehensive and entirely adequate for its purpose. It is to be noted that the jury had no difficulty in acquitting the appellant of a number of counts.
54.
Mr Jennings then submitted that if the judge had known the facts that we have now admitted as further evidence particularly the facts (1) that PD and PV had made compensation claims after saying in PD’s case that he did not know he could and in PV’s case that she would not do so and (2) that JA had retracted his evidence, he would have given a stronger warning. This seems to us to be the wrong approach. If subsequently admitted evidence causes us to doubt the safety of the convictions that is sufficient for the appellant’s purpose; if it does not do that, it would not be right to use the “new” evidence as a ground for saying that an enhanced or strengthened warning should have been given and that, in its absence, the convictions are unsafe.
55.
Inadequate warning about the consequence of delay in making complaints (Ground 8)
Mr Jennings made a sustained attack on the inadequacy of the delay warning given in this case. In the light of that attack we should set out in full the part of the summing-up which deals with delay (4A-5H):-
“One factor in this case which you must consider in conjunction with the standard of proof is the question of delay. This case has been concerned with events which allegedly took place a long time ago. The oldest counts, the PH counts, 20 years ago in round figures, the most recent counts, JA, up to eight years ago. You must have in mind that the defendant may have been prejudiced by the delay and such possibility must be in your minds when you decide whether the prosecution have made you sure in respect of each or any of these counts.
A number of factors arise which you must consider. Firstly, ask yourselves this; why did these matters not come to light sooner so they could have been tried within a year or two years of the allegations arising? Does the fact that these allegations arise at this point of time reflect on the reliability of the complainants? Or does the fact that these charges have arisen at this time suggest recent invention of the complaints, recent fabrication, as it is sometimes called? That is the first thing.
Secondly, make allowance for the fact that memory obviously fades, memories on all sides fade over a period of 20 years and as a result evidence of about certain aspects of the case may be vague and may be unspecific. Thirdly, from the defence point of view the older a charge is the more difficult it may be for the defendant to answer it.
You have become aware during the course of this evidence that both sides have had access to large numbers of documents and files from Social Service departments, from Nugent Care, from hospitals, from doctors and so on, psychiatrists and psychologists and even the Prison Service. Those records have been used extensively during the course of the evidence to try to cast light on the events of many years ago but in the nature of things those records are on occasions incomplete and inconclusive. Where there has been ambiguity, where there has been doubt in relation to those records it has been impossible to resolve such doubt because generally speaking the witnesses responsible for creating those records are untraceable. So bear that in mind.
You may well take the view that in a case of this sort delay is entirely understandable, that in the nature of things people who have been the victims of this sort of abuse, if indeed it happened, store it away for years and it comes out later for some particular reason, the complaint is prompted by something. But even if you believe that the delay is understandable if you think the defendant has been put at a real disadvantage by the fact that these charges come to light in 2001, for trial at least, then you must take that into account when considering whether the prosecution has proved its case in relation to each of these charges.”
56.
There are two main criticisms. The first is that, contrary to the JSB standard direction, the judge made no effort to single out particular instances where the absence of records or witnesses might have prejudiced the appellant. The second is that such good effect as the direction might have had was nullified by that part of the direction which said that the jury might take the view that the delay which had occurred was understandable.
57.
In relation to the first complaint, the most relevant prejudices which the judge ought to have highlighted were said to be:-
(1)
the absence of the register of St Thomas More’s home, which might have enabled the appellant to say where he was on particular days;
(2)
the absence of hospital records which could have confirmed whether PH had been admitted for an anal injury;
(3)
the death of the headmaster of St Thomas More’s thus preventing any inquiry whether PH had complained to him;
(4)
the death of the matron there who could not confirm whether (as the subsequent psychological report of Helen Roberts of June 2003 had indicated) PD had made a complaint to her.
58.
As far as written records are concerned, there were as the judge said “large numbers of documents and files” from (among others) hospitals, doctors, Nugent Care and Social Services departments. In this context, the absence of the St Thomas More register was peripheral at best particularly for the help it might give as to the appellant’s (rather than the complainants’) movements. One incident after which PH was taken to hospital was that alleged in count 14 in relation to which PH said he had been pushed downstairs by the appellant and then buggered at the bottom of the stairs. That was a count of which the appellant was (for whatever reason) acquitted, so it is difficult to see how any gap in hospital records could have prejudiced the appellant as matters have turned out. The absence of relevant hospital records cannot make unassociated counts unsafe. Insofar as PH claimed there were other hospital visits, such visits were not associated with any particular count. Moreover, once judge and jury have a “large number” of contemporary documents, it is difficult for a judge to highlight the absence of a particular record without indicating how a defendant might be affected. In such cases a general warning is adequate.
59.
Absence of evidence from the headmaster and the matron is equivocal at best. If they had said no complaint had been made, it is difficult to see how the appellant’s case could be bettered; if they had said complaints were made that might or might not have affected the complainants’ credibility at trial. The jury could have taken the view that, even if the complainants had forgotten that they had made such complaints, the complaints did in fact support the complainants’ evidence. One can understand the judge’s reluctance to highlight the absence of evidence from the matron or headmaster on this topic.
60.
Complaint was also made that the direction on delay was tied to the direction on the burden of proof. We think that the judge was justified in dealing with delay in this manner. To the extent that delay results in the absence of evidence (which is the appellant’s complaint), that absence of evidence means that a jury will sometimes feel that it cannot be sure that the complainant’s evidence is reliable. It is, in this way, an aspect of the need for the jury to be satisfied that the prosecution has made out its case. This is confirmed by
R. v Smith
(unreported, 20th December 1999, No 99/01664), one of the cases relied on by Mr Jennings in support of his proposition that the judge should direct the jury as to particular reasons why a defendant may have suffered delay in a particular way. In that case Evans LJ said (page 17):-
“The judge’s primary concern should be to ensure that the jury pays ‘conscientious’ regard to the burden and standard of proof . . . The reason is, in our view, that the jury should be reminded that the fact of delay means that the evidence should be scrutinised with particular care, before they can conclude that they are sure that the defendant is guilty of the specific offence or offences charged against him.”
and later (page 22):-
“Care must be taken to ensure that the burden of proof is not effectively reversed.”
Subject to the second main complaint, we consider that the direction on delay was sufficiently tailored to the facts of the case and was an adequate direction.
61.
That leaves the complaint that the judge nullified the effect of the direction by inviting the jury to think that the delay was understandable. This is an unfair categorisation of the judge’s final paragraph. The jury can hardly have failed to ask themselves why the delay had occurred since the absence of prior complaints figured largely at the trial and it is well known that complaints of abuse do sometimes surface long after the incidents constituting that abuse have occurred. It is not impossible that some members of the jury might think that delay (for whatever reason) is understandable. Any judge would wish to set that understanding in its proper context and that is what Judge Lewis did by saying that, even if the jury believed that the delay was understandable, they should take into account (viz. in the defendant’s favour) any real disadvantages into which the defendant had been put by the fact that the charges came to light in 2001,
“when considering whether the prosecution has proved its case in relation to each of those charges”.
Read as a whole, this direction does not nullify the delay direction; it expands and amplifies it. Again, one must remember that the appellant was acquitted on a number of counts.
62.
Non-Disclosure (Ground 9)
In the course of what may be called the
Williams-Rigby/Lawson
appeal to this court in early 2003,
[2003] EWCA Crim 693
, a case where the appellants had been members of staff at the SG Residential Community Home near Liverpool between 1976 and 1984, certain documents were disclosed by the Crown which Mr Jennings says should have been available to the defence at the appellant’s trial in 2001. The documents do not seem to have played any part in the decision of the court on those appeals; most of the documents deal with the position of Detective Superintendent Robbins who was the senior detective in charge of “Operation Care” investigating cases of alleged child abuse in Merseyside and, after retirement, worked for a firm of solicitors Abney Garsden MacDonald (“AGM”) assisting them to co-ordinate claims for civil compensation by victims of alleged abuse, whether brought against local authorities in charge of schools or homes where abuse allegedly took place or made in the form of applications to CICA.
63.
These documents are said to show that D/S Robbins was aware that complainants in the Operation Care cases had made statements in support of compensation claims and that solicitors exchanged their clients’ statements with other solicitors whose clients were also making claims. It is further said that when Mr David Rose, the journalist to whom we referred in item (23) above, put to D/S Robbins that he asked solicitors to advise their clients to postpone making claims for compensation until the conclusion of criminal proceedings, he had agreed that he had done that in order to make the complainants’ evidence look more credible in the criminal court and justified his conduct by saying that he was just trying to get a conviction. In the event no application to call Mr Rose to give evidence in respect of this statement was made but we were asked to admit and have now decided to admit in evidence the letter of 25th November 1999 from D/S Robbins to PH’s solicitors about his case. In that letter D/S Robbins said that he could not release PH’s statement since the police were still investigating his alleged abuse. He said (correctly as it turned out) that the conclusion of the investigation and any prosecution would be months away and added:-
“In any event I always advice caution regarding the commencement of compensation claims as defence lawyers have suggested victims’ evidence may be tainted by monetary gain.”
In fact PH did make a compensation claim before trial and was cross-examined about it. Disclosure has now been made of other similar letters written to solicitors for complainants and one of 25th February 1999 to a particular complainant (not in the present case) advising him not to begin civil proceedings until he had given evidence in the criminal trial.
64.
Also disclosed is the fact that in 1997 Mr Garsden of AGM had written to D/S Robbins saying that an exchange of correspondence could “damage the prosecution case” a remark which D/S Robbins said, in a letter to Mr Garsden of 25th November 1997, “will be seized upon”. A police policy document and power point slide of 24th August 1998, perhaps intended to be shown to solicitors for complainants, stated:-
“It must be remembered that it has been a consistent defence tactic to allege that victims are motivated to make allegations by potential financial reward. Any investigation should negate this from the outset by ensuring that no discussion takes place on this subject between the investigator and the victim.”
Disclosure has also been given by the Crown of a solicitors’ attendance note of 3rd December 1998 in which a Mr Peter Cromer of Liverpool Social Services said that he felt it was advantageous in criminal proceedings if witnesses could answer “No” to a question whether they had made a compensation claim. It appears, moreover, that there was a suggestion made by a complainant in the Williams-Rigby trial (but about 3 years after that trial had taken place) that all the complainants in that case were brought into a room and told by a police officer (not suggested to be D/S Robbins) that if the issue of compensation was raised they should say that they had not made a claim.
65.
In response to the suggestion that the Crown should have disclosed all this material before the appellant’s trail and that the defence could have, therefore, been more forcefully placed before the jury than it was, the Crown also disclosed a synopsis of the material held on what was called the “HOLMES indexing system”, a computer system created to cope with the numerous claims being investigated by “Operation Care”. This showed that PH was the only complainant in the present case to whom or to whose solicitors a letter was sent of any similar nature to those in fact sent by D/S Robbins to Messrs Pictons on 25th November 1999. We have already indicated that the Crown also submitted that we should receive a statement from the Deputy to the Senior Investigating Officer of Operation Care, Detective Sergeant Graham Thomas of 24th November 2004 explaining how he had interrogated the HOLMES Indexing system and also Operation Care civil litigation databases and had elicited that out of 776 letters held on such systems only 9 other letters worded similarly to the letter of 25th November 1999 could be traced; none of the 9 letters referred to any person who was a complainant against the appellant. Mr Jennings did not object to our reading this statement of D/Sgt Thomas, provided that we paid the requisite regard to the new documents which he complained had not been disclosed.
66.
Mr Jennings then submitted that the combined effect of this material was that the police, complainants’ solicitors and employees of social services were advising complainants not to apply for compensation before trial and to deny being interested in compensation since they had not yet made any claim. The material ought to have been disclosed and the defence could then have investigated with complainants and police officers “whether there had been police irregularity in respect of compensation”. The result would have been that the appellant’s defence would have been more forcefully deployed before the jury.
67.
We cannot accept these submissions. Of course, police priming of witnesses would be irregular in the highest degree but there is no evidence of that having happened in the present case. The highest that Mr Jennings can legitimately put his argument on the material relevant to this appeal is to say that D/S Robbins perhaps suggested to some complainants’ solicitors that any claim for compensation should await the outcome of criminal proceedings. PH (the only complainant in this case to whom the suggestion was made) in fact did make a claim before the criminal proceedings concluded; PD and PV, to whose solicitors no such letters were written, did not but made their claims soon afterwards. JA, the murderer, has never made a claim – not surprisingly. We do not see how the appellant’s case could have been materially improved by disclosure of the material now sought to be relied upon.
68.
We would, however, add that even if the police had generally discouraged complainants’ solicitors from instituting civil proceedings before the conclusion of criminal proceedings, we would not consider it irregular for the police to have made the suggestion which they did. A criminal trial is, of course, not an ideal venue to investigate police irregularity at the best of times. The issue for this jury, as they must have been very well aware, was whether the fact that PH had made a claim for compensation and the fact that PD, PV and JA might make such a claim in the future made their evidence unreliable. In relation to those counts on which the appellant was convicted, the jury decided that the evidence of the complainants was reliable and their verdicts followed accordingly.
69.
It must be remembered that even if the complainants were motivated to give evidence of abuse by the hope or expectation of compensation that does not, of itself, make their evidence untrue or unreliable. It is, of course, a perfectly acceptable tactic on the part of the defence to suggest that a complainant may be motivated by the prospect of compensation and that such motive may make that complainant’s evidence unreliable. We cannot see that it is an unacceptable tactic for complainants to defer (or for their solicitors to advise them to defer) making a final decision on whether to claim compensation until after the conclusion of the trial. Whether their evidence is therefore unreliable is just one of the many difficult decisions a jury has to make in a case such as the present. That is what we have juries for. It would not be right for this court to decide that the hope of compensation makes the evidence of a witness suspect and set aside a conviction for any such reason.
70.
Eliciting “Expert Evidence” from Appellant (Ground 10)
The objection here is that counsel for the Crown at trial (not Mr Riordan QC) asked inappropriate questions of the appellant with a view to establishing the reason for delay on the part of the complainants in making their complaints. In particular the appellant was asked about “the three guilts” which it was suggested might be felt by complainants and deter them from complaining. This would be a matter for evidence from an expert in child abuse, if it were to be placed before a jury at all and the Crown had never proposed to adduce such evidence as part of its case. In these circumstances Mr Riordan accepted before us that such questions should not have been put to the appellant.
71.
We cannot accept, however, that the convictions are unsafe for this reason. A colleague of the appellant, called on his behalf, gave some evidence of the guilt experienced by the victims of sexual abuse and she had had training in the field of child protection. Although Mr Jennings submitted that she was not technically an expert qualified to give opinion evidence to the jury, it is difficult to imagine any objection to her cross-examination being sustained. In fact no objection was made to the questioning of this colleague (nor indeed to the questioning of the appellant himself). The judge did not refer to this questioning in his summing-up and we do not consider that the appellant was placed in an unfair position in the context of the trial as a whole.
72.
Cross-examination of Appellant which implied a sexual liaison with one of the witnesses called on his behalf (Ground 11)
The relevant witness was interposed during the appellant’s own evidence because she was going on holiday. After the evidence was given, the Crown suggested to the appellant that she had given such evidence because she had had a sexual relationship with the appellant. No such suggestion had been put to the witness while she was giving evidence. Mr Riordan accepts that the cross-examination of the appellant was inappropriate. The appellant strenuously denied the suggestion however; no reference to the suggestion was made in the remainder of the trial. We cannot accept that the convictions are unsafe for this reason.
73.
We turn, therefore, to the grounds affecting the individual complainants.
74.
PH: inconsistency between verdicts of conviction on count 4 and verdicts of acquittal on counts 5-8 (Ground 1) and counts 9-15 (Perfected Advice, para. 12)
Count 4 was a specific count of buggery, occurring on PH’s bed in a dormitory at St Thomas More’s; counts 5-8 were specimen counts of buggery which were alleged to have occurred on many other occasions in the dormitory or in the toilets. On these counts the appellant was acquitted; there were other specimen counts of buggery relating to occasions when one or more other (older) boys were said to be present, laughing, joking and threatening PH; on these counts, the appellant was also acquitted either by the jury at the end of the trial or (in the case of counts 13 and 15) on the direction of the judge.
75.
It is well accepted that, if inconsistency is alleged, it is for an appellant to show that the verdicts are such that no reasonable jury could arrive at the conclusion reached, see
R v Durante
56 Cr. App R 708. This is always difficult and in this case it is impossible. The jury were sure that PH’s evidence as to the first act of buggery was reliable; they may well have thought that his evidence of later specimen acts of buggery was exaggerated or too indefinite to be sufficiently reliable for a conviction. In our judgment there is not even a logical inconsistency between the conviction on count 4 and the acquittals on counts 5-15, let alone anything to show that no reasonable jury could have arrived at the decision of this jury. Mr Jennings pointed to various inconsistencies in PH’s evidence but that of itself cannot come anywhere near to demonstrating that the verdicts were inconsistent.
76.
PD: The “fresh evidence of Dugdale” shows that PD had a motive to lie (Ground 2)
Now that we have decided that we ought not to receive the hearsay “evidence” which Dugdale could, in any event, only give by way of written statement, this ground falls away.
77.
PD: his subsequent application for compensation shows that PD had a further motive to lie (Ground 3)
In evidence PD said that he did not know that he could claim compensation until the appellant’s counsel had mentioned it in cross-examination and that he had not done so. We have admitted evidence that he did make such a claim on 13th November 2001. His claim was in fact refused because of his record. PD’s solicitors have also confirmed that he intends to sue the Nugent Care Society in respect of his abuse.
78.
We have already observed that the hope or expectation of compensation does not, of itself, make the evidence of a complainant unreliable. There is no reason why, even if a complainant intends to make a claim, he or she should do so before criminal proceedings are concluded. If a complainant is asked whether he intends to make a claim and says that he did not know that he could claim compensation, it is for the jury to assess whether such answer is or may be truthful and whether, if they think that that evidence is or may be untruthful, that affects the reliability of the evidence of the acts of abuse. Counsel then appearing for the Crown said in his speech that the latter 3 complainants said they had no intention of making any application for compensation and that that was not why they were giving evidence. Counsel then appearing for the defence reminded the jury that there was a potential for a change of heart after the trial as far as compensation was concerned. The jury heard the evidence and the submissions; the fact is that they convicted after such evidence had been given and such submissions were made. That does not mean that the convictions are, in any way, unsafe.
79.
The other evidence we have received in relation to PD is all peripheral. Although it does appear that PD did not use his account of sexual abuse to curry favour with the authorities before the trial, his parole report of 17th February 2001 does refer to it. Given the obligation of those administering the parole system to understand the background of an offender and his offending in order to assess risk to the public, it is not surprising that the parole report includes that information. This cannot, however, show that his evidence at trial was false or unreliable. It is, no doubt, unfortunate that the matron whom he said in 2003 he had told of his abuse, has died; but that can hardly affect the reliability of his evidence; if the jury had heard defence counsel putting that to PD, they would either have concluded that his telling the matron supported his evidence or that he was inventing the incident when he told Mrs Roberts about it.
80.
PV: subsequent application for compensation shows a motive to lie (Ground 4)
The only difference between this ground and the previous ground is that PV did not claim to be ignorant of her possibility of compensation but merely stated that she did not intend to claim it. She in fact sent a claim to CICA 17 days after trial on a form which she must have previously received and, in due course, she obtained an award in the sum of £16,500. There is thus no difference of substance between her position and that of PD and this ground of appeal is dismissed for the same reason.
81.
We decided to admit the evidence of the number of telephone messages left for the appellant by PV at Parkside since it has emerged since the trial that there were more of these than had been originally thought. This fact does not, however, cause us to think that the convictions in relation to PV are unsafe. PV had denied making any calls (Summing-up 36B). It was known that there were in fact some calls and that fact was put to her and referred to by defence counsel in his speech (888F) and the judge in his summing-up (57D and 59E). The fact that it now transpires there were more calls than previously thought is of no consequence. PV was also cross-examined about her straitened financial circumstances, her failure to mention her abuse at earlier stages in 1997 and March 1998 when she made allegations in respect of other individuals and her previous history. All these matters were before the jury; yet they decided she was a witness of truth. The convictions in relation to her are not unsafe.
82.
JA: his retraction and diary evidence (Grounds 5 and 6)
The convictions in relation to JA are rather different, although we do not consider the diary evidence to be of any consequence. We have already expressed our reservations about admitting the evidence of Mr Rose and Mr Saltrese about JA’s retraction of his evidence at trial. We have nevertheless decided that we ought to admit the evidence of that retraction as contained in his signed statement. In most cases this court would expect a victim, who sought to retract evidence which he had given at trial, to come to court and explain why he gave evidence which he now says was untrue. As a prisoner serving a life sentence, an order could be made for his production but the court would have no effective sanction over him, if he were produced and continued to decline to give evidence. This matter was raised before the court on 30th January 2004 when Mr Jennings told the court, without dissent from Ms Loftus, that an approach to JA on behalf of the Crown had been made and that JA had refused to co-operate. Thus the current position is that he has refused to confirm or deny that he retracts his evidence. This parallels the position before trial when, having made an initial statement to the police, he sought to retract it. In the event, however, he did give his evidence to the court. The court is therefore left in a state of complete uncertainty on the vital question whether his evidence at trial was reliable. All that can be said is that JA has had every opportunity to come to court and support the evidence he gave at trial but he has declined to do so. In the peculiar (and, we believe, unprecedented) circumstances of this case, we have decided that we cannot be sure that the appellants’ convictions on the counts relating to JA are safe. It follows that those convictions which together carried a sentence of 4 years imprisonment will be quashed.
83.
Conclusion
Since it has never been suggested that any of the complainants have colluded together and since it was never suggested either that the jury could use a conviction on any count in relation to any one complainant as support for convicting the appellant on any count relating to any other complainant, it does not seem to us that the unsafety of the conviction in relation to the counts concerning JA can have any effect on the safety of the convictions in relation to the other complainants. Mr Jenning’s argument to contrary effect must be rejected.
84.
It follows that the appellant’s sentence will be reduced from 14 years to 10 years imprisonment. To that extent his appeal is allowed. | ```yaml
citation: '[2005] EWCA Crim 190'
date: '2005-02-03'
judges:
- LORD JUSTICE LONGMORE
- MR JUSTICE LEVESON
- 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:
[2009] EWCA Crim 1618
Case No:
200804208/C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 19th June 2009
B e f o r e
:
LORD JUSTICE RIX
MR JUSTICE GRIFFITH WILLIAMS
THE RECORDER OF CARDIFF
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - -
R E G I N A
v
WILLIAM DAVID CODSI
- - - - - - - - - - - - - - - - -
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 Dunn-Shaw
appeared on behalf of the
Appellant
Mr M Pinfold
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE RIX: This is an appeal against conviction which on the surface appears to be concerned with the simplest possible of factual situations but which in the course of argument has demonstrated that the matter was not by any means simple.
2.
On 8th July the appellant, William Codsi, in the Crown Court at Isleworth before His Honour Judge McDowall and a jury, was convicted of robbery on one count and acquitted of attempted robbery on another count. He was later ordered to comply with a community order with a requirement of 100 hours unpaid work and a supervision requirement to last 18 months. He appeals against conviction with the leave of the Full Court. The Full Court gave leave on the following single ground:
"The applicant seeks leave to appeal against his conviction on 8 July 2008 for robbery on the sole ground that the summing-up was unstructured, inadequate and defective in some material particulars including the elements of robbery and joint enterprise."
3.
The essential facts were that on 18th November 2007 two brothers, Henry and Edward Godfrey, respectively 18 and 16 years old were walking along Park Road in Chiswick when they were approached by the appellant and his friend, Vincent Dang, then also respectively 18 and 16 years old the appellant asked them for some money, following which Henry Godfrey handed over £2.20. Dang then asked Henry Godfrey for a further £20 and a mobile telephone. Henry Godfrey refused to give him anything else following which he walked away with his brother. Dang then pursued them and punched Henry Godfrey to the side of the head, following which he ran away. The handing over of £2.20 was charged as count 1, a count of robbery, in which the appellant was convicted. The request or demand for a further £20 and a mobile telephone was the subject matter of the attempted robbery (count 2) upon which the appellant was acquitted. No separate charge was brought in respect of the punch to Henry Godfrey's head by Dang.
4.
Police were called to the scene. They took descriptions from the two brothers, and shortly thereafter the appellant and Dang were found and arrested at Chiswick railway station. They were taken to the local police station where they were interviewed.
5.
The prosecution case was one of joint enterprise. Following the appellant's initial request for money, Dang made further requests which became stronger and more aggressive, such that they amounted to an implied threat. Whilst Dang was making these demands of the complainant, Henry Godfrey, the appellant was standing beside Dang and agreeing with him. That is a composite account of the prosecution case which, for present purposes, is an inadequate introduction to this judgment. However, it has emerged, in the course of the written and oral submissions during this appeal, that we are left in considerable doubt as to exactly how the prosecution did put its case. We will develop this point below.
6.
The defence case was that, at any rate so far as the appellant was concerned, no robbery had taken place. The appellant had simply begged Henry Godfrey for some money to buy cigarettes, following which the £2.20 had been handed over. The incident occurred in the appellant's own neighbourhood, where he was well known to local residents and was aware of the presence of CCTV cameras. It was Dang, who did not live in the area and had a number of previous offences for similar offences, who had threatened to pursue and punch Henry Godfrey. When we say that was the defence case, it was the case essentially developed through counsel's submissions at trial.
7.
The appellant gave no evidence at trial. He had however given an interview, albeit in the absence of any solicitor. In that interview, to put the matter as briefly as possible, he had denied doing anything that could amount to a threat or intimidation, and said that he had merely begged money for cigarettes. He also sought to exculpate Dang from any participation in any of these events.
8.
At the last moment Dang, who had pleaded guilty to both counts, gave evidence for the prosecution. His evidence was that following an initial request for money being turned down by the brothers, it was the appellant who told him to make the brothers hand over their money. He said that those instructions were given loudly enough for the brothers to hear. However, that part of his evidence was not reflected in the evidence of the brothers. He accepted that he had lied to police when he told them that he was not involved in the robbery and that the whole of it was down to the appellant. That is what he had said in interview. He also said that when he demanded the £20 and a mobile telephone from the brothers the appellant was no longer with him and he therefore exculpated the appellant from any participation in the attempted robbery.
9.
So far as appears from the summingup, the brothers gave evidence that they were repeatedly asked for money, that Dang became increasingly aggressive and that the appellant agreed with him. They also said that when Dang demanded the £20 and the mobile telephone from them, the appellant was still with Dang.
10.
Their evidence, however, and this is important in the light of the appellant's defence that, so far as he was concerned, he was only a beggar and not a threatener, therefore not a robber, was more complex and nuanced than a reading of the summing-up would indicate. For these purposes, we have to turn, not to the summing-up but to the skeleton argument of Mr Dunn-Shaw, who appears on behalf of the appellants, as he did at trial, for the detail of the brother' evidence. That detail is not disputed by Mr Pinfold, who appears on behalf of the Crown, as he did at trial.
11.
Thus Henry Godfrey's evidence was that two men had come up to them and asked for some money. At first for £1, which was refused, and then for £2. He said that it was the shorter one - that is the appellant, who was considerably shorter than Dang, a youth who is described as being of great height - who had made these initial requests. It was then the taller man, in other words Dang, who said: "Don't annoy me. Don't piss me off." The shorter one was asking for the money for cigarettes. In cross-examination Henry Godfrey said that he had seen the shorter one in the area before these events. He described the shorter one as "begging for money for cigarettes". He went on to say that things became ugly when the taller one got involved. He said that he had paid the shorter one, thinking they would go away. He was asked: "If the taller boy was not there, do you think you would have given the shorter one money just to go away? The answer: "Yes, that's fair."
12.
His brother, Edward, gave evidence, as follows. He described the defendants as crossing over the road to ask for some money for cigarettes, £1 at first. There was no threat in the first request: "After we refused they kept asking and asking. The taller boy became progressively more aggressive, not the shorter boy. The shorter boy did ask us for £1 but was definitely less threatening that the taller boy. The shorter boy was not too threatening but agreeing with the older boy."
13.
In cross-examination, he said that his brother had paid them to make them go away. The taller was aggressive. The shorter one agreed with him. The short one was begging. The taller became aggressive. He was asked: "Is it fair to say that if the taller hadn't intervened, there wouldn't have been no trouble?" To which he answered "yes". In re-examination he said again, that whereas the taller boy was aggressive in demanding money, the shorter boy was agreeing with him.
14.
Against that background, the ground of appeal which we have already recited is in effect an omnibus complaint that the judge in his summing-up failed, both to direct the jury properly as to the law as to the ingredients of robbery and joint enterprise, and also adequately to sum-up the evidence for the jury. As a consequence of both those failures, it is further submitted that the judge wholly failed to assist the jury in identifying what material parts of the evidence were relevant to any issue that was before them.
15.
Although it is accepted that the general issue of whether what was going on during these events was begging or robbery, nevertheless, as the submissions this morning have worn on, we have come to realise that it is impossible to distil from the summing-up exactly what the Crown's case was. The Crown's case might have been and possibly was, that from first to last, the appellant and Dang were, in the colloquial phrase used to express what lawyers call joint enterprise, "in it together". In that joint enterprise each was playing his own defined, understood, agreed and (it might even be said) rehearsed role that the appellant was, as it were, the beggar, asking politely, or as the judge, at one point in his summing-up remarked "the good cop" -- a slightly strange analogy but there we are. Whereas Dang, with his physically intimidating size was the aggressive partner, or what the judge described as "the bad cop". That might have been the Crown's case but in truth we are at a loss to know whether it was.
16.
Alternatively, it might have been the Crown's case that, even in the absence of an initial agreement for a joint enterprise of robbery, this was a case where what might well have stated as a mere matter of begging on the part of the appellant, became not only robbery on the part of Dang - that was an admitted fact before the jury - but a robbery in which the appellant had come to participate, either by that kind of a joint enterprise which can be described as encouragement, or simply by the fact that it was the appellant who received the £2.20 from Henry Godfrey having heard Dang's threats. Ultimately, in his submissions to us this morning, it is the latter way, and the latter way only that Mr Pinfold for the Crown has sought to put the case to us. He has emphasised, at the forefront of his submissions, a matter which had escaped our attention because it is nowhere mentioned in the summing-up itself, although it is not a disputed fact, that it was to the appellant and not to Dang that Henry Godfrey gave his money. He submits, therefore, that when all is said and done about the defects in the judge's summing-up, which he has not sought to explain or redeem, the conviction is safe, because it was the appellant who received the money after hearing Dang utter his threats.
Whether the conviction can be saved as a safe conviction on this ground is something that we will consider after saying something more about the defects of the summing-up.
17.
We will not read extensively from the summing-up, in part because that would take too long but mainly because, as we have said, Mr Pinfold has not sought to argue against the criticisms of the summing-up which Mr Dunn-Shaw has brought to bear. But essentially the defects can be described as follows. First of all, when the judge dealt with the ingredients of robbery, which he did briefly at pages 4 - 5 of the transcript, it can possibly be said that one can find there the various ingredients of robbery, but not in the simple form in which they could, and in our judgment, should have been put to the jury, namely as a citation of the definition of robbery from the statute, under
section 8
of
Theft Act 1968
, namely:
"If he steals and immediately before or at the time of doing so, in order to do so, he uses force of any person or puts or seeks to put any person in fear of being there and then subjected to force."
18.
This is despite the fact that as set out in paragraph 21-101 of Archbold 2009, the case of
R v Dawson and James
64 Cr App R 170 is cited for the proposition that in directing a jury where the charge is robbery, the judge should direct his attention to the words of the statute themselves. If the judge had done so, he would have appreciated that on the facts and issues of this trial, there were two aspects of mens rea upon which he should have concentrated, so as to assist the jury in their task. On those relevant facts and issues, the judge should have emphasised, first of all, that there had to be an intention to steal, that is to say to appropriate someone else's property dishonestly and for these purposes the dishonesty must have consisted in the threat of force, and secondly, the judge should have concentrated on the other aspect of the mens rea found in the words "seeks to put any person in fear", which again would be tied up with the threat of fear. We do not say that the judge wholly omitted to refer to such aspects in his own gloss of the statute, but he did wholly fail to assist the jury with the real issues in the case to the effect that they would have to consider carefully the appellant's state of mind at all relevant times that were before them on the two counts. We consider that when the judge's direction on robbery is taken together with his inadequate dealing with the evidence in the case, that that amounts to an inadequate direction.
19.
The same can be said for his direction as to joint enterprise. The judge, in directing the jury on joint enterprise, wholly failed to make clear to the jury whether they should consider an agreement type of joint enterprise, or an encouragement kind of joint enterprise; or, indeed the sort of hybrid joint enterprise which was Mr Pinfold's final resting place, namely a joint enterprise whereby the appellant became an actual participant in the robbery in the course of it, by receiving the money, after hearing the appellant issue his threats or implied threats.
20.
The judge did not use the expression "joint enterprise", nor did he direct them in the classic terms to be found, for instance, in the basic direction recommended by the Judicial Studies Board. That direction classically uses the phrase about playing different parts but being in it together, as part of a joint plan or agreement.
21.
The judge talked instead about "joint activity", or acting together. He did not direct the jury in terms of an agreement, or in terms of encouragement. He did not direct them by specific reference to the fact that it was the appellant who received the money. He did not refer anywhere in his summing-up to the fact that it was the appellant who received the money. The receipt of the money was spoken of in a way which totally obscured to whom the money had been given. Indeed in context, the inference would be that it had been given to the person who was described at the relevant point of the summing-up as being the aggressive partner, namely Dang.
22.
We consider that that is, given what turns out to being the nuances of this otherwise simple case, an inadequate direction on joint activity. Its inadequacy is again part and parcel of the judge's failure to make clear exactly what the prosecution case was and to assist the jury with the particular facts, dealing with the issue or issues that were before them.
23.
The next matter which amounts to a defect in the summing-up is that the evidence was dealt with inadequately. If one asks the question of how Dang's evidence was dealt with, the answer is that it was referred to in a few lines at 10G - 11A of the transcript, where Dang's evidence is that it was the appellant who had told him to make the brothers hand over the money. It is perfectly true that the judge warned the jury about the difficulties with Dang's evidence, reminding them that in giving evidence he might be doing so for the purposes of assisting himself in matters where he had already accepted his guilt on both counts, and reminding them also of his previous convictions, which for a youngster of 16 were by no means inconsiderable.
24.
The judge also, it is fair to point out, reminded the jury, albeit in a different part of his summing-up, that it had been Dang's evidence that the appellant had told him to make the brothers hand over the money in the brothers' hearing, whereas there had been no such evidence from the brothers. Nevertheless, the fact that Dang's evidence about the circumstances in which he played an aggressive role on the instructions of the appellant had to be contrasted with the brother's evidence, which was also dealt with extremely briefly at 6G to 7C of the summing-up, was no where adequately dealt with. In effect, the nuanced evidence which we have already cited, taking it from Mr Dunn-Shaw's skeleton argument was rolled up into a short summary of the brothers' evidence to the effect that, whereas Dang was getting more aggressive, the appellant was there "and I think the word they used was agreeing with him." That was the evidence of Edward Godfrey but not, we think, as the matter was put before us, the evidence of Henry Godfrey. But since the essential issue for the jury was whether this was begging or robbery, that was an inadequate summing-up of the brothers' evidence. The judge, in order to put the appellant's defence fairly before the jury, ought to have reminded the jury of the fuller evidence which we have recited.
25.
At its highest against the appellant, the evidence of one of the brothers was that the appellant was agreeing with the more aggressive Dang. But that was the evidence at its highest. At its lowest, the evidence of the brother most intimately concerned, Henry Godfrey, described the appellant as begging for cigarette money. In between the highest and the lowest, there was evidence to the effect that, but for the more aggressive Dang, there would have been no trouble or concern.
26.
The judge's failure to sum-up the evidence of the prosecution witnesses was in its way all the more important in a case where the appellant had not given evidence himself. Of course that was his own decision and the judge was required, if he saw fit, and one wholly understands why he did, to give a direction regarding his failure to give evidence accordingly. But the matter was complicated by the interview which the appellant had given. Mr Dunn-Shaw frankly tell us that the way he approached the matter, in his address to the jury, was to rely primarily upon the brothers' own evidence to support his submission that the appellant had been doing nothing more than begging. Therefore, he was not minded to pick his way carefully, as he would have had to have done, between that part of the appellant's interview which was consistent with the defence case at trial, namely that it was a case of begging only, without threat or intimidation on his part, and that part of his interview which was plainly a lie, namely where he sought to exculpate Dang. That was, we understand, a legitimate approach for an advocate to take on the case that he had to deal with.
27.
The judge, however, without discussing the matter with counsel beforehand, proceeded to give a
Lucas
direction in relation to the appellant's interview. Fair enough, in one sense, for there certainly had been lies in the interview. But if the judge was going to give a
Lucas
direction in relation to those lies, it was incumbent on him, we think, to take a little care in the circumstances of the case to discuss with counsel what part of the interview amounted to lies and what part of the interview might have been consistent with the defence case at trial. As it was, all the jury got was a direction which emphasised before them that, although the appellant had told lies at his interview, they were nevertheless to take account of what then followed namely, a
Lucas
direction. The lies in question regarding the exculpation of Dang, were nowhere identified. We consider that that was another error in the judge's summing-up.
28.
When all of these errors are put together, errors in directing the jury on the law, errors in summing-up the evidence before the jury, and really a total failure to bring both law and evidence to bear on the critical issue of the case, and when one adds to that complete opacity as to exactly how the Crown were putting their case of joint enterprise, we consider that this conviction is unsafe.
29.
Mr Pinfold seeks to save it, as we have already indicated, by the simple fact that it was the appellant who received the money. However, in the light of the evidence before the jury and in the light of their acquittal on count 2, we do not consider it possible to conclude that the conviction on count 1 was safe. It is possible that Henry Godfrey gave the money to the appellant, rather than to the aggressive demanding Dang, for the very reason that he either consciously or intuitively considered it safer to hand money to a beggar rather than to a robber. In any event, despite Dang's evidence, seeking to exculpate the appellant from the second count, the judge directed the jury at the start of his summing-up that, although separate consideration had to be given to the two counts, it was "obviously likely that you would reach the same conclusion on each of them." That at first puzzled us, given the basic facts of the case, until Mr Pinfold made his submission that the critical factor in the case was that it was the appellant who had received the money. On that basis, one can understand the judge's feeling that the jury would be likely to come to the same conclusion on both counts, despite the exculpatory evidence of Dang, who was obviously a witness upon whom the jury could not place confident reliance. If by the end of the robbery on count 1 the appellant had become a participant by accepting the money after hearing Dang's threats, then it is difficult to understand why he was not an attempted robber on count 2, if, on the brothers' evidence, but contrary to Dang's evidence, he continued to stand by Dang when Dang started to make still more aggressive demands for further money and the mobile phone. Nevertheless, the jury acquitted on count 2.
30.
So, both because of the serious deficiencies in this summing-up and also because of the whole structure of the case before the jury on the two counts, in the light of the varying evidence before them on those two counts, we cannot accept the Crown's case that this is nevertheless a safe conviction. In effect, the law, evidence and analysis relevant to the appellant's case, which was that he was a mere bystander to robbery, without anything that could amount to joint enterprise, was not explained to the jury. The Crown seek to save the conviction by reference to a fact not mentioned in the summing-up, but if that fact had been available for the jury, it is difficult to understand why they should have acquitted on count 2.
31.
In the circumstances this appeal is allowed. | ```yaml
citation: '[2009] EWCA Crim 1618'
date: '2009-06-19'
judges:
- LORD JUSTICE RIX
- 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:
[2018] EWCA Crim 1531
No:
201800424/A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Friday 2 March 2018
B e f o r e
:
MR JUSTICE SWEENEY
MR JUSTICE WILLIAM DAVIS
R E G I N A
v
MATTHEW PHILLIPS
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 R Moss
appeared on behalf of the
Applicant
J U D G M E N T (Approved)
If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.
1.
MR JUSTICE SWEENEY: This is an appeal against sentence with our leave, following a referral by the Registrar. On 9th January 2018 in the Crown Court at Reading, the appellant pleaded guilty to an offence of dangerous driving and was sentenced by Deputy Circuit McCreath to 11 months' imprisonment and to disqualification for three years and
five-and-a-half months and until an extended driving test is passed.
2.
The facts in short are these. The appellant was born in 1993. He was thus aged 24 at the time of the offence in November 2017 and is now aged 25. He had 11 previous convictions in the period between 2008 and 2014, receiving non-custodial sentences for offences such as possession of drugs, threatening behaviour, assault occasioning actual bodily harm and criminal damage and, in 2014, 26 weeks' imprisonment suspended for two years for possession of a class B drug with intent to supply. There are no driving
convictions.
3.
On Tuesday 31st October 2017, or thereabouts, the appellant was stopped by police driving his black Honda Civic car and advised that he had two bald tyres that needed to be changed. However, the appellant did not change the tyres and some five days later, in the afternoon of Sunday 5th November, was driving the car in Reading when he was seen stationary at traffic lights by a police officer who was driving a marked police vehicle in the opposite direction. The two were known to each other and made eye contact. The officer began to turn his car around in order to stop and speak with the appellant, who clearly appreciating what was going on accelerated away from the traffic light which was still at red against him. The officer activated his siren and flashing light and followed.
4.
The appellant turned into roads that were governed by a 30 mph speed limit. He passed through another set of traffic lights, this time on the wrong side of a traffic island, and disappeared from view. However, a bus driver and then another member of the public indicated to the pursuing officer where the appellant had gone and the officer saw the appellant in the distance ahead of him. By this stage the officer was driving at 60 to 70 mph but was unable to make up any ground. The appellant then came to a junction where he was required to give way, but instead simply drove through it without braking and at very high speed. When the officer got to the same junction he had to give way to other vehicles, which enabled the appellant to get away. The chase, such as it was, had lasted for about one and a half minutes. The appellant was however arrested at his home shortly
afterwards and accepted that he had been driving.
5.
There was a pre-sentence report and a character reference before the judge. The author of the pre-sentence report recorded that the appellant had regretted his actions and was grateful that no one had got hurt. He said that he was not thinking and just wanted to avoid being in trouble with the police. There was no planning involved. He had acted impulsively and did not consider the consequences of his actions. He could now see that his actions could have had a devastating effect on either him or on an innocent bystander. The author of the report recorded that the appellant was working full time as a builder's labourer, earning £300 a week and had no debts, nor did he have any drug or alcohol issues. His previous convictions were considered but the author concluded that there was no pattern of offending, in consequence of which he was assessed as posing a medium risk of re-conviction and a low risk of serious harm. If the court was minded to consider an alternative to a custodial sentence, a community order or a suspended sentence order was recommended. The character reference spoke well of the appellant.
6.
In mitigation, it was suggested that the appellant had pulled up somewhere and that the officer had driven past him. In passing sentence, the judge acknowledged that there were a number of mitigating factors. The appellant had never been convicted before for bad driving, albeit he had lots of convictions for other things. He had not previously been sentenced to immediate imprisonment, although he had been subject to a suspended sentence. He was in a good and stable relationship. He was in work and had settled accommodation. In the result, said the judge, had bore that all in mind, as well as all the other things that he had heard or read to the appellant's credit. The appellant was given a quarter credit for his guilty plea, which the judge recognised acknowledged some measure of remorse. The judge indicated that he would pass sentence on the basis that the appellant was driving his car on a Sunday afternoon in a residential area when he was seen by a police officer. He had been conscious that the officer was interested in him and was concerned that he would be in trouble because his car had bald tyres and he had been formally warned about that already. He had therefore driven off at speed. The exact speed was not clear because there was no proper basis to make a proper comparison between his speed and that of the police car. The judge indicated that he had seen the video footage from the police car, as we interject have we, which drove through the residential area at very high speed but was unable to catch up. The judge said that he was unable to accept that the appellant had pulled up somewhere and the officer had driven past him. That, said the judge, made no sense. Had he pulled up, said the judge, he would have been observed and the officer would have stopped. At all events, the appellant had driven so fast that he got away from the officer, notwithstanding that the officer was driving at speeds up to and beyond 70 mph. The appellant had been driving through a residential area in daylight at undoubtedly very high speeds and on unsafe
tyres. That, said the judge, was hugely dangerous. There were parked cars along some of the streets, it was a sunny afternoon and there was a risk that a child or other individual could have been in the road and serious injury or worse could have followed. It was, said the judge, only by good fortune that no one had been hurt as anyone could have been mown down by the appellant during the course of the episode. It was against that
background that the judge imposed the sentence to which we have already referred.
7.
There are three grounds of appeal, namely that (1) the starting point of 15 months was too high, (2) the sentence should have been suspended, (3) the disqualification period was too
long.
8.
On the appellant's behalf it is stressed in the combination of written and oral submissions that he was aged 24 at the time, living in stable accommodation, that he had been employed as an apprentice bricklayer for three months, that he had no convictions for driving offences, that the offence was committed during the day, there was no evidence of intoxication, there was no evidence of injury or damage, there was no collision, no road rage, no use of a vehicle as a weapon and no adverse road or weather conditions at the time. The court's attention was drawn to a number of authorities, only one of which, as Mr Moss now appearing on the appellant's behalf accepts, is of any particular assistance, namely
Cain
[2014] EWCA Crim 1788
, which involved a police chase and in which the court decided that given the enactment of the offence of causing serious injury by dangerous driving the maximum sentence of two years in relation to the instant offence of dangerous driving was available for very bad cases, even if no serious injury
was caused.
9.
Of more assistance, albeit that ultimately cases of this type turn on their own particular facts, are the cases cited at paragraph 232.13 of the 12th Edition of Banks on Sentence under the heading "police chases". The authorities there cited make clear that driving dangerously in the context of trying to evade the police is a significant aggravating feature. That aggravating feature plainly applied in this case, as did the further aggravating feature that the appellant knew that he had two bald tyres that he had not replaced, despite an official warning of the need to do so. That said, the driving in this case was of short duration and, albeit fortunately, did not result in any accident or injury,
nor did it have any of the other aggravating features that the appellant has underlined.
10.
In the result, and whilst it is conceded that the custodial threshold is crossed, we are persuaded that a notional sentence after trial of 15 months was too long in the particular circumstances of this case. In our view, the notional sentence after trial should have been one in the order of eight to nine months which, less 25 per cent for plea and rounded
down, results in a sentence of six months' imprisonment.
11.
Weighing the factors set out in the Sentencing Council Guideline on Imposition,
we reject the appellant's argument that this is an appropriate case in which to suspend the sentence. In our view appropriate punishment can only be reflected by an immediate term of imprisonment. We are however persuaded that the period of disqualification that was imposed was too long. In the result, we propose to quash the sentence of 11 months' imprisonment and to substitute for it a sentence of six months' imprisonment. We also quash the order for disqualification and substitute for it a period of disqualification of 18 months with a three month extension period, making a total period of disqualification of 21 months. The requirement to pass an extended driving test will of course remain. To the extent that we have indicated, therefore, this appeal is allowed.
WordWave International Ltd trading as DTI
hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 | ```yaml
citation: '[2018] EWCA Crim 1531_2'
date: '2018-03-02'
judges:
- MR JUSTICE SWEENEY
- 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:
[2011] EWCA Crim 819
No:
201005203 C5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 24th March 2011
B e f o r e
:
LORD JUSTICE ELIAS
MR JUSTICE MACKAY
MR JUSTICE HICKINBOTTOM
-------------------
R E G I N A
v
SOLICITORS REEVES & CO
-------------------
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 E Culver
appeared on behalf of the
Appellant
Mr A Heaton-Armstrong
appeared on behalf of the
Crown
-------------------
J U D G M E N T
1.
LORD JUSTICE ELIAS: This is an appeal against the making of a wasted costs order under Regulation 3C of the Costs in Criminal Cases (General) Regulations 1986. The appellant is a firm of solicitors who, at the Crown Court at Snaresbrook before Her Honour Judge Kamill, represented Gabriel Slowik on a single-count indictment alleging fraud. The order was made on the day listed for the trial of the defendant when the Crown, in view of material disclosed by the defence on that day, offered no evidence and the defendant was acquitted on the direction of the judge.
2.
The background stated a little more fully is as follows. The defendant faced trial at Snaresbrook on 18th August 2010. The prosecution alleged that the defendant had gone into a "money shop" with a cheque on 26th May 2009. He walked up to the cashier's desk and presented the cheque in order to cash it. The cheque was made out for £3,000. The cashier called a manager, who became suspicious and called the police. The defendant was subsequently arrested at the scene and interviewed. He answered all questions in interview without a solicitor or interpreter, he being a Polish national. His case was that he did not know if the cheque was valid or not and he had gone into the money shop to check its validity. If it was valid, he was going to cash it. He said that had been sent the cheque by someone in Poland whom he did not know. This person had arranged some security work for him and the cheque was paid ostensibly in part payment for the work he would do and he was to return the excess money to the third party. He had been contacted by e-mail by this third party and he still had the e-mails and was willing to provide copies. The e-mails were not, however, at that stage provided to the police. He was eventually charged with the offence on 3rd November.
3.
A plea and case management hearing was heard on 3rd February, when a new indictment was preferred. This was when the count of dishonest possession of a cheque, rather than dishonestly attempting to cash the cheque, was placed on the indictment. Counsel instructed for the trial attended. She indicated that his defence would be that he had gone to ascertain the validity of the cheque and not until the validity was established did he intend to cash it. She also indicated that in the absence of any statement from the cashier, who apparently was not willing to give evidence, she felt the Crown had an insurmountable problem in proving their case. Counsel was at that stage in possession of the two e-mails and she showed them to prosecuting counsel, but no copies were taken by the Crown on that occasion. At that stage defence counsel apparently intimated that she would send the e-mails to the prosecution. However, on reflection she thought that the quality of the e-mails was such that it would not necessarily be in her client's interest to do that. However, in the defence statement the name of the e-mail contact was provided as was the e-mail address of the sender of the cheque so the police could make enquiries of their own, but it appears that none were made.
4.
On the day of the trial prosecuting counsel indicated that if e-mails were provided then the case would be reviewed. This was the first time that that had specifically been stated. Trial counsel was then provided with copies of the e-mails, though it was made clear that if the case continued then the defendant would still be contending that he had not acted dishonestly. Following consideration of these e-mails the Crown decided to offer no evidence and a not guilty verdict was entered.
5.
At that point an application was made for a wasted costs order against the solicitors. Oral notice of this application was apparently given to defence counsel shortly before going into court. At no stage was notice given to the solicitors that this was an issue was under consideration.
6.
The basis of the Crown's application was that the e-mails could have been provided earlier. Had that occurred then certain costs such as counsel’s fee could have been saved, and witnesses would not have had to attend court. The sum sought was not less than £500.
7.
Defence counsel indicated that the nature of the defence was wholly different to the basis on which the Crown decided to offer no evidence. The defendant’s principal case was going to be to see whether the Crown could adduce sufficient evidence to make a case out against him. His lawyers took the view there was potentially a big hole in the prosecution case. Because there were some concerns about the e-mails, they had not made these available at an earlier stage.
8.
Counsel did stress to the judge before the ruling was made that although attempts had been made to contact the solicitors, they had been unsuccessful. The principal submission of counsel in relation to this application was that neither he nor the solicitors had acted unreasonably or negligently and that there was no warrant for any order being made.
9.
The judge made the order. She concluded that essentially honesty was the real issue in the case from the police interview onwards and she described the failure to serve the e-mails as a “negligent omission”. Costs had been incurred as a result, although she did not identify specifically what they were. She said they had been incurred as a result of the attendance of counsel at trial and the attendance of witnesses. She exercised her discretion as to the amount by hazarding what she called a “guess” of the costs which would have been incurred, which she fixed at £250.
10.
The grounds of appeal fall into two broad categories. First, it is said that the Recorder acted in a procedurally unfair way and in breach of the guidelines which had been laid down. Second, there was, in any event, no proper basis on which the judge could properly conclude that these solicitors had been negligent.
11.
We agree with both these submissions. This order was, in our view, littered with errors. First, the solicitors were given no notice of the case against them. Although counsel had made representations, some of which were applicable to them, he was not in fact their representative. This was a breach of the fundamental rules of natural justice, as well as a breach of the relevant procedural rules.
12.
Mr Heaton-Armstrong, counsel for the Crown, has submitted to us today that there were no adverse consequence flowing from this breach because there was nothing the solicitors could say in addition to that which had been put on their behalf by counsel. With due respect, it is never an answer for somebody who has been deprived of the elementary principles of fairness by being denied the chance to represent themselves or to have representatives act on their behalf that they could not in any event have had anything additional or persuasive to say. Nor do we think counsel is correct to say that there was nothing more that could be said. The solicitors may well have wanted to advance an argument that they were simply acting on counsel's instructions and therefore had not personally been negligent.
13.
The second procedural error is that ever since the case of
Re a Barrister (Wasted Costs Order (No 1 of 1991)
[1993] QB 293
set down guidelines to be adopted in cases of this kind, it has been emphasised that the judge must determine what costs have been wasted as a result of the relevant conduct and then decide whether all or part of those costs should be borne by the representative. In this case there was no proper analysis of the loss caused at all. Counsel for the defence admitted in written submissions that since counsel had attended the plea and case management hearing, the fee for trial would have been incurred in any event. He submitted that this was the case where there might have been no loss. . In any event, the judge then picked the figure of £250, apparently out of nowhere.
14.
We have been provided by the prosecution with figures now which suggest that there were costs incurred, but even were we persuaded that this was the only error in the judgment, it is quite inappropriate, it seems to us, for us to go into that sort of disputed question of fact in an appeal of this nature
15.
The substantive ground of appeal is that the judge was in any event wrong to say that the conduct was negligent. Mr Heaton-Armstrong accepts that that was an inappropriate word and that it would have been better if the judge had said "unreasonable". But focusing on negligence which the judge found, and having regard to the observations of Sir Thomas Bingham, then Master of the Rolls, in
Ridehalgh v Horsefield
[1994] Ch 205, we must ask whether the lawyer fell short of the reasonable conduct expected of ordinary members of the profession. In our judgment, it was a perfectly proper decision for counsel to take in this case that they would not volunteer the e-mails, particularly since the Crown knew of them and were not pressing for them, because they did not believe the prosecution would be able to prove their case. It was an entirely sensible decision in the interests of the client to put the prosecution to proof of its case and to keep the e-mails in reserve in order to advance a defence of honesty should that be necessary. Accordingly, we think that both as a matter of substance and fundamentally as a matter of procedure, that this order should not have been made.
16.
Mr Heaton-Armstrong has accepted that there were three errors in the judgment: not notifying the solicitor, not assessing what loss was caused as a result of the alleged misconduct, and wrongly describing the conduct of the representatives wrongly as negligent, rather than as unreasonable.
17.
These are serious orders to make against professional people and we do not accept, even if there was substance in the conclusion of the judge, that the procedural errors can be glossed over in the way he suggests. Accordingly, the appeal succeeds and we quash the order.
18.
MR HEATON-ARMSTRONG: My Lord, I am afraid I misled you earlier. I asserted that when I applied for the wasted costs order I did not specify who the judge might make it against. I did actually indicate that she might wish to make it against the defence solicitors, that is in the transcript.
19.
LORD JUSTICE ELIAS: I thought that, but then when you told me I assumed I had that wrong. I will correct the transcript.
20.
MR HEATON-ARMSTRONG: Thank you for your trust, but I am afraid it was misplaced.
21.
LORD JUSTICE ELIAS: Thank you for telling me.
22.
MR CULVER: My Lords, in relation to costs, as I understand it there is no possibility of ordering costs from central funds for today's hearing, and as I understand it again -- I am grateful to your clerk for providing this to me -- from
Holden & Co v Crown Prosecution Service (No 2)
1 AC 22 that it would not be paid out of central funds. That is for today's hearing and, as I understand reading it, for the application itself. My Lords, I have the case here. That is my understanding of it. Obviously if costs can be awarded, if your Lordships are minded to do so, then I seek them. I have not put my learned friend on any notice.
23.
LORD JUSTICE ELIAS: I am sorry, we have not looked into this. You are telling me that you do not think we have power to do it and you are essentially asking us to go away and have a look to see if we have power, and if we have to give it to you. I am sorry, we cannot do that. You have to make your application if you think we can properly exercise jurisdiction. If you do not, you should not make it. I am sorry we cannot help you.
24.
MR CULVER: My Lord, I cannot take it further. | ```yaml
citation: '[2011] EWCA Crim 819'
date: '2011-03-24'
judges:
- LORD JUSTICE ELIAS
- MR JUSTICE MACKAY
- 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}
======
| Neutral Citation Number:
[2017] EWCA Crim 817
Case No:
201701533 A4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
Royal Courts of Justice
Strand
London, WC2A 2LL
Wednesday, 24 May 2017
B e f o r e
:
LADY JUSTICE HALLETT VICE PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION)
MR JUSTICE SINGH
THE RECORDER OF LIVERPOOL - HIS HONOUR JUDGE GOLDSTONE QC
(Sitting as a Judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - - - - - -
R E G I N A
v
STEPHEN ANTHONY DOWNING
- - - - - - - - - - - - - - - -
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 J Evans
appeared on behalf of the
Attorney General
Mr R Mochrie (Solicitor Advocate)
appeared on behalf of the
Offender
- - - - - - - - - - - - - - - -
J U D G M E N T (Approved)
1.
THE VICE PRESIDENT
: At a plea and trial preparation hearing on 27 February 2017, the offender, having previously indicated pleas of guilty, pleaded guilty to two counts: count 1, assault occasioning actual bodily harm; count 2, attempting to cause really serious bodily harm with intent. On 13 March 2017 at the Middlesbrough Crown Court, His Honour Judge Armstrong sentenced him to 12 months' imprisonment on count 1 and an extended sentence of 8 years' imprisonment on count 2, comprising a custodial term of 4 years and an extension period of 4 years. Both sentences were ordered to run concurrently. The offender was also made subject to a restraining order and ordered to pay a victim surcharge.
The facts
2.
Amanda Baikie and the offender were in a relationship and had been for about five years. They had two children, both of whom were under three years. Mrs Baikie had a son, Lewis Pratt, from a previous relationship. At the time of the offences he was 16 years of age.
3.
On the evening of Saturday, 28 January 2017, the offender went out for drinks with some family members. Lewis was staying that weekend. At about 4.44 on the Sunday morning the offender telephoned the house. He was drunk and angry. He told Mrs Baikie to make him some food for when he got home. He complained about Lewis staying over. Mrs Baikie knew that the offender could be violent and unpredictable when in drink, and from the tone of his voice she feared for her son's safety. She went to Lewis's bedroom to tell him the offender was on his way home and that he was angry. She begged her son to barricade himself in the room using the wardrobe. Lewis was also aware of the offender's capacity for drunken violence. He got dressed, but got back into bed and did not barricade his door.
4.
The offender arrived home about 30 minutes later. He was very abusive to Mrs Baikie; he called her "lazy" and "a fat slag". He grabbed a 4-inch knife from the kitchen and held it to her left arm. She begged him not to hurt her. As she tried to move away, the blade cut her skin. Still holding the knife, the offender asked where Lewis was. Mrs Baikie panicked and ran out of the house to call the police, terrified of what the offender might do to her and Lewis. She turned as she ran and saw the offender advancing up the stairs with the knife in his hand. The offender walked into Lewis's room and jumped onto the bed with the knife in his hand. He grabbed Lewis by the throat and said, "Who the fuck do you think you are? You're not a hard boy." Lewis struggled to breathe. Lewis could see the knife in the offender's hand. The offender raised the knife and lunged at Lewis's face. Lewis raised his hand to protect himself and the blade cut the top of his thumb. The wound poured with blood and Lewis shouted out in pain. The offender released his hold on Lewis's throat but then lunged at Lewis's face several more times with the knife. Each time Lewis tried to fend off the blows with his hands. He was unable to block one of the blows and the blade of the knife caught the bottom of his left eye, causing another cut that also bled.
5.
By now, Lewis was shouting and screaming for the offender to leave him alone. The offender grabbed Lewis by the throat once more. Lewis was terrified. He made a grab
for the knife and the two of them tussled for it. Lewis believed the offender injured himself as they struggled for control. The offender suddenly released his grip, climbed off the bed and calmly left the room. Lewis walked down the stairs behind the offender and asked if he could wash the blood off his face. The offender told him, "I wouldn't hurt you, mate."
6.
The offender walked into the kitchen clutching his side from where he was bleeding. Lewis came into the kitchen and saw the offender in pain. He asked the offender if he wanted an ambulance, but the offender declined. By this stage the police had arrived and Lewis ran out to meet them. The offender saw him running towards them with blood rushing down his face and on his hands. Lewis shouted, "He's got a knife. He stabbed me. Be careful, he's dangerous."
7.
Nevertheless, PC Doherty stepped inside the house and shouted to alert the offender to the police presence. The offender called back from the kitchen, "Come on then, gas me and see if I give a fuck." A number of officers armed with Tasers then entered the house. They found the offender in the kitchen. He was leaning against the counter, smoking a cigarette. A bloodstained knife was close to him on the work surface. The offender said, "Go on then, Taser me. See if I fucking care." The officers approached the offender and handcuffed him. It was obvious to them that he was heavily intoxicated. They escorted him outside and into a police van. When he was arrested on suspicion of wounding with intent, he said, "You're having a fucking laugh, aren't you?"
8.
Back at the house, PC Doherty spoke with Lewis. The officer could see that Lewis had a stab wound under his left eye and a deep laceration to the thumb on his left hand. He also had minor cuts to his right hand. The offender answered "no comment" to all questions in interview.
Offender’s Background
9.
The offender has 54 previous convictions from 20 court appearances. His relevant previous convictions are as follows:
10.
(i). On 15 January 2000 he committed an offence of assault occasioning actual bodily harm, for which he received a probation order of 12 months. During a street fight, he punched the victim around the head and bit him.
11.
(ii) On 7 March 2004, he committed an offence of wounding with intent, for which he was sentenced to 3 years' imprisonment. The offender set his dog on the victim and the dog bit the victim several times.
12.
(iii) On 16 October 2005, he was convicted of an offence of unlawful wounding and possession of an offensive weapon, for which he received an extended sentence of 5 years' imprisonment, comprised of 3 years' custody and an extension period of 2 years. The offences were committed in breach of his licence from the earlier wounding offence. During a fight outside a pub when the offender was in drink, he stabbed the victim seven times.
13.
In a pre-sentence report dated 9 March 2017, a probation officer, recorded the offender’s admission that he drank to excess and took drugs. He said that his recollection of events was not good. He remembered an argument with his partner about drinking and said this escalated into violence. He maintained he had struck Mrs Baikie with a potato peeler and not a knife, and he denied assaulting Lewis in the bedroom. He said he may have grabbed him by the throat when he came downstairs. He could not remember stabbing Lewis, but accepted the account put forward by Mrs Baikie and her son. He denied any previous violence to Mrs Baikie as had been described by Lewis, and described himself as being like a ‘stepfather’ to Lewis.
14.
The author of the report expressed great concern about the link between the offender’s violence and his alcohol consumption. His compliance with previous sentences had been poor and he presented a medium risk of re-offending and a high risk of harm.
15.
In addition, we have before us a report on his response to custody since 13 March 2017. Unfortunately, there have been a number of instances of concern to the authorities.
16.
Impact of offences
17.
Lewis stated that the offence had left him in shock and struggling to understand what had happened and why. When he wrote his statement he was still in severe pain from the injuries to his hand and throat and he was fearful of what the offender would do to him and his mother. In her witness statement, Mrs Baikie stated that the whole episode had made her afraid of the offender and left her feeling ashamed that she had run away to get help and left her son alone with him.
Sentencing hearing
18.
Prosecuting counsel referred the judge to the Sentencing Council's Definitive Guideline: Assaults. In her submission, with which Mr Mochrie for the offender agreed, count 2 fell into category 2 because there was lesser harm but higher culpability, the use of the knife. This provided a starting point of 6 years' imprisonment with a range of 5 to 9 years. She submitted that count 1 was a category 2 offence because of the use of the knife, but suggested that the starting point for a category 2 offence was 18 months' imprisonment and a range of 1 to 3 years. In fact, that is the starting point and the ranges for a category 1 offence. She referred the judge to the aggravating feature of the offender's previous convictions and tentatively raised the suggestion there might be two others, namely the particular vulnerability of Lewis and the age difference between the boy and the offender.
19.
The judge agreed with the categorisation of both offences. He took the starting point of 6 years and factored in solely the previous convictions as an aggravating feature. He then reduced the sentence because this was an attempt, thereby returning to the starting point of 6 years. He found the mitigation carried little weight. The judge treated the plea and trial preparation hearing as the first reasonable opportunity for entering pleas of guilty and gave the offender full credit for the pleas. He concluded an overall sentence of 4 years was commensurate with the seriousness of both offences. The judge was also persuaded the offender was dangerous: hence the extended sentence.
Reference
20.
Her Majesty's Attorney General took no issue with the judge's categorisation of the offences, the finding of dangerousness and the length of the extension period. Represented by Mr Evans, he sought leave to refer the sentence imposed on count 2 as unduly lenient in the light of the seriousness of the overall offending, and in particular the following aggravating features:
(i)
21. there were two victims, both of whom were threatened and injured with a knife;
(ii)
22. the offences occurred in the home of one of the victims and in the temporary bedroom of the other;
(iii)
23.
the offender was intoxicated through alcohol and drugs;
(iv)
24.
the offender's young children were present at the address;
(v)
25. the offender has a violent history and has previously committed offences in breach of licence;
(vi)
26. on count 2 the offender intended to cause more serious harm than he actually caused. Only Lewis's efforts to defend himself prevented him from sustaining more injuries.
27.
Mr Mochrie conceded the aggravating features as set out. However, he did not accept that the judge was wrong to reduce the sentence to reflect the fact that the charge was an attempt rather than causing grievous bodily harm.
28.
Both he and Mr Evans accepted that there was one mitigating factor, namely that the offender had the benefit of his pleas of guilty.
Conclusion
29.
The question for this court is whether the custodial element of the sentence adequately reflects the seriousness of the overall offending. In our judgment, it does not. We proceed on the basis the categorisation of the offences was correct and we shall factor into the sentence on count 2 the assault on Ms Baikie (count 1), as the judge purported to do. However, the assault upon Ms Baikie was with a knife and in a domestic setting; proper recognition should have been made of those facts. We have no doubt the cumulative effect of the offending against Ms Baikie (count 1) and the aggravating features (on both counts) justified a significant upward adjustment from the starting point of 6 years to the top of the range and beyond.
30.
We note that the only aggravating feature to which the judge referred in his sentencing remarks was the offender's previous record. There were many others.
31.
Furthermore, with respect to the sentencing judge, we simply do not understand his decision to make a downward adjustment to reflect the fact that count 2 was charged as
an attempt to cause grievous bodily harm with intent. This could and should have been charged as wounding with intent to cause grievous bodily harm. Had it been the categorisation and starting point would have been the same. In any event, had the offender succeeded in his attempt to cause really serious harm, on these facts, the offence could have become a category 1 offence.
32.
This offender, knowing his predisposition to violence when drunk, went home in an angry and violent mood. He grabbed a knife; he attacked his then partner with it and then deliberately went upstairs to attack a 16-year-old boy, whose only offence seems to have been to spend the weekend with his mother. The offender repeatedly slashed at the boy's face intending to cause him really serious harm. He could so easily have done so. As it was he caused significant injuries to his hand and eye. This was domestic violence of a serious kind. The only mitigation was his guilty plea.
33.
The shortest sentence that could have been imposed on these facts was one of 10 ½ years, from which we shall deduct the full one-third credit for his pleas. Accordingly, we find that the sentence was unduly lenient. We give leave to refer. The sentence on count 2 will be quashed. A sentence of 7 years will be imposed with an extension period of 4 years.
34.
In conclusion, we observe that it is essential, if judges are to receive all the help they need, that charges are sensibly drawn and properly reflect the offending. Charges of wounding with intent (count 2) and wounding (count 1) would have made the judge’s task considerably more straightforward. Furthermore, it was incumbent upon prosecuting counsel to list the aggravating features in full. | ```yaml
citation: '[2017] EWCA Crim 817'
date: '2017-05-24'
judges:
- LADY JUSTICE HALLETT VICE PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION)
- MR JUSTICE SINGH
``` |
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:
201505085 C3
Neutral Citation Number:
[2016] EWCA Crim 2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SOUTHWARK
HIS HONOUR JUDGE PEGDEN QC
T20140065
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
15/01/2016
Before :
THE PRESIDENT OF THE QUEEN’S BENCH DIVISION
(SIR BRIAN LEVESON)
MR JUSTICE HADDON-CAVE
and
THE RECORDER OF MIDDLESBROUGH
(HIS HONOUR JUDGE BOURNE-ARTON Q.C.)
sitting as a Judge of the Court of Appeal (Criminal Division)
- - - - - - - - - - - - - - - - - - - - -
Between :
THE QUEEN
Appellant
- and -
AIL, GH and RH
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Simon Farrell Q.C., Rachel Scott
and
Will Hays
for the Appellant
Alexander Cameron Q.C.
and
Nichola Higgins
for the Respondent AIL
William Clegg Q.C.
and
Gideon Cammerman
for the Respondent GH
Jonathan Barnard
for the Respondent RH
Hearing date : 8 December 2015
- - - - - - - - - - - - - - - - - - - - -
Judgment
Sir Brian Leveson P :
1.
The short, but critically important, question raised by this appeal is whether, prior to 2001, it was a criminal offence in the UK to corrupt the agent of a foreign principal. On 10 November 2015, in the Crown Court at Southwark, during the course of a preparatory hearing conducted under s. 7 of the Criminal Justice Act 1987 (“the 1987 Act”), His Honour Judge Pegden Q.C. was invited to rule upon that issue identified in the following terms:
Prior to the coming into force of the Anti-Terrorism, Crime and Security Act 2001 (“the 2001 Act”), did the Prevention of Corruption Act 1906 (“the 1906 Act”) make it an offence to corrupt an agent of a foreign principal or a foreign body even if the
actus reus
of the offence took place within this jurisdiction?
2.
Judge Pegden answered the question in the negative. He held that, prior to the coming into force of the 2001 Act on 14 February 2002, it was not an offence under the 1906 Act to corrupt an agent of a foreign principal or foreign public body, even in a case where the
actus reus
of the alleged offence took place within the territorial jurisdiction of England and Wales.
3.
With the leave of the judge, the prosecution now appeal that decision pursuant to s. 9(11) of the 1987 Act; s. 9(14) of the 1987 Act provides that this court may confirm, reverse or vary the ruling which is the subject of the appeal. The provisions of s.11 of the 1987 Act also apply so that reporting of these proceedings is restricted: to that end, we have summarised the alleged facts somewhat obliquely and anonymised the names of the respondents and the organisations said to have been involved.
The Allegation
4.
AIL is a company incorporated in England and Wales which is part of a multinational conglomerate (“the Group”) operating in the power generation and transport sectors. In November 2000, GH was appointed chairman and chief executive of AIL; RH was managing director of an Indian subsidiary within the Group.
5.
In short, it is alleged by the Serious Fraud Office (“SFO”) responsible for the conduct of this prosecution that, between June 2000 and November 2006, AIL paid bribes in order to secure various transport contracts for companies or divisions within the Group. The bribes were all paid from an English bank account to officials or other agents of three foreign organisations in India, Poland and Tunisia. It is said that the bribes were disguised as legitimate payments to ‘consultants’ for apparently genuine services. In aid of this subterfuge, AIL entered into so-called ‘consultancy agreements’ for the benefit of Group companies hoping to win the business. In fact, no genuine consultancy services were rendered. The ‘consultancy agreements’ were merely a front to disguise the bribery.
6.
The SFO allege that GH was involved in the corrupt payments in both India and Poland and RH was involved in negotiating and arranging two false ‘consultancy agreements’ in India. As a result, the respondents are charged with both substantive offences and offences under s.1 of the 1906 Act and with conspiracies. These facts which form the basis of these charges have not been tested in any way and nothing in this judgment is to be construed as suggesting any conclusion as to their accuracy.
7.
At the preliminary hearing, the respondents submitted that, prior to 14
February 2002, no offence could be committed under the 1906 Act in circumstances where the bribes targeted the agent of a foreign principal, even if all the relevant parties were present in England and all the conduct took place in this jurisdiction. The respondents argued that this conclusion followed from the true construction of the legislation. The significance of the proposition (if accurate) was clear: much of the alleged conduct pre-dates 14
February 2002, which was
the date on which the 2001 Act came into force.
8.
The point of law is also of general significance because of its implications for other bribery and corruption prosecutions which it is understood from Counsel are pending. It was in those circumstances that the ruling in the preparatory hearing came about.
The Legislative History
9.
The question of law involves analysis of three English statutes concerned with bribery and corruption: the Public Bodies Corrupt Practices Act 1889 (“the 1889 Act”), the Prevention of Corruption Act 1906 (“the 1906 Act”) and the Prevention of Corruption Act 1916 (“the 1916 Act”). This legislation arose against a background of 19
th
century anti-bribery laws which addressed corruption in the public sphere only. The common law offence of bribery has always been limited to the public sphere.
10.
The history of this legislation has been the subject of a scholarly review by Lord Thomas CJ in
R v. J and others
[2013] EWCA Crim 2287
(at [9] to [21]). However, for the sake of completeness, it is necessary to set out many aspects of the legislation and its history in detail below.
11.
We start with the 1889 Act which was solely concerned with bribery and corruption in public bodies. The short title of the 1889 Act is: “An Act to amend the Law relating to the Prevention of Corruption”; the long title is: “An Act for the more effectual Prevention and Punishment of Bribery and Corruption of and by Members, Officers, or Servants of Corporations, Councils, Boards, Commissions, or other Public Bodies”.
12.
By s. 1 of the 1889 Act a new statutory offence of “corruption” was created. It provides as follows:
“(1)
Every person who shall by himself or by or in conjunction with any other person, corruptly solicit or receive, or agree to receive, for himself, or for any other person, any gift, loan, fee, reward, or advantage whatever as an inducement to, or reward for, or otherwise on account of any member, officer, or servant of a public body as in this Act defined, doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which the said public body is concerned, shall be guilty of a misdemeanour.
(2)
Every person who shall by himself or by or in conjunction with any other person corruptly give, promise, or offer any gift, loan, fee, reward, or advantage whatsoever to any person, whether for the benefit of that person or of
another
person, as an inducement to or reward for or otherwise on account of any member, officer, or servant of any public body as in this Act defined, doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which such public body as aforesaid is concerned, shall be guilty of a misdemeanour.”
13.
Section 3(1) of the 1889 Act provides
inter alia
the following saving:
“
Where any offence under this Act is also punishable under any other enactment, or at
common
law, such offence may be prosecuted and punished either under that Act, or under the other enactment, or at common law, but so that no person shall be punished twice for the same offence. …”
14.
The interpretation provisions are contained within s. 7 of the 1889 Act in these terms:
“In this Act-
The
expression
“public body” means any council of a county or county of a city or town, any council of a municipal borough, also any board, commissioners, select vestry, or other body which has power to act under and for the purposes of any Act relating to local government, or the public health, or to poor law or otherwise to administer money raised by rates in pursuance of any public general Act, but does not include any public body as above defined existing elsewhere than in the United Kingdom:
The expression “public office” means any office or employment of a person as a member, officer, or servant of such public body:
The expression “person” includes a body of persons, corporate or unincorporate:
The expression “advantage” includes any office or dignity, and any forbearance to demand any money or money's worth or valuable thing, and includes any aid, vote, consent, or influence, or pretended aid, vote, consent, or influence, and also includes any promise or procurement of or agreement or endeavour to procure, or the holding out of any expectation of any gift, loan, fee, reward, or advantage, as before defined. …”
15.
Thus, the 1889 Act was concerned with gifts to any “member, officer, or servant” of a “public body”. “Public body” was narrowly defined in s.7 and expressly
excluded
“any public body… existing elsewhere than in the United Kingdom”. Accordingly, in 1889 it was not an offence to corrupt foreign public bodies.
16.
There was growing public concern that bribery and corruption in the private sector was rife and had to be addressed. The genesis of the 1906 Act is usefully charted by Albert Crew in his monograph entitled
The Law Relating to Secret Commissions and Bribes (Christmas Boxes, Gratuities, Tips, Etc).
As he explained (at p. 57):
“With the growth and development of the nineteenth century there came an army of commission agents. As competition grew keener, business was sought for by devious and crooked ways. Bribes under many guises were given for the purpose of facilitating trade when other and fairer methods were exhaustive or ineffective. In course of time, bribes became so usual an accompaniment of certain profession and trades as almost to partake of a custom.
Cosi fan tutti
(so do they all) was a not uncommon defence.”
17.
Albert Crew cited correspondence in
The Times
during this period which referred to the ‘canker’ of bribery affecting solicitors, banker, auctioneers, architects, insurance agents and accountants and the shipbroking trade being ‘honeycombed’ with the same evil (see
ibid,
p. 59).
18.
The public concern created a sea-change in opinion and led to the appointment of a committee of the London Chambers of Commerce to consider the question of secret profits. In its Report published in 1899, the Special Committee of Secret Commissions concluded that the practice of secret commissions “was prevalent in almost all trades and professions to a great extent” and recommended legislation. The Committee observed:
“The mass of corruption which the evidence before the Committee shows to exist may appear to some persons so great and complex as to render it hopeless to struggle towards purity. Your Committee do not take this view of the matter. They believe that the discussion of the subject and the publicity of some cases before the Law Courts have already done some good; and they recall the undoubted fact that corruption formerly existed in this country in regions where it is entirely unknown; and that there are cases in past times in which bribery threw a stain upon the occupants of the Bench; that at one time a large number of members of the House of Commons were in the pay of the Crown; and that commissions and other secret forms of bribery abounded in Government departments. Your Committee accept the improvement which has taken place in these directions in the last fifty years as a fact of full encouragement for the commercial community of Great Britain.”
19.
Following this report, a
new Act was promoted by Lord Russell and Sir Edward Fry in 1899 which was aimed at “trade” generally so as “to stamp out fraud in commercial dealings and to enforce honesty in business life”.
Lord Russell introduced a bill in the House of Lords which was read in Parliament but never entered into law.
20.
A government bill on the same topic was subsequently introduced by Lord Halsbury in 1901, eventually passing into law and coming into force on 1
January 1907. This was the 1906 Act. In the course of the Parliamentary debates, there appears to have been no discussion as to the position of the corruption in respect of foreign principals and agents. Equally, there was no suggestion that the draft legislation was aimed solely at domestic or
intra-
UK trade and business dealings. Without deciding whether it would be appropriate to consider the material, we were informed by counsel that no assistance either way on this question is to be found in the
travaux preparatoires.
21.
Turning to the 1906 Act, its short title is: “An Act for the better Prevention of Corruption”. Albert Crew states that the objects of the 1906 Act were concisely summarised in the memorandum to Lord Russell’s Secrets Commission Bill:
“The object of the Bill may be shortly stated as an effort to check, by making them criminal, a large number of inequitable and illegal secret payments, all of which are dishonest, and tend to stifle confidence between man and man and to discourage honest trade and enterprise.”
22.
By s. 1(1) of the 1906 Act it is provided:
“If any agent corruptly accepts or obtains, or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gift or consideration as an inducement or reward for doing or forbearing to do, or for having after the passing of this Act, done or forborne to do, any act in
relation
to his principal's affairs or business, or for showing or forbearing to show favour or disfavour, to any ;person in relation to his principal's affairs or business ; or
If any person corruptly gives or agrees to give or offers any gift or consideration to any agent as an inducement or reward for doing or forbearing to do, or for having after the passing of this Act done or forborne to do, any act in relation to his principal's affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal's affairs or business; or
If any person knowingly gives to any agent, or if any agent knowingly uses with intent to deceive his principal, any receipt, account, or other document in respect of which the principal is interested, and which contains any statement which is false or erroneous or defective in any material particular, and which to his knowledge is intended to mislead the principal;
he shall be guilty of a misdemeanour, and shall be liable on conviction on indictment to imprisonment, with or without hard labour, for a term not exceeding two years, or to a fine not exceeding five hundred pounds, or to both such imprisonment and such fine, or on summary conviction to imprisonment, with or without hard labour, for a term not exceeding four months, or to a fine not exceeding fifty pounds, or to both such imprisonment and such fine.”
23.
Section 1 of the 1906 Act goes on:
“(2) For the purposes of this Act… the expression “agent” includes any person
employed
by or acting for another; and the expression “principal” includes an employer.
(3) A person serving under the Crown or under any corporation or any municipal, borough, county, or district council, or any board of guardians, is an agent within the meaning of this Act.”
24.
Passing on to the 1916 Act, it was enacted to deal with scandals in the War Office that had come to light. The short title is: “An Act to amend the Law relating to the Prevention of Corruption” and s. 1 increased the maximum penalty on conviction of offences under the 1906 Act and 1889 Act to 7 years.
25.
The 1916 Act also introduced a “presumption” of corruption, including in cases involving a “public body”. Thus, s. 2 provides:
“Where in any proceedings against a person for an offence under the
Prevention of Corruption Act 1906
, or the
Public Bodies Corrupt Practices Act 1889
, it is proved that any money, gift, or other consideration has been paid or given to or received by a person in the employment of His Majesty or any Government Department or a public body by or from a person, or agent of a person, holding or seeking to obtain a contract from His Majesty or any Government Department or public body
the money, gift, or consideration shall be deemed to have been paid or given and received corruptly as such inducement or reward as is mentioned in such Act unless the contrary is proved.”
26.
By s. 3, summary proceedings under the 1906 Act could be instituted within 6 months of discovery of the offence and s. 4 provides
inter alia
as follows:
“(2)
In this Act and in the
Public Bodies Corrupt Practices Act 1889
, the expression
“public body”
includes, in addition to the bodies mentioned in the last-mentioned Act, local and public authorities of all descriptions.
(3)
A person serving under any such public body is an agent within the meaning of the
Prevention of Corruption Act 1906
, and the expressions
“agent”
and
“consideration”
in this Act have the same meaning as in the
Prevention of Corruption Act 1906
, as amended by this Act.”
27.
There matters rested until the latter part of the 20
th
Century and, in particular, until 17 December 1997, when the United Kingdom signed the OECD
Convention on Combating Bribery of Foreign Public Officials in International Business Transactions
(“the 1997 Convention”). Article 1 of the 1997 Convention required signatories to take steps to ensure that the “bribery of foreign public officials” was a criminal offence. Article 4 concerned the issue of “jurisdiction”:
“1. Each Party shall take such measures as may be necessary to establish its jurisdiction over the bribery of a foreign public official when the offence is committed in whole or in part in its territory.
2.
Each Party which has jurisdiction to prosecute its nationals for offences committed abroad shall take such measures as may be necessary to establish its jurisdiction to do so in respect of the bribery of a foreign public official, according to the same principles.
3.
When more than one Party has jurisdiction over an alleged offence described in this Convention, the Parties involved shall, at the request of one of them, consult with a view to determining the most appropriate jurisdiction for prosecution.
4.
Each Party shall review whether its current basis for jurisdiction is effective in the fight against the bribery of foreign public officials and, if it is not, shall take remedial steps.”
28.
Thus, the 1997 Convention required signatories, including the United Kingdom, to ensure that the bribery of a foreign public official was an offence in two situations. These were, first, in a case where the conduct constituting the offence of bribery of a foreign public official occurred in whole or in part in the United Kingdom; and, secondly, in a case where the bribery of a foreign public official occurred wholly outside the United Kingdom (where that the United Kingdom had jurisdiction to prosecute its nationals for offences committed abroad).
29.
Following the 1997 Convention, on 3 March 1998, the Law Commission published its Report entitled
Legislating the Criminal Code: Corruption
(Report Law Com No. 2480). The Law Commission reviewed UK law on corruption and analysed the 1889 Act, the 1906 Act and the 1916 Act in detail. The Law Commission stated “it is not entirely clear whether a public body existing outside the United Kingdom was a ‘public body’ within the meaning of the Acts” and expressed the provisional view that the bribery of an employee of a foreign public body would not be an offence under the 1889 Act and the presumption under s.2 of the 1916 Act would not apply (paragraph 3.17). However, it went on to state that if an official was “employed by or acting for” a public body, “he or she would be an agent within the original definition in section 1(2) of the 1906 Act, and the question of whether the body qualified as a public body would for this purposes be immaterial” (paragraph 3.18).
30.
Nevertheless, the Law Commission concluded that the present law on corruption was “in an unsatisfactory state” and it recommended that the “common law offence of bribery and the statutory offences of corruption should be replaced by a modern statute” (paragraph 2.33). It was for this reason that Bribery Act 2010 was eventually promulgated and then brought into force.
31.
Prior to the new legislation, in 1999, the OECD published a
Review of Implementation of the Convention and 1997 Recommendation
(“the 1999 Review”)
.
The UK Government argued that its existing legislation adequately complied with the 1997 Convention. However, the 1999 Review expressed “serious concerns” as to the applicability of s.1 of the 1906 Act to the bribery of foreign public officials and urged the UK Government to enact a statute specifically prohibiting the bribery of foreign officials and raised other concerns (pp. 24-25).
32.
This led, in June 2000, to the publication by the government of a paper entitled
Raising Standards and Upholding Integrity: The Prevention of Corruption
in which it expressed the intention to bring forward legislation along the lines proposed by the Law Commission to the effect that “public official” is not confined to the public of the United Kingdom (para. 2.11). The result was ss.106-110 of the 2001 Act of which s.108 is material.
33.
Section 108 of the 2001 Act is headed “Bribery and corruption: foreign officers etc.” and provides as follows:
(1)
For the
purposes
of any common law offence of bribery it is immaterial if the functions of the person who receives or is offered a reward have no connection with the United Kingdom and are carried out in a country or territory outside the United Kingdom.
(2)
In section 1 of the Prevention of Corruption Act 1906 (c. 34) (corrupt transactions with agents) insert this subsection after subsection (3)—
‘(4)
For the purposes of this Act it is immaterial if—
(a)
the principal’s affairs or business have no connection with the United Kingdom and are conducted in a country or
territory
outside the United Kingdom;
(b)
the agent’s functions have no connection with the United Kingdom and are carried out in a country or territory outside the United Kingdom.’
(3)
In section 7 of the Public Bodies Corrupt Practices Act 1889 (c. 69) (interpretation relating to corruption in office) in the definition of “public body” for “but does not include any public body as above defined existing
elsewhere
than in the United Kingdom” substitute” and includes any body which exists in a country or territory outside the United Kingdom and is equivalent to any body described above ”.
(4)
In section 4(2) of the Prevention of Corruption Act 1916 (c. 64) (in the 1889 and
1916
Acts public body includes local and public authorities of all descriptions) after “descriptions” insert “(including authorities existing in a country or territory outside the United Kingdom) ”.
34.
In 2003, the OECD published a further review entitled
Review of Implementation of the Convention and 1997 Recommendation Phase 1 Bis Report
(“the 2003 Review”). The 2003 Review observed that s. 108 of the 2001 Act clarified that the existing offences of bribery extend to persons outside the United Kingdom (p.7). It also noted the commitment of the UK Government to pursue a wider reform of corruption law and recommended that it proceed with this reform.
35.
That brings us to the Bribery Act 2010 (“the 2010 Act”) which represented the modernisation of the UK bribery law presaged by the 1998 Law Commission Report. The 2010 Act created a generic offence of bribery and repealed the 1889 Act, the 1906 Act, the 1916 Act and ss.108-110 of the 2001 Act. The 2010 Act came into force on 1
July 2011. There is no doubt that this legislation covers the bribery or corruption of an agent of a foreign principal.
The Judge’s Ruling
36.
In his clear and careful written ruling dated 10 November 2015, His Honour Judge Pegden QC held that the 1906 Act in its original form did not make it an offence to corrupt an agent of a foreign principal or foreign public body. Essentially, he agreed with the submissions advanced by counsel for the respondents.
37.
The judge’s reasoning can be summarised as follows (using his numbering):
a)
The 1889 to 1916 Acts had to be read as a ‘suite’ of Acts.
b)
The 1889 Act only concerned corruption of UK public bodies (see s.7).
c)
The 1906 Act was concerned with anti-corruption legislation in the private sector and defined “agent” as including “any person acting for another”.
d)
The 1906 Act made no express provision as to where the agents or principals existed (in contrast to the 1889 Act).
e)
Section 4(3) of the 1916 Act defined “agent” in the 1906 Act as including someone serving under “public body” and “agent” as to have the same meaning in all three Acts.
f)
If Parliament had intended the bribery of an agent of a foreign principal to be a crime, it would have said so clearly; and no-one should be penalised except under clear law (
R v. Z
[2005] UKHL 35
,
per
Lord Bingham at para.16).
g)
The need to pass the 2001 legislation was indicative that a change of the law was required.
h)
There was little assistance to be gleaned from the government’s representations to the OECD or the Law Commission’s view or the authorities, although in
R v. J and others
[2013] EWCA Crim 2287
Lord Thomas CJ seemed to be of the view that the 2001 Act extended the 1906 Act to agents and principals overseas.
HHJ Pegden QC concluded that it was not until 2001 and, in particular, the specific amendments made by the 2001 Act to the 1906 Act, that it became an offence to corrupt an agent of a foreign principal or foreign public body.
38.
The respondents accepted that the judge was in error in two respects in his reasons. First, as regards (c) above, the 1906 Act was concerned with anti-corruption legislation in the
public
and private sectors. Second, as regards (e) above, the word “agent” did not appear in all three Acts but only in the 1906 and 1916 Acts. The Respondents submitted, however, that in all other respects the Judge’s reasoning was correct and his ruling should be upheld. The SFO submit that the ruling was wrong in law.
Analysis
39.
The issue in this appeal is not one about territorial jurisdiction. The respondents accept for present purposes that sufficient conduct took place within the jurisdiction for the matter to be tried within England and Wales. This would accord with the common law test set out in
R v Smith (Wallace Duncan) No 4
[2004] QB 1418
).
40.
The issue before us is one of pure statutory construction, in respect of which the usual principles apply. Absent an indication to the contrary, the words of a statute are to be given their plain, ordinary and natural meaning. We bear well in mind the need for legal certainty in criminal law (
per
Lord Bingham in
R v. Z
[2005] UKHL 35
, at [16]). The test is one of “sufficient rather than absolute certainty” (see
R v Misra
[2005] 1 Cr App R 27
at [32-37];
Kokkinakis v Greece
(1994) 17 EHRR 397
at [44-46]).
41.
English criminal law defines offences, whether common law or statutory, simply by reference to the elements of the offence. Leaving aside threshold questions of jurisdiction, there is no general principle which excludes crimes committed by or against foreign persons. Absent clear words, the nationality, residence or location of the victim or perpetrator is irrelevant to the ingredients of the offence.
42.
We turn first to the 1906 Act which created an entirely new statutory offence of corruption.
The offence was framed in terms of “principal” and “agent” (
per
Lord Thomas CJ in
R v. J and others
[2013] EWCA Crim 2287
at [27]). Its matrix was very different from the 1889 Act.
The 1906 Act does not use the term “public body” and that expression appears nowhere in the 1906 Act; furthermore, the term “agent” does not appear anywhere in the 1889 Act.
43.
The key element of the 1906 Act offence is corrupt conduct of an “agent” in connection with the affairs of his “principal”. Unlike the 1889 Act, the 1906 Act covered corruption in public and private sectors. Section 1(1) created three “agent” offences: the first concerning the "agent” himself; the second concerning the person engaged in a corrupt transaction with the “agent”; and the third concerning any deception of the “principal” by his “agent”.
44.
Against that background, the starting point is to consider the plain, ordinary, natural meaning of the words “agent” and “principal” in the 1906 Act. In our judgment, the meaning of these words is clear: absent other indications, the words include both foreign and domestic persons or organisations.
45.
In that regard, the expressions “agent” and “principal” are well understood and have long been in common usage. In common parlance, they denote a relationship in which the former acts for and/or represents the latter in business or other contexts. At common law, an agent has the power to change the legal relations of his principal. The expressions “agent” and “principal” are neutral in terms of nationality, location or territory.
46.
The development of late 19
th
and early 20
th
century English mercantile law tracked the expansion of global trade. The jurisprudence of the law of agency at this time was redolent with examples of domestic and foreign “agents” and “principals” (see
e.g.
the case tried by Sir George Jessel MR in 1877 involving a Bombay shipping agent referred to by Albert Crew,
supra
). Accordingly, early 20
th
century law-makers would have had no difficulty with the concept of “agents” and “principals” embracing both foreign and domestic persons.
47.
Consider further the definitions of words “agent” and “principal” in the 1906 Act, which are wide and untrammelled. Section 1(2) defines “agent” widely and non-exhaustively (
viz.
“the expression “agent”
includes
any person employed or acting for another…”). Section 1(3) includes a Crown servant in the category of “agent” (“A person serving under the Crown…
is
an agent…”): in that way, the complication of the true nature of office holders is avoided.
Section 1(2) defines “principal” equally widely and non-exhaustively (
viz.
“the expression “principal”
includes
an employer”).
48.
In our view, ss. 1(2) and (3) were designed to ensure that the statutory definition of the
expressions “agent” and “principal” are understood as bearing their (broader) ordinary and natural meaning rather than their (narrower) legal meaning.
Under the law of agency, servants, employees or independent contractors are not necessarily treated as “agents” (
c.f.
Attorney-General of Ceylon v Silva
[1953] AC 461
(PC) and
Chitty on Contracts
, 32
nd
edn, para. 31-008)
.
Thus, by expressly including in
the expressions “agent” and “principal” persons who might in contractual law terms otherwise be excluded, the draftsman was seeking to ensure that these terms were given their ordinary English language meaning rather than their technical legal meaning.
By way of example, see
R v. Barrett
[1976] 1 WLR 946 where an additional superintendant of births, deaths and marriages, who accepted £4 for granting an early marriage date, was held to acting on behalf of the Crown in the performance of his duties and an “agent” for the purposes of the 1906 Act.
49.
In our judgment, the key point in this appeal is that the two statutes of 1889 and 1906 provide for two
species
of corruption offence which exist in parallel. The 1889 Act addresses corruption connected with “public bodies”. The 1906 Act addresses corruption connected with “agents” and “principals”. The footprint of the two species
overlap to some extent (
c.f.
a Venn diagram), but they remain separate and distinct offences which are capable of being separately charged.
50.
Thus, the fundamental problem facing the respondents is that, unlike
the 1889 Act which expressly limits the meaning of “public body” to UK public bodies (s. 7)
, the 1906 Act contains no similar wording which limits the meaning of “agent” or “principal” to UK persons
.
The various sophisticated arguments on construction advanced by the respondents are all designed to get round this difficulty. In our judgment, however, none of the Respondents’ arguments provide an answer to the straightforward construction of the plain words of the 1906 Act.
If
Parliament had intended to exclude foreign principals from the scope of the 1906 Act, it would have done so.
51.
From that basic premise, we turn to consider in more detail some of the principal arguments raised by counsel. The first concerns the proper construction of the 1906 Act. Thus, the respondents argued that s. 1(2) of the 1906 Act defined “agent” as including “any person employed by or acting for
another
”; that a public body fell within the definition of
“
another” but the 1906 Act did not repeal s. 7 of the 1889 Act which expressly excluded from the definition of “public body”, those existing outside the United Kingdom; accordingly, s. 1 of the 1906 Act was governed by the limitation in s. 7 of the 1889 Act. In our view, however, this attempted syllogism does not survive the clear meaning of the terms “agent” and “principal” in the 1906 Act as we have set out above. The 1906 Act simply does not incorporate the definitions of the 1889 Act.
52.
Second, the respondents placed great weight on what was said to be the effect of s. 4(3) of the 1916 Act on the definition of “agent” in the 1906 Act. The argument can be summarised as follows: since s. 4(3) of the 1916 Act extended the definition of a “public body” whilst retaining its domestic limitation imposed by s.7 of the 1889 Act, and since a person serving a “public body” so defined would qualify as an “agent” for the purposes of the 1906 Act by virtue of s. 1(3), it followed logically, that the true construction of the expression “agent” must exclude agents of foreign public bodies.
53.
In short, the respondents contended that the effect of s. 4(3) of the 1916 Act was to ‘import’ the UK-based definition of a “public body” contained in the 1889 Act into the 1906 Act. In that regard, the respondents relied on the fact that s. 4(1) provides that the 1889 Act, the 1906 Act and the 1916 Act could be cited together as the “Prevention of Corruption Acts 1889 to 1916”,
i.e.
they could be read together as a ‘suite’ of Acts. Counsel for the respondents also referred us to various well-known sections in
Bennion
on
Statutory Construction,
6
th
edition (Sections 209, 234 and 262).
54.
In our view, however, the respondents’ somewhat attenuated argument based on s. 4(3) of the 1916 Act suffers from a number of flaws. The first flaw is that it ignores the fact that ss. 1(2) and (3) of the 1906 Act uses non-exhaustive language (see above) which militates against the Respondents’ restrictive construction. This non-exhaustive or inclusive language in the 1906 Act is to be seen in contrast to the exhaustive or exclusive language in s. 7 of the 1889 Act (“the expression “public office”
means
…”).
55.
The second flaw is that the respondents’ argument ignores the clear construction and effect of the 1916 Act. Section 4(2) of 1916 Act extended the meaning of “public body” in the 1889 Act to all “local and public authorities of all descriptions, in addition to those mentioned in the 1889 Act” (albeit it was accepted by the prosecution not those existing outside of the United Kingdom). Section 4(3) of 1916 Act simply made it clear that “a person
serving
under any such public body” was an “agent” under the 1906 Act in the same way as a person “
serving
under the Crown” was an “agent” under s. 1(3) of the 1906 Act. The 1916 Act thereby aligned the two species of servant under the umbrella of “agent”. Section 4(3) further widened the definition of “agent” by adding to the non-exhaustive list in s. 1(3) of the 1906 Act persons to be included within the definition of “agent”. Nowhere, however, does the 1916 Act purport to touch upon, let alone alter, the definition of the term “principal” in the 1906 Act.
56.
The third flaw is that s. 2 of the 1916 Act created a presumption of corruption which applies equally to offences under the 1889 Act and the 1906 Act, but only to employees of public bodies within the United Kingdom, and only where they receive a benefit from a person holding or seeking a contract with such a body. It is to be assumed that, for policy or political reasons, Parliament did not at this stage see fit to impose the same reverse burden of proof on private bodies or foreign public bodies. Finally, we ought to add that the mere fact that a raft of statutes covering the same area may be cited collectively (
e.g.
the Merchant Shipping Acts 1894 to 1994) does not mean that basic rules of statutory construction can be ignored.
57.
The third argument raised by the respondents concerned public policy. It was submitted that the construction placed upon the legislation by the prosecution would amount to an illegitimate ‘long-arm’ interference with the affairs of a foreign body. They also suggested that there was an incongruity in a foreign agent being criminally liable in England for making payments of a sort which would be perfectly lawful in the foreign jurisdiction.
58.
In our view, however, there is nothing in this point. It has always been within the purview of the English legislature and courts to categorise conduct of persons within their territory as criminal, and regardless of whether that same conduct would be lawful if carried on elsewhere in the world. Further, there are no sound reasons of public policy why the scope of the corruption offences under the 1906 Act should be restrictively construed so as to exclude foreign principals contrary to the natural meaning of the words used. Indeed, to do so, would lead to anomalies.
59.
The Respondents also relied upon the rule of construction against evasion (see
Bennion
on
Statutory Construction,
6
th
edition, Sections 319-326). We did not find this argument easy to follow. As we understand it, the respondents made two essential submissions. First, a later statute would not implicitly override a limit in an earlier statute. Second, it would be an abuse for a prosecuting authority to select a later Act and construe it in a manner inconsistent with the first Act.
In our view, however, there is no basis for these complaints. In short, for the reasons we have explained above, we do not accept the respondents’ construction of the legislation: the 1889 Act and the 1906 Act comprise different offences and the SFO were and are entitled to prosecute under whichever they deemed appropriate.
60.
Finally, the respondents relied upon the 2001 amendments to the 1906 Act and submitted that it was clearly thought necessary to amend the 1906 Act to widen its scope to include foreign principals, thereby lending support to the construction preferred by the judge. In our view, this argument carries no weight. We accept that, following the enactment of s. 108(2) of the 2001 Act, it was beyond argument that foreign agents and principals fell within the scope of the offence contrary to s. 1 of the 1906 Act. However, it is equally clear that the 2001 amendments were enacted
ex abundantae cautelae
to address the concerns expressed by the OECD in the 1999 Review. This concern was notwithstanding the view expressed by the government (supported by the view of the Law Commission in para. 3.18 of its 1998 Report as to which see [29] above) that foreign agents and principals were covered by s. 1 of the 1906 Act: in our judgment, both were correct.
61.
We have reached these conclusions purely as a matter of statutory construction, it being common ground that there is no authority which directly deals with the question of law raised in this appeal. It would not be appropriate, however, to conclude this judgment without reference to the few authorities which, albeit not determinative, have some relevance to the issue.
62.
R v. Raud
[1989] Crim LR 809 (CA) concerned an appeal against conviction for conspiracy to contravene s. 1 of the 1906 Act in circumstances in which the appellant, corruptly to obtain money for Irish passports, had conspired with an official working for and employed at the Irish Embassy. Territorial and jurisdictional issues were raised but it was at no stage suggested that the substantive offence could not be committed because the case involved a foreign government. More significantly, the point did not occur to the distinguished criminal lawyers that were the constitution of the court (Lord Lane CJ, Rose and Tucker JJ). Furthermore, as an example of the operation of the law, the Serious Fraud Office refer to
R v. Van der Horst
(3 January 1996, Southampton Crown Court), in which no point was taken that the corrupt payments were received by a foreign agent of a foreign principal which was a Bahamas registered subsidiary of the US company Exxon.
63.
In
Kensington International Ltd v. Republic of Congo
[2007] EWCA 1128, the Court of Appeal (Civil Division) was concerned with events subsequent to the coming into force of the 2001 Act and did not have to consider the law prior to that date. Having cited the offences contained within the 1889 Act and the 1906 Act, Moore-Bick LJ observed (at [54]):
“All these offences are capable of being committed in relation to agents and public officials abroad and
by
United Kingdom nationals abroad by virtue of sections
sections 108 and 109 of the [2001 Act]
”
64.
Given that the 2001 Act put the matter beyond argument and that the court was not considering the position prior to the passage of that legislation, the comment does not take the matter further. Similarly, in
R v. J and others
[2013] EWCA Crim 2287
, having analysed the legislative history of bribery and corruption, Lord Thomas CJ expressed the view
obiter
(at [31]) that the 2001 Act extended the 1906 Act “to cover agents and principals overseas”. That case also concerned a very different issue, namely, whether it was a necessary ingredient of the 1906 Act offence for the prosecution separately to prove lack of informed consent,
i.e.
that the payment for the prohibited purpose had been made secretly. The issue in this case neither arose nor appears to have been argued. In the circumstances, whilst we accord the observation respect, we do not accept that he was, in reality, correctly expressing what the law, prior to 2001, had been.
Conclusion
65.
For the above set out reasons, we are satisfied that prior to the coming into force of the Anti-Terrorism, Crime and Security Act 2001, it was an offence under s.1 of the Prevention of Corruption Act 1906 to corrupt an agent of a foreign principal or a foreign body. In the circumstances, this appeal is allowed and, pursuant to s. 9(14) of the 1987 Act, the ruling of Judge Pegden is reversed. | ```yaml
citation: '[2016] EWCA Crim 2'
date: '2016-01-15'
judges:
- HIS HONOUR JUDGE PEGDEN QC
- MR JUSTICE HADDON
- sitting as a Judge of the Court of Appeal
``` |
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:
2015/4441/A3
Neutral Citation Number:
[2016] EWCA Crim 599
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Friday, 15 April 2016
B e f o r e
:
LORD JUSTICE McCOMBE
MR JUSTICE IRWIN
THE RECORDER OF MIDDLESBROUGH
HIS HONOUR JUDGE BOURNE-ARTON QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - -
R E G I N A
V
TERRY GUNN
- - - - - - - - - - - - - - - - - - -
Computer-Aided Transcript of the Stenograph Notes of
WordWave International Limited trading as DTI
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - -
Mr C Aspinall
appeared on behalf of the
Appellant
The
Crown
did not appear and was not represented
- - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE McCOMBE: On 3rd August 2015 in the Crown Court at Derby before His Honour Judge Mooncey, on re-arraignment on the day fixed for his trial, the appellant changed his pleas of not guilty to four offences of rape charged in the indictment to pleas of guilty. On a fifth charge of the same offence it was ordered that that should remain on the file on the usual terms. On 3rd September 2015 he was sentenced for those offences by His Honour Judge Rafferty QC to concurrent sentences of nine years on three of the counts and on the fourth count to an extended sentence of 14 years, comprising a custodial term of nine years with an extended licence period of five years, to be served again concurrently with the other sentences. That gave rise to a total extended sentence of 14 years with a custodial term of nine years and an extension period of five years. He now appeals against that sentence by leave of the single judge.
2.
The facts of the case were these.
Count 1
3.
On the evening of 26th January 2015 the appellant and the complainant had an argument about a meal that she had cooked. Afterwards they sat down in front of the television. He pulled his trousers down and pushed his penis towards her face asking her to suck it. She said "no". He was laughing and started to hit her in the face with it. He masturbated in front of her. She put a blanket over her face to try to prevent his approaches. He pulled her arms apart to get her face out of the blanket and proceeded to lick and kiss her. He continued to masturbate until ejaculation.
4.
She thought that that was the end of it but he then proceeded to ask her for a "blow-out". She went outside for some thinking time and had a cigarette in her car. She texted him to ask if he could put her uniform for work outside so that she could get dressed elsewhere and go to her father's to stay overnight. (Both the complainant and the appellant were student nurses at the time, aged 20. They had been in a relationship for about 18 months and were living together, although their relationship was in a state of hiatus.)
5.
He refused to put the uniform out, so she returned to the flat. He would not leave her alone. He pulled her trousers down and proceeded to molest her orally. She said she did not want it, she just wanted to go to bed. In response he said "Fine, I'll fuck you". He got on top of her and began having intercourse with her against her will. She cried and he said: "It's nearly over" and proceeded to ejaculation.
Counts 3 and 4
6.
The appellant took a knife to open the bathroom door into which the complainant had locked herself after the first incident which we have related. He said he was sorry and would not do it again. They went back to bed and the next morning she did not feel she could get to her work because she was still in a state of some shock over the event the night before. She rang into work to say she was unfit. The appellant woke up, was in a bad mood and said: "Can you do me a favour, please? Can you give me a blow job, please?" She said "No". He reacted by telling her in abusive terms to shut up. He raised his fists at her and she began crying. She was sitting on the floor. He picked her up and put her on the bed and repeatedly told her to shut up as he did not want the neighbours to hear her being upset. He proceeded to give her oral sex, in spite of her protestations. He pushed her onto the bed and she felt she had no choice but to appease him by doing what he wanted by way of oral sex. Before that he inserted his penis again into her vagina. She said: "If you loved me you would not do this to me." Again he told her to shut up. He ejaculated and when she thought this was all over, as she put it he put his penis into her throat and she said he was making her gag as he shoved his penis far down towards her throat. He stripped her of her clothes, prior to raping her vaginally and orally. He stopped but at that stage he refused to let her out of the house.
7.
She said she needed a cigarette and on that pretext she got dressed and got into her car and drove around the corner. She realised then that she had to get to her work on the following morning because if she did not she might fail an assessment part of her course, so she had to try to retrieve her nurse's uniform and other related articles from the flat. She texted him back to say that she needed her belongings and she would go and stay at her father's. He texted back to her saying "You don't have to talk about it".
Count 5
8.
After about an hour the complainant arrived at the flat, went into the bedroom to collect her uniform and security ID. He followed her and pinned her to the bed. He said he wanted her to affirm her love for him. She remained frightened that he would hurt her so said that if she had sex with him would he then let her go. He said yes and proceeded to penetrate her. He ejaculated. She collected her belongings and left. She never went back to the flat and five days later she reported the matter to the police.
9.
In interview after his arrest the appellant said she had not freely given her consent and expressed remorse. He knew that she had been scared. He also texted the complainant on 27th January to apologise and made abusive comments about himself saying he deserved a lonely life and hoped that she had a good life.
10.
There is a victim personal statement which tells, not unsurprisingly, of the graphic and unpleasant effect that all this had on this complainant.
11.
The appellant is now 22 years old. He was 21 at the date of sentence. He had no previous convictions. The pre-sentence report informed the court that the appellant said that once this course of conduct had started he found that he could not stop what he was doing. He saw this as what he called "make up sex" following an argument with the victim. It appears, as Mr Aspinall has explained to us and as appears in the papers, that it was their habit after arguments to have intercourse and to some extent he thought that the same was happening here, although obviously it went far beyond that.
12.
The reporting probation officer considered that the appellant had some understanding of the experiences suffered by the victim in the course of the offences, but that this was somewhat superficial. It was stated in the report that he was sexually preoccupied, placing his own sexual needs and desires above anything else or anyone else, but it was thought not being entirely honest about the nature of this preoccupation. The officer considered that the sustained incident involving threats of violence on a vulnerable victim was likely to have caused significant psychological harm to the victim. The appellant was assessed as posing a medium risk of offending "generally" but it was stated that "until Mr Gunn has addressed the factors linked to this offending I assess him as high risk of further offending using both static and actuarial factors." A little later in the report it was said that he behaved in a manipulatory manner and there was a clear level of recklessness and risk-taking behaviour without thought for the consequences. In a further passage the report's author stated the appellant displayed limited remorse and appeared to advocate the use of sexual violence as a means of self-gratification in sex. He was at that stage in the report assessed as posing a high risk of re-offending based upon the assessment at interview, coupled with his social and offending history -- a passage with which Mr Aspinall took issue in his advice being, he submitted, not entirely based upon the true history of the appellant's background. In paragraph 4.2 of the report the officer concluded as follows:
"It's my assessment at this time that until Mr Gunn gains a clear understanding of the circumstances that have lead to his offending behaviour, learns to identify situations in which he may pose a risk to others and develop strategies for the future which will reduce his risk, his risk of offending will remain as high. I would also assess Mr Gunn as posing a high risk of serious harm towards both [the complainant] and future intimate partners, the nature of this harm being of a sexual and emotionally distressing nature."
13.
In passing sentence, the learned judge referred to the remorse expressed at the time of sentence, no doubt referring to a letter to that effect written by the appellant and which we have seen and considered. He also mentioned the appellant's past good character, but noted the comments in the pre-sentence report about an unhealthy preoccupation on the part of the appellant with his own sexual gratification. He expressed the view that the repeated conduct to this victim caused great concern to his present risk and in the foreseeable future. The judge gave a summary of the facts of the case and to the deliberate prolongation of the conduct that was not wanted by the victim, much in the same terms as we have sought to relate earlier in this judgment. This was conduct for his own gratification in which the appellant had exercised power over the complainant and by time of the rape in count 4 the judge took the view that the victim remained in fear of him because of additional threats to hit her.
14.
The appellant, said the judge, had shown no love or care for the victim and had enjoyed every single moment of the incident. He referred to the victim impact statement in which the complainant spoke of being damaged not just in the short term but in the long term. The judge concluded that the victim must have suffered severe psychological harm in all the circumstances. The repeated violations had, he said, cumulatively added to her degradation and humiliation.
15.
The judge then proceeded to consider the question of whether the appellant should be regarded as a dangerous offender for sentencing purposes. He referred to a request by counsel that sentencing should be adjourned for the preparation of a psychiatric report in view of the judge's mention of the possibility of such a sentence as a dangerous offender in the course of argument before him. The judge considered that such a report was not required, having regard to the report prepared by the experienced probation officer which we have endeavoured to summarise. The judge took the view that the answer to the question of whether the appellant presented the relevant danger to members of the public was clear and that an extended sentence was appropriate.
16.
Referring to the pleas of guilty, the judge said that if the court had been satisfied that the delay in entering the pleas had been all the appellant's own doing he would have afforded 10 per cent credit for those pleas. As it was he was prepared to apply a 25 per cent credit. He proceeded to pass the sentences to which we have referred. We will perhaps remark immediately that the present 25 per cent credit was to an extent generous.
17.
In the present appeal, Mr Aspinall in his helpful submissions has argued that the sentence was manifestly excessive. He submits that the judge was wrong not to have acceded to the request for an adjournment for the preparation of a psychiatric report and he argues that the finding of dangerousness was based upon inadequate evidence in the pre-sentence report. Although in the written grounds Mr Aspinall submitted that the judge adopted too high a starting point for the purposes of the sentencing guidelines, his argument this morning accepts that the determinate term of the sentence, a nine year period of custody, in all the circumstances was not too high. He submits that the judge should have afforded a full one-third credit for the guilty plea.
18.
Returning to that particular point, this plea was entered on the day fixed for trial. The appellant sought to blame his previous solicitors for advising him incorrectly. The judge declined to go down that route, as do we. The appellant knew from the outset what he had done. The victim would no doubt have expected until a very late stage that she would have to give oral evidence. The discount of 25 per cent given by the judge was in our view generous to the point of leniency.
19.
So far as the principal grounds are concerned, we turn to the question of the extended sentence which has been the thrust of Mr Aspinall's cogent submissions to us this morning. He submits that the learned judge should have acceded to his application for an adjournment and indeed has presented to us this morning a report from a consultant psychiatrist on Mr Gunn's medical condition, which was not of course before the learned judge.
20.
The thrust of the report appears in paragraph 15 of the psychiatrist's opinion. It is not necessary to repeat a great deal of that but the psychiatrist refers to a number of risk reducing factors in this appellant's case. There was no concern in relation to drug or alcohol misuse. He was a young man, intelligent as well, capable of benefiting from various therapies on offer and while being young may increase the statistical risk of future offences, given greater life expectancy (that no doubt he thought was a rather simplistic approach) it also means he has time to change. The doctor concluded that there was no evidence of mental disorder, nor was he mentally ill at the time of the relevant offences, there was no impairment of intelligence and there was no indication from the history that he had any personality disorder that the doctor could detect.
21.
Standing back from those submissions, it appears to us that it might on reflection have been helpful had the learned judge acceded to the course that Mr Aspinall proposed in seeking a psychiatric report which could only have assisted an understanding of the important question of whether an extended sentence was indeed appropriate for this young man, given, as was conceded on all hands, a significant custodial sentence would be passed in which risk would be addressed and at which this young man could undergo suitable offender management courses and treatment. We note that the passage in the pre-sentence report, to which we have already referred, said that there was a risk until the appellant gained a clearer understanding of the circumstances of the offending. It seems to us that the psychiatric report that we now have might well have persuaded the judge that the lengthy custodial term that he envisaged in any event would be adequate to meet the risk of the public and also afford the necessary opportunity to the appellant to mend his ways.
22.
This was clearly an absolutely appalling set of offences. This poor woman was disgracefully degraded. He could not have expected anything other than the severest determinate sentence and we can well understand why the judge on perhaps limited material thought that he could be properly categorised as dangerous. We do not criticise the learned judge's finding in that respect, but we think, standing back from the matter, that this may have been one of those cases in which and indeed we find it is one of those cases in which it was not necessary to pass an extended sentence and to that extent the sentence passed was excessive. We propose to allow the appeal, to quash the extension period of five years that was imposed by the learned judge but conserving the nine year determinate sentence which the learned judge had in mind. To that extent the appeal is allowed. | ```yaml
citation: '[2016] EWCA Crim 599'
date: '2016-04-15'
judges:
- LORD JUSTICE McCOMBE
- 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}
======
| No:
04/6620/C4
Neutral Citation Number:
[2005] EWCA Crim 33
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Friday, 14 January 2005
B E F O R E:
LORD JUSTICE CLARKE
MR JUSTICE POOLE
MR JUSTICE ELIAS
- - - - - - -
R E G I N A
-v-
JAMES MICHAEL PHIPPS
- - - - - - -
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 REVANTHA AMARASINHA
appeared on behalf of the APPELLANT
MR ADRIAN AMER
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE CLARKE: This is the judgment of the court.
2.
The appellant is James Phipps, aged 39. On 28th October 2004, in the Crown Court at Kingston, before His Honour Judge Haworth, he pleaded guilty to dangerous driving. On 25th November 2004 he was sentenced to eight months' imprisonment and disqualified from driving for two years. He appeals against conviction and sentence by leave of the single judge, Cox J, who refused bail but directed expedition.
3.
At about 9 am on 29th October 2003 the appellant drove his vehicle, a Ford Explorer, south in the wrong direction on the northbound carriageway of the A3 and by the New Malden underpass collided head on with an oncoming vehicle travelling in the outside lane. A breath test was taken at the scene, which registered positive. The appellant was arrested on suspicion of driving with excess alcohol. He was taken to Kingston Police Station, where an evidential specimen of breath was taken at 10.17 am. The lower reading was recorded as 50 microgrammes of alcohol per 100 millilitres of breath, which compares with the legal limit of 35 microgrammes. A blood sample was then taken, which showed recent use of cocaine by the appellant.
4.
The victim was injured but fortunately less seriously than might have been the case. Her injuries included redness, abrasion and bruising over the breast bone or sternum, which was tender on palpation, and a swollen and bruised right wrist. Her right shoulder blade and hip were also tender and there was bruising across the lower abdominal region and on both knees. The appellant suffered broken ribs.
5.
The appellant was interviewed on the day of the accident. He said that he could not remember what had happened but admitted that he had drunk between four and six Jack Daniels and coca-cola. His last drink was estimated to have been consumed between about 1.30 and 2 am. He was bailed to return to Kingston Police Station on 17th December 2003. On that day he was charged with driving with excess alcohol contrary to
section 5 of the Road Traffic Act 1988
. He made no reply.
6.
The appellant subsequently attended Kingston Magistrates' Court on 23rd December 2003 and pleaded guilty to driving with excess alcohol. He was fined £300 and disqualified from driving for twelve months.
7.
The appellant was subsequently summonsed in relation to dangerous driving in late January or early February 2004. It appears that what happened was that after the appellant was sentenced by the magistrates the victim or her family contacted the press complaining about the level of the sentence. Perhaps as a result of reports in the press, the prosecuting authorities considered the matter further and the appellant was summonsed in relation to dangerous driving in late January or early February 2004. The matter came before His Honour Judge Haworth on 28th October 2004 when it was submitted that, having been convicted (albeit after a plea) and sentenced for driving with excess alcohol, it was an abuse of the process for the Crown to proceed subsequently against him for dangerous driving where the dangerous driving arose out of the same or substantially the same facts.
8.
The judge ruled that there was no abuse of process. He held that the prosecution for dangerous driving did not arise out of the same facts as the earlier prosecution for driving with excess alcohol. It was following that ruling that the appellant pleaded guilty.
9.
Mr Amarasinha submits on behalf of the appellant that the judge was wrong so to hold. It appears to us that in order to determine this question it is necessary first to identify the correct legal principles and then to apply them to the facts.
Principle
10.
The propositions advanced on behalf of the appellant may be summarised as follows. 1. Subject to proposition 2, no one should be punished twice for an offence arising out of the same or substantially the same set of facts. To do so would offend the principle that a defendant is not to be tried again on the same or substantially the same facts for more serious offences on an ascending scale of gravity. 2. Proposition 1 does not apply where the prosecution shows that there are special or exceptional circumstances which make it just for a second prosecution to be brought. Mr Amarasinha relies in particular upon
R v Elrington
(1861) 1B&S 688;
Connelly v DPP
[1964] AC 1254
and
R v Beedie
(1987) 2 Cr App R 176
. In the particular circumstances of this case he also relies upon
R v Forest of Dean Justices, ex parte Farley
[1990] RTR 228
and this passage in Archbold 2005 at paragraph 32-29:
"
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 Justices, ex parte Farley
[1990] RTR 228
DC."
11.
In our judgment, subject to some further elaboration, propositions 1 and 2 are correct. They are soundly based on the authorities relied upon.
12.
The only scope for possible debate is whether the principle applies not only where the facts are the same but also where they are substantially the same and precisely what that means.
13.
The classic statement of principle is that of Cockburn CJ in
Elrington
. In that case the co-accused has been summarily tried and acquitted of common assault. He was subsequently indicted on the same facts for assault causing grievous bodily harm and assault causing actual bodily harm. The accused demurred. The demurrer was upheld. The actual basis for the decision was that, by virtue of sections 28 and 29 of the Offences Against the Person Act 1828, a certificate of acquittal of common assault released the accused "from all further or other proceedings, civil or criminal, for the same cause". Had the justices thought the assault to be an aggravated one, they would, according to the procedure of the day, have sent it for trial. However, Cockburn CJ made the following observation at page 696:
"... we must bear in mind the well-established principle of our criminal law that a series of charges shall not be preferred, and, whether a party, accused of a minor offence is acquitted or convicted he shall not be charged again on the same facts in a more aggravated form."
14.
That principle was approved by the House of Lords in
Connelly
. This can perhaps be most clearly seen in the speech of Lord Devlin. He said at pages 1356 and 1358 that the principle was essentially the same as that exemplified in the civil law in the classic statement of Wigram VC in
Henderson v Henderson
(1843) 3 Hare 100 at pages 114-115. Lord Devlin expressly approved the statement of Cockburn CJ at pages 1357. However, as we read his speech, he did not restrict the principle to a second trial on the same facts, but extended it to a trial on "the same or similar facts": see page 1360. See also per Lord Reid (at page 1296) where he said:
"So the general rule must be that the prosecutor should combine in one indictment all the charges which he intends to prefer."
15.
Lord Pearce put it in this way at page 1367:
"It might seem at first sight that the second prosecution here is a breach of the 'well-established principle of our criminal law' referred to by Cockburn in
R v Elrington
and approved by Pollock B in
R v Miles
[
(1890) 24 QB 243
] that 'a series of charges shall not be preferred'. Since the time when those words were spoken the joinder of charges in an indictment has been deliberately facilitated by the
Indictments Act, 1915
, and there is thus the more reason for saying that in general the prosecutor should join in one indictment all the charges that he wishes to prefer in respect of one incident. It would be an abuse if he could bring up one offence after another based on the same incident, even if the offences were different in law, in order to make fresh attempts to break down the defence."
16.
We note in passing that in the
R v Forest of Dean Justices
case in the Divisional Court Garland J said at page 235K that
Connelly
was authority for these propositions among others:
"(1) Pleas of autrefois acquit and autrefois convict must relate to a crime which is the same, or in the effect the same, as that originally charged. (2) There is a wider principle that a second trial involving the same or similar facts may in the discretion of the court be stayed if to proceed would be oppressive or prejudicial and therefore an abuse of the process of the court."
17.
We agree, subject to this. The discretion is not unfettered and is a very different discretion from that exercised in the usual abuse of process case based, say, on excessive delay, where the burden of proof is on the defence.
18.
This can be seen from the decision of this court in
Beedie
. In that case a 19-year-old girl died of carbon monoxide poisoning in a rented flat. The CO
2
gas could not escape from a gas fire because the chimney was blocked. The chimney had not been properly cleared of debris over a long period of time. The appellant was the landlord. He pleaded guilty to an offence under
section 3(2)
and
section 33
of the
Health and Safety at Work Act 1974
. There was a subsequent inquest at which he gave evidence and made a number of admissions. He was later prosecuted for manslaughter. The trial judge, Clarke J, rejected a submission that the proceedings should be stayed as an abuse of process. He carried out the kind of balancing exercise which is carried out in the ordinary case of an application for a stay where the burden is on the defendant and an important question is whether the defendant can have a fair trial: see, eg,
Attorney-General's Reference No 1 of 1990
(1992) 95 Cr App R 296
.
19.
This court held that that approach was wrong and that the judge should have applied propositions 1 and 2 above. Rose LJ, giving the judgment of the court, said at page 175C:
"In any event, consideration of whether or not the appellant could have a fair trial, which would have been material to an application to stay for abuse of process because of delay, was inappropriate. A stay on such a ground is an exceptional course (see
Attorney-General's Reference (No 1 of 1990
) at page 303) and the
onus
is on the defence to show that, on the balance of probabilities, no fair trial can be held; whereas the general rule presently under consideration is that there should be a stay, and it is for the prosecution to show that, for special circumstances, there should not be."
In
Beedie
it was held that there were no specific circumstances and the appeal was allowed.
20.
It appears to us that the above principles are supported by the approach of the Divisional Court in
R v Forest of Dean Justices Ex parte Farley
even though the problem being considered there was somewhat different, as was the problem considered in
R v Hartnett
[2003] Crim LR 719. In neither of those cases was the court concerned with a case where the second set of proceedings was only commenced after the first set of proceedings had been determined, which is the position here and was the position in
Beedie
. The correct question on the authorities in a case of this kind is whether the second set of proceedings arise out of the same or substantially the same facts as the first.
21.
The authorities do not consider in detail what is meant by the same or substantially the same facts but, in our view, as Lord Pearce makes clear in the passage already quoted, they essentially mean that the Crown should not be permitted, save in special or exceptional circumstances, to bring a second set of proceedings arising out of the same incident as the first set of proceedings after the first set of proceedings has been concluded. The principle (which is in essence that identified in the civil law by Wigram CJ in
Henderson v Henderson
) is that the Crown should decide at the outset, or at the latest before the conclusion of the first set of proceedings, what charges it wishes to bring arising out of the same incident. Any other approach is unfairly oppressive to a defendant. It is for that reason that the burden is on the Crown to identify special or exceptional circumstances to justify such a course. Once the Crown has identified the charges it wishes to bring, it is a matter of case management how those charges are tried. Thus it is a matter of case management where and when the trial or trials should take place.
22.
In these circumstances we are unable to accept the approach suggested by Mr Amer on behalf of the Crown in his skeleton argument. He there submitted that the burden of establishing that the second set of proceedings amounts to an abuse of process is on the defence and that an abuse of process will occur when (a) the defence has suffered serious prejudice to the extent that a fair trial could not take place (see
R (Ebrahim) v Feltham Magistrates' Court
[2001] 2 Cr App R 23
DC; (
b) the behaviour of the prosecution has been so bad that it is not fair that the defendant should be tried (see
R (Ebrahim
); and (c) there has been an element of bad faith or at least some serious fault on the part of the prosecution (see
R (Ebrahim)
. None of the above applied, he submitted, and therefore no abuse of process had occurred.
23.
In our view those submissions demonstrate precisely the same error as was made by the trial judge in
Beedie
. We cannot therefore accept them. For the reasons already given, the burden of establishing special or exceptional circumstances is on the Crown and the question is not whether a fair trial is possible. We turn to the facts.
The Facts
24.
The judge held that the prosecution for dangerous driving did not arise out of the same facts as the prosecution based on excess alcohol. His reasons can be seen from observations which he made in the course of the argument. Thus he distinguished
Beedie
in this way at page 4 line 23:
"JUDGE HAWORTH: In
Beedie
, the breach of the Health and Safety Regulations and the allegation of manslaughter, I think it was, are absolutely the same, whereas in your case there is a distinction: one relates to the driving and one relates to the amount of alcohol in his blood."
A little later at page 5 line 7:
"MR AMARASINHA: ... the facts are the same though. He was driving--
JUDGE HAWORTH: No, they are not. The excess alcohol relates to alcohol in his blood. It does not relate to his manner of driving."
25.
We have already referred to the judge's ruling in which he held that the offences did not arise out of the same facts and added that there was nothing unfair about the decision to prosecute this defendant for dangerous driving because there was evidence that he drove dangerously.
26.
We should note that there was indeed evidence that the appellant drove dangerously quite apart from his condition: there was for example evidence of his veering from side to side in the wrong carriageway. The question is whether the judge was correct to reach the conclusion that he did.
27.
In our judgment he was not. It is of course true that the offences are different, but that is always true in this kind of case; otherwise the second proceedings would be determined by a plea of autrefois convict or autrefois acquit, as the case might be. Further, it is not sufficient to say, as the judge did, that there was evidence of dangerous driving because it will always be the case that there is evidence in support of the charge in the second set of proceedings. The drink driving offence contains these ingredients: the Crown must prove that the defendant was driving a motor vehicle on a road or other public place with excess alcohol in his blood, urine or breath. Thus, if there had been an indictment, the particulars would have alleged that the defendant was driving on the A3 with excess alcohol in his blood. In the case of dangerous driving, as the indictment shows, the Crown had to prove that the appellant drove his car on the A3 at Malden dangerously. Both the allegations arose out of the fact that the appellant was driving his car on the A3 at Malden in an unlawful manner. In the drink driving case the nature of the driving was not relevant to conviction but was relevant to penalty. Mr Amer does not challenge that proposition. It is in any event supported by the sentencing guidelines supplied to magistrates which we have seen. In the dangerous driving case the condition of the appellant, induced by drink, was relevant to both the nature of the driving and in particular, on the facts of this case, to penalty. It was held in
R v Woodward
[1995] 2 Cr App R 388
that on a prosecution for causing death by dangerous driving, contrary to
section 1 of the Road Traffic Act 1988
as substituted, the fact that the driver was adversely affected by alcohol was a relevant circumstance in determining whether he was driving dangerously.
28.
We should, however, note that we recognise that on the facts of this case, as we have already indicated, there was other independent evidence that the defendant was driving dangerously.
29.
In all these circumstances it seems to us that both these prosecutions and the allegations in them arose out of the same or substantially the same facts, namely driving the appellant's car on the A3 at Malden. They both arose out of the same incident, in much the same way as in
Beedie
both prosecutions arose out of the death of the victim caused by CO
2
poisoning. Here the charges are different; so were they in
Beedie
, where the prosecution authority, under
section 3
of the
Health and Safety at Work Act 1974
, simply had to prove that there was a breach of the duty in
section 3(2)
of that Act, which provides that "it shall be the duty of a self-employed person to conduct his undertaking in such a way as to ensure, so far as is reasonably practical, that he and other persons, not being his employees, who may be affected thereby, are not thereby exposed to risk to their health or safety", whereas in order to prove manslaughter the Crown had to prove that the death was caused by the appellant's gross negligence.
30.
Mr Amer correctly conceded in argument that there was at the very least a substantial overlap between the facts of the two cases. Indeed - also in our view correctly - he conceded that a rational prosecutor would have considered at the outset what charges to bring arising out of the incident on the A3 that day. He submitted that it may be that in a busy prosecutor's office that consideration may have been overlooked. That may be so, but it appears to us that in a standard case of this kind there should be no difficulty for prosecutors considering at the outset what charges they wish to advance arising out of any particular incident.
31.
In all these circumstances we conclude that the second proceedings arose out of the same or substantially the same facts as the earlier proceedings in the sense which we have indicated. Mr Amer correctly concedes that, if that is so, there are no special circumstances in this case which would entitle the Crown to bring the second set of proceedings. It follows that, in our judgment, the judge should have stayed the second proceedings as an abuse of process and that this appeal against conviction must be allowed. | ```yaml
citation: '[2005] EWCA Crim 33'
date: '2005-01-14'
judges:
- LORD JUSTICE CLARKE
- MR JUSTICE POOLE
- MR JUSTICE ELIAS
``` |
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 1939
Case No:
201203311/A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 24th August 2012
B e f o r e
:
MR JUSTICE IRWIN
MRS JUSTICE NICOLA DAVIES DBE
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
STUART ANTHONY ROYSTON MORGAN
- - - - - - - - - - - - - - - - - - - - -
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 P Mason
appeared on behalf of the
Applicant
Mr L Chinweze
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
MR JUSTICE IRWIN
:
1.
On 2nd April 2012 in the Yeovil Magistrates' Court this applicant pleaded guilty to theft. By necessary consequence of that plea he was in breach of a suspended sentence order imposed on 2nd February 2012 at the Exeter Crown Court, comprising 6 months' imprisonment suspended for 2 years, with conditions of 2 years' probation supervision and a requirement to undergo treatment for drug dependency, by or under the direction of the probation services for 12 months for offences of burglary and possession of a Class A drug.
2.
On 4th May 2012, following committal, His Honour Judge Cottle, sitting in the Exeter Crown Court, sentenced the applicant as follows: for the substantive offence of theft, 9 months' imprisonment and for the breach of a suspended sentence, which was admitted, the breach being constituted in major part by the theft offence, 6 months' imprisonment, those sentences to be served consecutively to each other.
3.
The Registrar has referred the applicant's application for leave to appeal against sentence to the Full Court and granted a representation order and for reasons which will emerge, we grant leave and proceed to deal with the substance of the appeal.
4.
The theft offence facts can be summarised as follows. The applicant was asked to drive two other men to the Western Power distribution site in the early hours of the morning of the day concerned. They removed fittings from the bottom fence around the site and entered the compound. Police were summoned and saw a co-accused carrying a roll of metal towards a gap in the fence. The appellant was inside the compound standing by two large skips containing the rolls of copper wire. The appellant told police that the third man, who had been seen but who was not apprehended, was a man to who he owed money in relation to drugs that had been supplied to him.
5.
In interview about the theft, the appellant made no comment. All of the copper rolls of wire were recovered. They had been piled up near the point of entry to the site.
6.
The facts of the burglary offence, for which the appellant had received the suspended sentence in February were as follows. On Friday 20th December 2011 the appellant was involved in a non dwelling-house burglary of a portacabin at James Pryce Tractors in Tiverton. Various items were stolen, including two Blackberry mobile phones which were later recovered at the appellant's home address. In interview the appellant had denied the offence but, of course, subsequently admitted his guilt.
7.
The appellant was at sentence 41 years of age. He had 56 convictions for theft and kindred offences and nine for fraud and like offences. He had received 12 weeks' imprisonment in 2009 for burglary and theft; 5 years' imprisonment in 2004 for six offences of burglary and theft, one theft from a motor vehicle, two offences of receiving stolen goods, six of obtaining by deception and one of attempting to obtain by deception. On that occasion he asked for 26 matters of a similar nature to be taken into consideration. He had received other sentences of imprisonment for burglary and theft in 1997, 1994 and as far as back as 1991.
8.
The pre-sentence report was prepared for the judge, in the course of which the appellant accepted responsibility for the theft but sought to mitigate it by stating he had been coerced into taking part because of the drug debt. He was said to have limited appreciation of the consequences to the community of his offending, with a poor attitude to victims and the community. His anti-social behaviour and pro-criminal attitudes were closely linked to his heroin addiction - as we pause to comment, no doubt was his long standing repeat offending of this kind.
9.
His progress on the suspended sentence order had been poor. He was in breach, by means of a failure to attend, in any event. He had consistently failed to supply clean drug test. His continued use of heroin meant that he remained at a high risk of re-offending.
10.
The grounds of appeal advanced on behalf of this appellant included reference to the fact he pleaded guilty at the Magistrates' Court and was committed because of the suspended sentence of the breach. His co-accused, who had committed a greater role in the substantive offence of theft before the magistrates, was dealt with by them and dealt with by means of a community order. Thus it was said by Mr Mason, again with commendable clarity and brevity, that in circumstances where the magistrates felt that the case was suitable for sentence by them in respect of the co-accused, the sentence passed by the judge on this appellant was manifestly excessive.
11.
The Registrar referred the application for leave to this court, really because of a technical problem. Looking at the memorandum of the entry on the register of the relevant Magistrates' Court, the substantive offence of theft was committed to the Taunton Crown Court, as it was then said to be, pursuant to paragraph 8(6) of Schedule 12 of the Criminal Justice Act 2003. It is accepted by all parties, as had been observed by the Registrar of Criminal Appeals, that was an error and the committal could not have been pursuant to that paragraph.
12.
The legal position in relation to committals of this kind is technical. It is well established that an error in recording the basis of committal will not be fatal to the validity of the committal. This court will look to the substantive decision taken by the magistrates as to the basis of committal: see
R v Ayhan
[2011] EWCA Crim 3184
) restating the effect of
R v Folkestone and Hythe Juvenile Court Justices ex parte R
(1982) 74 Cr App R 58
. However, the basis of the committal is important, since a decision to commit by one or other route may result in a limit on the powers of sentence available to the receiving court.
13.
If a defendant who is subject to a suspended sentence of imprisonment, breaches that sentence by committing a further offence, which is triable either way, and admits his guilt of that further offence, the magistrates have two matters to address: a fresh offence and an admitted breach of a Crown Court suspended sentence. It is important for the magistrates to keep in mind that those are discrete, separate matters. It will normally be the case that magistrates will feel that the Crown Court should deal with a breach where the Crown Court has imposed a suspended sentence. It should be noted that magistrate have the power to deal with such a breach themselves (see Schedule 12 paragraph 11(2) of the Criminal Justice Act 2003). However, as we have said, the Magistrates' Court will very often conclude that a breach of a Crown Court suspended sentence should be committed to the Crown Court.
14.
What then of the substantive offence that constitutes the breach? Good sentencing practice requires that all matters should normally be dealt with together, perhaps particularly so, where the relevant breach of a suspended sentence is a fresh offence. In this case the committal of the breach is in conformity with Schedule 12 of the 2003 Act but the underlying power to commit is that laid down in section 6(1) of the Powers of Criminal Courts (Sentencing) Act 2000, the committal being under or consistent with paragraph 11 subparagraph 2 of Schedule 12, which is one of the enactments recited in section 6(4) of the 2000 Act. Thus the breach is, without more, committed by way of section 6(1).
15.
The wording of section 6(1) may be important. The subsection reads as follows:
"This section applies where a magistrates’ court ('the committing court') commits a person in custody or on bail to the Crown Court under any enactment mentioned in subsection (4) below to be sentenced or otherwise dealt with in respect of an offence ('the relevant offence')."
16.
It might be argued that "the relevant offence" may also comprise the substantive offence which constitutes the breach, in addition to the breach itself which is of course a separate criminal offence and which will be sentenced separately. Unless "the relevant offence" is the substantive offence, the latter cannot be committed under section 6(1).
17.
Subsection (2) of the Act reads as follows:
"Where this section applies and the relevant offence is an indictable offence, the committing court may also commit the offender, in custody or on bail as the case may require, to the Crown Court to be dealt with in respect of any other offence whatsoever in respect of which the committing court has power to deal with him (being an offence of which he has been convicted by that or any other court)."
18.
This is certainly apt to catch any unrelated offence which should be dealt with at the same time. If the substantive crime which breaches the suspended sentence does not constitute all of or part of the "relevant offence" under section 6(1), then section 6(2) would be apt to catch the substantive offence also; ie section 6(2) would be an appropriate route for committal of that substantive offence alongside the breach.
19.
Why does all this matter? The answer is because of the potential limits of sentencing powers arising from different committal routes.
20.
Section 7 of the Powers of Criminal Courts (Sentencing) Act 2000 limits the powers of sentencing in the Crown Court where the committal has been by way of section 6 of the Act. Section 7(1) reads as follows:
"Where under section 6 above a magistrates’ court commits a person to be dealt with by the Crown Court in respect of an offence, the Crown Court may after inquiring into the circumstances of the case deal with him in any way in which the magistrates’ court could deal with him if it had just convicted him of the offence."
It follows that, without more, a committal pursuant to section 6(1) or 6(2) will attract the limits of sentencing powers which apply to the Magistrates' Court dealing with that offence.
21.
However, that position is altered or qualified by the provisions of section 7(2) which read as follows:
"Subsection (1) above does not apply where under section 6 above a magistrates’ court commits a person to be dealt with by the Crown Court in respect of a suspended sentence, but in such a case the powers under [paragraphs 8 and 9 of Schedule 12 to the Criminal Justice Act 2003] (power of court to deal with suspended sentence) shall be exercisable by the Crown Court."
22.
Because of the abrogation of the limit of sentencing powers derived from section 7(2), there is no difficulty in respect of the breach of a suspended sentence. The breach, in the pure sense, must be covered by the phrase "in respect of a suspended sentence" which is laid down in paragraph 7(2). Thus, in respect of the suspended sentence breach, it must be that the Crown Court has the powers of sentence, set out in paragraph 8 and 9 of Schedule 12 of the 2003 Act. Those powers mean that the Crown Court is not limited to the sentencing powers of the Magistrates' Court, at least in respect of the strict offence of breaching the suspended sentence. However, the matter may be less clear in respect of the substantive offence
. The legislation does not say that section 6(1) is disapplied in respect of "the relevant offence", much less "any offence which constitutes a breach of a suspended sentence".
23.
It may be possible that section 7(2) means that where a person is committed to be dealt with by the Crown Court in respect of a suspended sentence, then the Crown Court has untrammelled powers of sentence subject to the schedule to the 2000 Act in respect of all matters committed to the court. That would seem doubtful given the explicit reference to paragraphs 8 and 9 of Schedule 12 and powers contained therein which, on the face of it, are only really relevant to the breach problem. It follows that it may well be the case, absent a committal pursuant to section 3 of the 2000 Act, that section 7(1) is only disapplied in relation to the Crown Court powers on the breach proper of the suspended sentence and not in relation to the substantive offence which constitutes the breach, even where that is committed to the Crown Court at the same time as the breach of the suspended sentence.
24.
This analysis has not been fully addressed by either side in this case. It will require careful thought and written submissions before a satisfactory answer can be reached.
25.
There is one clear route by which the difficulty could be avoided. Sections 3(1) and 3(2) of the Powers of Criminal Courts (Sentencing) Act 2000 read as follows:
"(1) Subject to subsection (4) below, this section applies where on the summary trial of an offence triable either way a person aged 18 or over is convicted of the offence.
(2) If the court is of the opinion—
(a) that the offence or the combination of the offence and one or more offences associated with it was so serious that greater punishment should be inflicted for the offence than the court has power to impose ...
[the Crown Court should, in the court's opinion, have the power to deal with the offender in any way to do with him as if he had been convicted on indictment] the court may commit the offender in custody or on bail to the Crown Court for sentence in accordance with section 5(1) below."
Section 5(1) gives the Crown Court in circumstances of a section 3 committal full powers of sentence.
26.
We have already observed that any Magistrates' Court is likely to commit an offender who has breached a Crown Court suspended sentence by the commission of a further offence. If, at the same time, the Magistrates' Court were to consider that the gravity of the substantive offence which constitutes the breach, and/or the gravity of that offence taken with any other associated matters, was such as to satisfy the test in section 3(2), then those offences should be committed pursuant to section 3 rather than section 6.
27.
Returning to the facts of this case: it is conceded by all parties that it cannot properly have been committed by paragraph 8(6) of Schedule 12. The sensible and helpful remarks made in the course of looking at the file by the Deputy Justice's clerk for South Somerset and Mendip, lead directly, in our view, to the conclusion that the true basis of the committal here was pursuant to section 6 of the Act. It follows that unless the analysis we have indicated may be possible is correct, the powers of the Crown Court were limited in that case to those of the magistrates and the judge in sentencing this appellant to 9 months' imprisonment for the substantive offence of theft was acting beyond the powers he had. We reach that conclusion with no hint of criticism towards the learned judge. As will already be evident from this judgment, the tortuous route and the difficulty of following it in this case is obvious.
28.
As to the argument on the merits, accepting a limit on the sentence here mirrors the merits of the case in our view. The complaint of disparity between a community penalty passed on the co-accused and a 9 month substantive sentence passed on this offender, in our view, means that disparity was real. There is a valid argument that the sentence was excessive irrespective of the limitation on sentencing powers.
29.
This offender was equally culpable with his co-accused but he cannot have been regarded as more culpable than his co-accused. It seems inconceivable that had the magistrates expressly considered this offence of theft against the criteria under section 3, they could not have been satisfied with their powers of sentence and that is because the role of the two in the offending was very similar.
30.
Having considered the matter with the merits in mind, as well as the limitation in sentence, it seems to us that the proper course is to quash the sentence of 9 months' imprisonment and substitute a sentence of 4 months' imprisonment, reflecting the plea of guilty and beginning at the starting point of the Magistrates' Court sentencing powers. That will be served consecutively to the 6 months passed by the learned judge in respect of the breach, making a total of 10 months' imprisonment. As we understand it, 112 days have been served and they will count towards the total 10 months' imprisonment in the case.
31.
To that extent, this appeal succeeds. | ```yaml
citation: '[2012] EWCA Crim 1939'
date: '2012-08-24'
judges:
- MR JUSTICE IRWIN
- MRS JUSTICE NICOLA DAVIES 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.
2009/02169/D3
Neutral Citation Number:
[2010] EWCA Crim 2005
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Thursday 22 July 2010
B e f o r e:
LORD JUSTICE MOORE-BICK
MR JUSTICE McCOMBE
and
HIS HONOUR JUDGE FRANCIS GILBERT QC
)
(
Sitting as a Judge of the Court of Appeal Criminal Division
)
- - - - - - - - - - - - - - - - - -
R E G I N A
- v -
DANIEL MYERS
- - - - - - - - - - - - - - - - - -
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4
Telephone 020 7404 1400; Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - -
Mr M Duck
appeared on behalf of the Applicant
- - - - - - - - - - - - - - - - - -
J U D G M E N T
Thursday 22 July 2010
LORD JUSTICE MOORE-BICK:
I shall ask Mr Justice McCombe to give the judgment of the court.
MR JUSTICE McCOMBE:
1. On 25 March 2009, in the Crown Court at Birmingham, before His Honour Judge Thomas QC and a jury, the applicant was convicted of aggravated burglary and was sentenced to a term of imprisonment for public protection with a specified minimum custodial term of six years (less four days spent in custody on remand). He now renews his application for leave to appeal against his conviction, following refusal of such leave by the single judge.
2. The renewed application is presented some considerable period out of time. This morning Mr Duck has amplified what was said in the letter from the solicitors explaining that delay. We are satisfied that an adequate explanation has been given and we grant the extension of time.
3. The circumstances leading to the charges are set out in full in the Criminal Appeal Office Summary. The short issue is this. The complainant was the ex-partner of the applicant's mother with whom he had been in a long-term relationship. The complainant had been blind since 1989. He was 51 years old.
4. Between the late evening of 18 September and the early hours of 19 September 2008 he was in bed when two men forced themselves into his home. One of them threatened him with a sawn-off shotgun. A second man searched the premises and in the course of a search of the kitchen drawers said, in a disguised voice, "I can't find it. I don't know where it is". The complainant stated in evidence that he recognised the applicant's voice straight away from that short sentence and asked, "Is that you, Daniel?" All movement ceased from the men and one of them was said to have said, "Shush". The complainant bravely fought back and managed to dislodge the gun from the man's grasp. The barrels became detached and were left at the scene. The two men left empty handed.
5. The case for the Crown turned upon that voice recognition. The submission was made throughout by the defence that it was a weak case of recognition. To an extent, that was at one stage conceded by counsel for the Crown in the course of argument before the learned judge.
6. The main argument which Mr Duck seeks to adduce on behalf of the applicant on the proposed appeal is that the applicant's two convictions for aggravated burglary should not have been permitted to be adduced in evidence because they were prejudicial, in support of what he says was a weak case and in breach of the principles set out in the judgment of this court in
R v Hanson
[2005] 2 Cr App R 21
.
7. In the course of the trial, and in the light of the ruling on the applicant's convictions, Mr Duck applied to adduce in evidence the convictions of the complainant, who had had convictions for indecent assault and certain other matters. It was suggested as part of the defence that the complainant had a motive for making false accusations because of the applicant having spread the fact of his conviction for indecent assault widely in the local area.
8. Mr Duck's submission to us is that he ought to have been allowed to adduce those convictions. He submits that the applicant's convictions should not have been permitted to be adduced in evidence, but in any event he submits that there was an imbalance created by the admission of the applicant's convictions, as against the apparent good character of the complainant in front of the jury.
9. We have considered those points. There is much no doubt to be argued, and we have not heard from the Crown. We consider, however, that the points have sufficient merit to warrant a grant of leave to argue the case as a whole before the full court and we grant leave accordingly.
LORD JUSTICE MOORE-BICK:
Mr Duck, you have your leave. Are you asking for a representation order?
MR DUCK:
I am, my Lord, yes.
LORD JUSTICE MOORE-BICK:
To include today, I take it?
MR DUCK:
I am grateful, my Lord.
LORD JUSTICE MOORE-BICK:
Yes, very well.
MR DUCK:
I am very grateful, my Lord. | ```yaml
citation: '[2010] EWCA Crim 2005'
date: '2010-07-22'
judges:
- LORD JUSTICE MOORE-BICK
- MR JUSTICE McCOMBE
``` |
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:
200407115/D2
Neutral Citation Number:
[2005] EWCA Crim 1907
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Monday, 11th July 2005
B E F O R E:
LORD JUSTICE MANCE
MR JUSTICE ELIAS
MR JUSTICE HEDLEY
- - - - - - -
R E G I N A
-v-
W.R.
- - - - - - -
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 A FULLER
appeared on behalf of the APPELLANT
MR S MOONEY
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE MANCE: On 26th January 2004 in the Crown Court at Bristol before the Recorder of Bristol, His Honour Judge Crowther QC, the appellant was convicted of three counts of indecent assault on a female: counts 1/1, 1/2 and 1/4. He was found not guilty of one count of rape, count 1/3, which was a primary alternative to count 1/4. He was sentenced on 3rd February 2004 before the same court on count 1/1 to six months' imprisonment, on count 1/2 to eight months' imprisonment concurrent, and on count 1/4 to 16 months' imprisonment concurrent. He was also sentenced to four months' imprisonment consecutive in relation to a indecent assault, count 2/3, unrelated to this appeal, to which he had pleaded guilty. The total sentence was thus 20 months' imprisonment.
2.
He now appeals against conviction by leave of the single judge who granted an extension of time of 44 weeks.
3.
The appeal is limited to count 1/4. In the circumstances in which it arises we need not say anything in detail about the facts, save that the complainant alleged in respect of count 1/1 fondling of her breasts, in respect of count 1/2 digital penetration and in respect of counts 1/3 and 1/4 sexual intercourse in the course a relationship in each case which commenced when she was only 13 years old. The appellant was at the time some 28 years old.
4.
The appellant's case involved a denial of all the allegations and a denial of any form of sexual relationship.
5.
The prosecution was brought in respect of counts 1/1, 1/2 and 1/4 more than 12 months after the offences charged. The position under the
Sexual Offences Act 1956 section 37(2)
and Schedule 2 paragraphs 10(a) and (b) is that a prosecution for an offence of unlawful sexual intercourse may not be commenced more than 12 months after the offence charged.
6.
Until the decision of the House of Lords in
R v J
[2004] UKHL 42
it was the practice of prosecuting authorities, and a practice accepted in this Court, including in the Court of Appeal in
J
itself, to prosecute a charge of indecent assault, in circumstances where the facts consisted in reality of unlawful sexual intercourse but it was too late to prosecute the latter charge. In
J
the House of Lords held by a majority of four to one that this was not permissible.
7.
The issue in the present case, which has been argued by Mr Fuller for the appellant and Mr Mooney for the Crown, is whether it makes any difference to the application of
J
that the prosecuting authorities were able to put on the indictment as a primary charge one of rape, a charge of which the jury in fact acquitted.
8.
Mr Fuller submits it makes no difference at all. The presence of a charge of rape, however justified it may have appeared to include it on the indictment and to prosecute it to trial, cannot justify the alternative count of indecent assault in circumstances where the essence of the facts relied upon for indecent assault was unlawful sexual intercourse in respect of which a prosecution could not be commenced because the 12 month time limit had expired.
9.
Mr Mooney for the Crown submits that it makes all the difference and advances before us an argument that
J
addresses what he described as situations of oppressive prosecution. It does not address situations where there is a sufficiently plausible charge of rape to justify that being pursued and where the charge of indecent assault is, as he puts it, effectively parasitic to and not independent of the charge of rape. He seeks to raise the possibility of defendants, if this appeal succeeds, defending rape charges by asserting with impunity grooming and unlawful sexual intercourse where charges are, perhaps because of the grooming, only brought after the 12 month time limit for a charge of unlawful sexual intercourse.
10.
Those arguments do not appear to us to bear on the central issue in this case. Happily Parliament has now abolished the time limit of 12 months so that the present issue is only of significance in respect of offences -- and we acknowledge that there may be many coming to light, or still to come to light -- committed prior to, we understand, April 2003. Of course in a number of cases there may be alternative sexual conduct which could justify a charge as there was in the present case, although not of the same seriousness as the conduct the subject of the jury's conviction on count 1/4.
11.
As we say the real issue before us is not that which counsel for the Crown identifies. It is whether
J
governs this case. The reasoning in
J
is based on statutory construction. It is not based on any conception that the prosecution had acted deviously, or in an underhand way, or had been guilty of manipulative conduct: see paragraph 14 of Lord Bingham's speech. As a matter of construction we are faced with the straightforward situation that, under the legislation in force at the relevant time for the purposes of the present appeal, the prosecution for unlawful sexual intercourse could not be commenced. The House of Lords has held that that means that it was also impermissible to commence a prosecution for indecent assault.
12.
We have before us an indictment which charges, firstly, as count 1/3 rape and, secondly, as count 1/4 and as an alternative, indecent assault. On the face of it, that is clearly a prosecution commenced in respect of indecent assault more than 12 months after the offence charged was committed.
13.
It seems to us that it is no distinction at all from
J
that the indictment contained a count of rape. Had it been clear that there was sexual intercourse with consent, or that there was sexual intercourse in respect of which lack of consent could not be proved, then under
J
there could have been no question of simply charging this appellant with indecent assault after 12 months. The jury's verdict here establishes the position as if that had all long been the case. Lack of consent could not be proved, at the very lowest. The alternative count, 1/4, was only added to cover the possibility that consent existed, or that lack of consent could not be proved. Its legitimacy or otherwise should, in our view, be viewed as if it stood alone. The Crown can be in no better position, and the defendant in no worse, merely because of an addition on the indictment of a charge of rape on which the jury acquitted. The legitimacy or otherwise of including a conviction for indecent assault cannot depend upon whether the prosecuting authorities included a primary and more serious charge of rape, or had good grounds for doing so on the indictment.
14.
In those circumstances, this appeal in respect of count 1/4 must succeed. It follows that the sentence passed on that count of 16 months' imprisonment must be quashed and the total sentence imposed by the judge, which was 20 months' imprisonment, must be substituted with a sentence of 12 months' imprisonment.
15.
LORD JUSTICE MANCE: What about the ancillary orders? He was disqualified from working with children indefinitely.
16.
MR MOONEY: My Lord, my learned friend and I have discussed the ancillary orders, none of which are affected by your Lordship's finding.
17.
LORD JUSTICE MANCE: Thank you very much indeed. | ```yaml
citation: '[2005] EWCA Crim 1907'
date: '2005-07-11'
judges:
- LORD JUSTICE MANCE
- MR JUSTICE ELIAS
- 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}
======
| No:
200700145/A5
Neutral Citation Number:
[2007] EWCA Crim 2125
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Monday, 13th August 2007
B e f o r e
:
LORD JUSTICE LATHAM
(Vice President of the Court of Appeal Criminal Division)
MR JUSTICE GRIGSON
MR JUSTICE HENRIQUES
R E G I N A
v
LAURA MADELINE MANDERS
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR B MAGUIRE
appeared on behalf of the
Applicant
J U D G M E N T
1.
MR JUSTICE HENRIQUES: On 18th August 2006 in the Crown Court at Southwark, this applicant, aged 32, changed her plea to guilty to conspiring to supply a class C drug, namely cannabis. On 22nd November 2006, following a trial of her co-accused, she was sentenced to a term of four years' imprisonment. The co-accused Forrester had pleaded guilty and was sentenced to nine years' imprisonment, Hobbs changed his plea to guilty and was sentenced to six years' imprisonment, Calder, Ciccone and Gaines were acquitted, Hart had died and McConkey awaited a retrial.
2.
The facts in short form were these. On 27th November 2005 at Felixstowe, Customs officers intercepted two containers shipped from Mexico with wardrobes on board with some 4.5 tonnes of cannabis concealed within them with a street value of approximately £3 million. The cannabis was removed and replaced with bricks and a covert listening device was placed in one of the wardrobes. The consignment was permitted to complete its journey to a furniture shop in Hounslow run by the co-accused Hobbs.
3.
The co-accused Forrester was said to be the organiser of the conspiracy. He had created a bogus front company by the name of London City Beds. The applicant's role was said to be to create paperwork for London City Beds and to liaise with the importation company, Dolphin Movers.
4.
When interviewed, the applicant said that Forrester was an old friend. She believed that London City Beds was legitimate. Forrester had mentioned importing furniture. She denied ever speaking to Dolphin Movers.
5.
Her basis of plea, significantly, was made on the basis that she knew cannabis was to be imported, but did not know the volume. Her role was limited to communication with the shipping company in the United Kingdom. Her only link to the conspirators was through Forrester. She agreed to participate, having been the subject of a veiled threat by Forrester to which we will return. Whilst her plea of guilty was not at the earliest opportunity, it is significant, it is submitted, that other conspirators were acquitted. She was dealt with as a person of good character, her two previous convictions for dishonesty being in 1991 and 1995.
6.
The pre-sentence report was written in the mistaken belief that the applicant had no previous convictions and assessed the likelihood of re-offending as low and assessed her as suitable for a community order. It is noteworthy that the applicant asserted to the probation officer that her involvement in the conspiracy was circumstantial and unintentional.
7.
The applicant is a youth worker, having worked for the probation service until 2003. She is the mother of two children, aged 12 and four at the time of the report. She supported the children herself, living in council accommodation.
8.
She explained her involvement in this way. In early 2006 she provided secretarial assistance wholly innocently to Forrester, who, at the time, was establishing London City Beds. In May 2006 she was involved in a road traffic accident which affected her mobility and prevented her from leaving home. She accordingly assisted Forrester in his new business, including communicating with Dolphin Movers. At that stage all that she did was innocent.
9.
It was not until July 2006 that the applicant noted unusual behaviour on Forrester's part, including a reluctance to discuss the furniture business. The applicant informed Forrester that she no longer wished to work for him. She suggested it was time that he employed staff. In response, Forrester said to her that he intended to import cannabis with the furniture shipment in order to "sweeten the deal". Mr Maguire, whose submissions to us today have been most helpful, laid emphasis on the fact that he referred to importing "some cannabis", the applicant having no idea that he intended to import cannabis of the volume in fact recovered. He told her that as she had already assisted that she was already involved. The veiled threat he made was that serious individuals were involved and it would not now be possible for her to withdraw.
10.
Accordingly, on her behalf, Mr Maguire advances the following mitigation. Firstly, the plea of guilty coupled with the basis of plea. Secondly, the limited role of the applicant, limited to communicating with the shipping company, with no links to her co-accused other than Forrester. Thirdly, the late entry into the conspiracy effected by veiled threats. Fourthly, the absence of any proven gain or benefit. Fifthly, her effective good character. Sixthly, there are a number of character references before us which we have read. Seventhly, she is the mother and sole supporter of two children. Finally, we have been referred to some four reports from prison establishments which can best be summarised in one sentence written by the residential governor, Mr Charalambous, in which he said:
"Overall I would say that Ms Manders is exceptionally well behaved and from a custodial point of view has done all that is asked of her."
Another sentence relied upon by Mr Maguire is this:
"... Miss Manders would benefit from a speedier resettlement into the community but her progress and rehabilitation is somewhat hindered by her sentence length."
11.
On first consideration it may well be thought that a sentence of four years' imprisonment reflected the lesser role played by Miss Manders in this conspiracy. However, specific complaint has been made that the judge failed to refer to the basis of plea and in concluding that she was playing a positive role for her own gain, and stating in terms:
"... I am satisfied that you realised what you were doing in assisting Forrester. You were playing your positive role for your own gain in getting involved in the way in which you did."
the judge did, in fact, wholly ignore the basis of plea and advanced no clear reason for doing so.
12.
Whilst the applicant must have appreciated that a significant importation was contemplated, we accept, having regard to her role, that she may well have been entirely in the dark as to the volume of cannabis that was to be imported, and, indeed, we see no clear basis, certainly none explained by the sentencing judge, for wholly rejecting the essential basis of the submissions advanced on the applicant's behalf.
13.
Accordingly, we are minded to grant this application for leave to appeal. We are minded to substitute for the four year term of imprisonment a term of three years' imprisonment. We do so on the usual basis. In the event of counsel wishing to take the matter further, there are 14 days in which he may do so, but, subject to that, we do grant leave and indicate we are minded to substitute a term of three years' imprisonment.
14.
MR MAGUIRE: My Lord, because of Miss Manders' behaviour whilst in custody she is on fairly regular release as is referred to in the letters put before the court. She attends court today and sits at the back of the court. I wonder if we can proceed to deal with that now.
15.
THE VICE PRESIDENT: If you take instructions from her, and then on her behalf indicate that she is prepared to accept our decision as being the hearing of the appeal, we will deal with it on that basis.
16.
MR MAGUIRE: I don't need to take instructions from her. I can say she does.
17.
THE VICE PRESIDENT: Right. Then the order will be as indicated by my Lord. I think, Mr Maguire, you are pro bono at the moment.
18.
MR MAGUIRE: My Lord, I wonder if I can have a representation order.
19.
THE VICE PRESIDENT: You can have a representation order for today.
20.
MR MAGUIRE: Thank you very much. | ```yaml
citation: '[2007] EWCA Crim 2125'
date: '2007-08-13'
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}
======
| No: 2008/02839/A6 and 2008/02845/A6
Neutral Citation Number:
[2008] EWCA Crim 2027
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Thursday, 31st July 2008
B E F O R E:
SIR IGOR JUDGE
(
President of the Queen's Bench Division
)
MR JUSTICE SIMON
MR JUSTICE AKENHEAD
- - - - - - - - - - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL'S REFERENCE NO 27 and 28 OF 2008
(
CHRISTOPHER MARCUS LEWIS AND MARVIN JAMES WALKER
)
- - - - - - - - - - - - - - -
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 CWD Aylett QC
appeared on behalf of the
Attorney-General
Miss S Buckingham
appeared on behalf of the
Offender Lewis
Mr IM Metcalfe
appeared on behalf of the
Offender Walker
- - - - - - - - - - - - - - -
J U D G M E N T
1.
SIR IGOR JUDGE, P: This is a reference under
section 36 of the Criminal Justice Act 1988
by Her Majesty's Attorney-General of sentences on two offenders, Christopher Lewis and Marvin Walker. Lewis is 23 years old. He has convictions for assault occasioning actual bodily harm, possessing an offensive weapon (a lock knife) and criminal damage. The second offender is Marvin Walker. He is 21 years old. He has two previous convictions for battery and two for handling stolen property. None of those convictions involved anything like the criminality of the offence which we must now address.
2.
On 2nd April 2008 the two offenders pleaded guilty to the manslaughter of Shane Owoo. Shortly afterwards, on 25th April, before Coulson J sitting at the Birmingham Crown Court, they were sentenced to 5½ years' imprisonment.
3.
The facts of the case are briefly summarised. Shane Owoo was born in February 1991. At the date of his death, on 29th September 2007, he was 16½ years old.
4.
The events with which we are concerned occurred in a very short space of time. In the early hours of Saturday, 29th September 2007, Shane stole a mountain bicycle belonging to Lewis' brother and he was seen riding that bicycle by Walker. According to one of Shane's friends and another witness, Walker challenged Shane, accusing him of having taken his brethren's bike. Shane claimed that he had bought the bicycle. Shane's friend thought that Walker said, "If I find out it's my friend's bike, I'm gonna kill you." The witness thought that Walker had said something like that Shane should, "Look out tomorrow", a phrase which Walker subsequently accepted he had used.
5.
So what this case is about is two men — indeed, we will see in a moment more than two men — deciding that one young man should be punished and this happened on the same day, at about 1 o'clock lunchtime. A number of witnesses saw Shane being assaulted in Bilston. They saw him attacked by Lewis, by Walker and by a third man, Tobias Davies. Shane was kneed in the face. He was slapped by both offenders. He was pushed over a wall. He was punched in the ribs, both by Walker and indeed by Davies. He was thrown by the offenders into a patch of nettles. By the end of this attack Shane was crying, his face was bleeding and he was limping.
6.
In our judgment, on its own was a serious assault: three men in their early twenties, bullying and treating a boy of 16 with completely unnecessary and inappropriate violence. That was bad enough, but that at least should have been the end of it. Instead, as the judge observed, the violence developed in a horrifying way. Instead of letting the crying boy make his humiliated way home, the attackers then crowded round him and prevented him from getting away. Stumbling along, he was led towards a place called Lunt Pool, some 300 yards away from the scene of the violence. This is a natural pool. The water is deep when you get away from steep-sided banks.
7.
A witness heard Lewis tell Shane that he was going to take him for a swim, and then dragged him out and beat him. When they reached the pool Shane was ordered to jump into the water, and told by Lewis that if he did not do as he was told he would be hit. At the same time, Walker was telling him to dive in. There was at least one other person, and there were possibly more with Lewis and Walker at this time.
8.
It was clear that Shane was a very frightened boy, but nonetheless he jumped in, fully clothed. He stood at the edge of the pond with the water up to his chest. Lewis threatened him with a stick, and said something to the effect, "You get out and you're gonna have this." From the side of the pool, Walker kicked gravel towards him, "You've got to swim; you ain't getting out."
9.
Shane was then ordered to swim to the middle of the pond. He set off, but he was not a strong swimmer and he started to struggle. He was ordered to swim the backstroke or else he would be beaten up. He eventually made it to the edge of the pond, but as he approached it he was driven away with sticks. Walker threw gravel at him. More important, neither of the offenders did anything to help him; instead they laughed at him as he floundered in the water.
10.
A number of witnesses realised that Shane was struggling and they called out to the offenders telling them so, but the offenders laughed and said that Shane was pretending.
11.
He was not. Unhappily, having been driven back to the deeper water, he started to drown. He went under and came up again, and then, exhausted after calling for help, he went under for the last time and he was not seen again.
12.
One of those at the scene — it is sad to have to say, the youngest of those at the scene — a child called Barry Greatrex, who is to be commended for his efforts, then jumped into the water and he tried to swim out towards Shane. But he was not a strong enough swimmer, and, unable to see Shane in the murky water, he turned back.
13.
With that, and in fairness we should record, Lewis also dived in. He looked for Shane below the water, but he was unable to find him and eventually he returned to the bank.
14.
An ambulance was called. Police officers came to the scene. Shane could not be found. The two offenders ran away, although, again in fairness, Lewis returned to the pond later.
15.
When Shane's body was recovered, at post-mortem it was established that he had indeed drowned. There were two areas of deep bruising to the rear and right side of the head. There were other bruises, not of major significance, to his face, back and lower limbs.
16.
Lewis and the man Davies were arrested on 30th September 2007 and Walker on 10th October 2007.
17.
When interviewed Lewis admitted that he had been angry with Shane over the theft of his brother's bicycle. He agreed that he had struck him several times. He said they had gone to the pond in order to look for the bicycle, and when they had arrived there Shane had jumped in of his own accord. According to this interview Lewis told him to get out, but Shane had started to drown and Lewis said that he jumped in to try and save him. Thereafter he had no comment to make to the questions that were put to him.
18.
Walker's interview was no more credible. He said that he had been on the fringe of the crowd following Lewis and Shane to the lake. He had seen Shane jump in. He realised that Shane was in trouble, but he had been unable to help because he could not swim. He denied having done anything such as throwing gravel at Shane or using a stick to prevent him getting out of the pond.
19.
We have seen the victim impact statement made by Shane's aunt. We shall not record its contents here. It does, however, explain how difficult it is for her and her family to come to terms with the fact of Shane's death, and the particular poignancy of knowing how and in what circumstances he died.
20.
We have also seen a statement from the offender Lewis' mother. That too makes sad reading. Again, we shall not read out the statement in court.
21.
When the defendants were arraigned in January 2008 they pleaded not guilty. In due course as part of the prosecution's intended case against them, notice was served of an intention to lead evidence of bad character against the defendants. The prosecution were in possession of material that showed that less than a fortnight before the fatal incident, the same three offenders had forced another man, a man called Foster, into Lunt Pool as a punishment for owing £20 to Walker for some drugs. Foster had been forced to dive into the water and the offenders had refused to let him come out, until eventually, sobbing, they let him make his escape. This incident was recorded on Lewis' mobile telephone.
22.
On 10th March Walker's solicitors wrote indicating that he intended to plead guilty to manslaughter. The case was listed for trial on 2nd April and on that day Lewis indicated that he would plead guilty.
23.
On behalf of both offenders, written bases of plea were submitted. The areas of dispute were the subject of submissions between the parties. The judge came to the view that he could deal with these areas of dispute in the context of his sentencing remarks, and indeed the various matters which were in dispute were referred to and embodied in his judgment.
24.
Perhaps we should just record that when opening the case to the judge, the prosecution did not refer to the incident involving Mr Foster. However counsel for Lewis relied on it in support of a submission, which is in effect renewed before us today, that perhaps the offenders had been lulled into a false sense of security by the fact that Foster had emerged from the water apparently unharmed.
25.
The sentencing remarks by the trial judge encapsulate the crucial features of this case. He was satisfied that the two offenders did not pose a significant risk of harm to the public, in the sense that might call into operation the then current statutory arrangements in relation to imprisonment for public protection. But he recorded that this was:
"... an horrific crime, with a large number of aggravating features. This was a long and terrifying ordeal, deliberately inflicted on Shane Owoo. He was assaulted, frog marched for what appears to be a punishment swim, made to jump into the water and, worst of all, not let out, even when he was in such obvious difficulties. By your own admission you were closely involved in all of those events. There was the worst kind of bullying and assault before the events at the pool, intimidation and humiliation at the pool, and, in my judgment, extraordinarily callous behaviour when he was in the pool, clearly in difficulties, and you would not let him out. It was plainly foreseeable that Shane Owoo might drown in consequence."
26.
On behalf of Her Majesty's Attorney-General it is submitted that the sentence eventually imposed by the judge, taking a starting point of 7 years and making due allowance for the guilty pleas, tendered as they were not at the earliest opportunity, was unduly lenient. Our attention was drawn to three authorities:
Attorney-General's Reference Nos 19, 20 and 21 of 2001
[2002] 1 Cr App R(S) 33
;
Attorney-General's Reference Nos 108 and 109 of 2002
[2003] 2 Cr App R(S) 102; and
R v Walters
[2005] 1 Cr App R(S) 100
, and our attention has been drawn by counsel on behalf of Lewis to a different decision of the court:
R v P
(unreported) 4th July 2005,
[2005] EWCA Crim 1960
.
27.
We mean no discourtesy to the submissions, in particular to the attention we were asked to focus on these authorities, to record that we do not find any of them to have been of particular assistance to us.
28.
The submission on behalf of the offenders is that their conduct merited punishment, but that the actual sentence imposed by the judge was not unduly lenient. It was, indeed, suggested that the sentence was a proper reflection of the offenders' criminality.
29.
We can express our conclusions in brief terms in what on any view is a tragic case. The judge carefully identified the relevant aggravating features of the case. None of them was omitted from his consideration. However, in our judgment in taking a starting point of 7 years for this case and the features of it which he identified, he took what was an unduly low starting point.
30.
The death of Shane was not intended and the offenders expected that eventually he would emerge from the water. They were not charged with, let alone convicted of, murder. But on any view, this was manslaughter consequent on a combination of persistent violent, bullying conduct and total recklessness. This was not a form of horseplay or approaching anything like the beginning of what might be described as horseplay. In our judgment, a starting point of less than 10 years would have been inappropriate, to reflect both the elements of punishment and deterrence against this kind of bullying behaviour, with its unwanted and sometimes unanticipated disastrous consequences.
31.
In favour of the offenders, they did plead guilty. It was accepted that the offenders were genuinely sorry and remorseful for what had happened, and in particular that both had some insight into the suffering they had inflicted on the young man Shane's family. We also take account that in the case of Lewis in the end he did repent and he did dive in, albeit much too late, to try and see whether he could save Shane. That is to his credit.
32.
We do not think it fair or just to distinguish between the offenders in this case. We have come to the conclusion that the sentence on both of them imposed by Coulson J should be quashed and that a sentence of 7½ years' imprisonment should be substituted.
33.
To that extent, this application by Her Majesty's Attorney-General succeeds.
34.
Thank you very much, Mr Aylett. Thank you Miss Buckingham, Mr Metcalfe.
____________________________ | ```yaml
citation: '[2008] EWCA Crim 2027'
date: '2008-07-31'
judges:
- SIR IGOR JUDGE
- MR JUSTICE SIMON
- MR JUSTICE AKENHEAD
``` |
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 2822
Case No: 20121028C4, 20125010C4, 20120834C4, 20125010C4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SHEFFIELD
MR JUSTICE McCOMBE
T20117153,T20117190
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
21/12/2012
Before :
LORD JUSTICE HUGHES
MR JUSTICE RAMSEY
and
MR JUSTICE IRWIN
- - - - - - - - - - - - - - - - - - - - -
Between :
Lee Griffiths, Luke Griffiths, Thomas Griffiths and Mark Jackson
Appellants
- and -
The Queen
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Peter Moulson Q.C.
for the
Appellant
Lee Griffiths
William Harbage Q.C. and Andrew Bailey
for the
Appellant Luke Griffiths
Tim Barnes Q.C.
for the
Appellant Thomas Griffiths
Timothy Spencer Q.C. and A Semple
(instructed by
Messrs Haywood, Lunn & Allen
) for the
Appellant Mark Jackson
Nicholas Lumley QC
(instructed by
CPS
) for the
Respondent
Hearing dates: 28th November 2012
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Hughes:
1.
These defendants were all convicted, after trial, of murder. Their appeals challenge the minimum term which the judge attached to the mandatory life sentence which each received.
2.
We take the facts essentially from the concise summary given by the judge in the course of conspicuously careful sentencing remarks.
3.
The defendant Lee Griffiths is the father of the defendants Thomas and Luke Griffiths and the stepfather of Mark Jackson. Lee and others were concerned in a commercial operation for the supply of drugs, chiefly heroin. The operation was centred on a bungalow in Grimsby. It bought, and sold on, about half a kilogram of heroin every seven to ten days. The purchase price was £10,000 or more each time. Retail sales were made both from the bungalow and via a number of street sellers. Lee was the mastermind and leader of this team of drug dealers. His son Thomas was a trusted secondary participant. One of the minions used as a driver and a street seller was the deceased, Adam Vincent. Vincent was himself an addict and in very bad health as a result. He was in hospital for two weeks at the end of January 2011 but discharged himself against advice and returned, despite a parlous state of health, to the trade. Lee Griffiths became convinced in February 2011 that Vincent had betrayed the gang, either by stealing some thousands of pounds, or by doctoring the drugs, or by informing on the others. That conviction of Lee’s was connected in his mind to the arrest of Lee, Thomas and a driver (Frow) on 11 February, when they were stopped in a car containing drugs. It was also fuelled by Lee’s own use of drugs, including crack cocaine. In consequence of Lee’s belief, arrangements were made by the four defendants to apprehend, beat and interrogate Vincent. Serious violence was inflicted on him over a period of between one week and two, culminating in his death on Monday 28
th
February in the hands of the gang, still being tortured. He was freed from time to time, and seen to be bearing injuries. This period was not the first time he had been injured; when in hospital in January he was seen to have air pellets lodged in his chest and neck. Within the period leading up to his death, one occasion was spoken of by a gang member who gave Queen’s evidence: Lee had interrogated Vincent with a knife to his neck, Thomas had punched him in the face, and Luke had kicked him hard to his side. Vincent was in such fear that he lost control of his bowels. By the time he died, Vincent had damage to his spleen and multiple broken ribs, probably attributable to stamping, and had been struck at least three times to the head by some weapon such as an axe, a hatchet or a golf club; these last blows were the immediate cause of death. Having killed him, the defendants dismembered his body crudely but effectively with a hacksaw, dividing it into six parts. Those parts were then disposed of in separate watercourses during the night of 2/3 March, and using a vehicle which had been acquired specifically for the purpose. Some of the clothing of the deceased, and some pieces of bone, were burned at a remote location in the early morning of 3 March, and other potentially incriminating material was burned in a bonfire at the bungalow. Friends of the defendants who had some knowledge of Vincent being in the hands of the gang were told peremptorily to keep their silence.
4.
All four defendants were convicted by the jury of murder. All were also convicted of conspiracy to pervert the course of justice by dismembering and disposing of the body. Lee and Thomas were convicted of conspiracy to supply class A drugs. Jackson was acquitted of the drugs offence, and the jury failed to agree as to Luke on that count, and was discharged from reaching a verdict.
5.
Lee Griffiths was 42 at the time of the murder. He had some twenty two previous convictions, chiefly for dishonesty and vehicle offences. There was no prior conviction for violence except one public order offence, although he was found in possession of pepper spray in 1999.
6.
Luke, his younger son, was 19 at the time of the murder. He had no previous conviction or caution.
7.
Thomas was 21 at the time of the murder. He had no previous conviction but had sustained a reprimand for assault in 2005. Reports showed that his behaviour had been troublesome from his childhood, during which he had also been bullied. He had a low IQ, assessed as mild learning difficulties and some signs of paranoid, aggressive and anti-social personality disorder.
8.
Mark Jackson was 26 at the time of the murder. He had previous convictions since the age of 16, which included disorder and violence. He had served sentences of 6 months for affray, and of 18 months (twice) for assault occasioning actual bodily harm and wounding. There were also offences of dishonesty.
9.
The judge approached the fixing of minimum terms with considerable care. He applied himself directly to sections 269 and 270 and to Schedule 21 of the
Criminal Justice Act 2003
. He correctly reminded himself that the Schedule was not to be applied mechanically but that sentences reflecting the true criminality involved were to be passed. He was, however, required by section 270 to state which of the starting points set out in Schedule 21 he adopted, and did so as 30 years.
10.
The Crown had submitted that this case fell directly within paragraph 5(2)(c) of the Schedule, namely that it was murder done for gain. It contended that the murder was done in aid of preserving the profitable illegal trade in drugs. It was not contended that any other of the examples of particularly serious conduct contained in paragraph 5(2) applied. In particular, this was not said to be a murder involving sadistic conduct; the violence, though sustained and considerable, had not been done for pleasure.
11.
The judge did not hold this to be within the terms of paragraph 5(2)(c), ie a murder done for gain. He reminded himself, correctly, that the cases itemised in paragraph 5(2) are simply examples of what the court will normally hold to be murders of which the seriousness is “particularly high”, and that the list is in no sense exhaustive. What he then said was this:
“In my judgment a murder in perceived protection and enforcement of the interests of a commercial drugs supply business, even if not precisely a killing for gain, is very closely analogous to it. There can be no sensible distinction in seriousness, in my judgment, between such a murder and a murder committed in the course of a robbery of burglary, two of the specific examples given in the statute…
….the fatal attack was motivated by the perceived need to extract retribution on Mr Vincent for having damaged the gang’s interest and to enforce a primitive discipline within the gang.”
12.
The judge then identified aggravating factors in:
i)
the vulnerability of the victim;
ii)
the physical suffering inflicted on him prior to his death; and
iii)
the dismemberment and disposal of the body.
13.
The judge also identified mitigating factors. In the case of the younger defendants, their age was such. For all defendants, he expressly found that he was prepared to proceed on the basis that there had not been an intention to kill, but rather an intention to do grievous harm, and death had resulted. For much the same reason he rejected significant premeditation as an additional aggravating factor.
14.
The judge held that the synthesis of those factors took the sentence up from the starting point of 30 years to 35. In so concluding, he made no further addition for the count of conspiracy to pervert the course of justice, plainly because that had been treated as a factor aggravating the sentence already and to do so would be to count it twice. He observed that, had it stood alone, it would have justified a sentence of about 8 years (thus the equivalent of a minimum term of 4 years). Nor did he add to the sentences, in the cases of Lee or Thomas, for the count of conspiracy to supply drugs, taking the view that it was already reflected in the long minimum terms which were arrived at after considering the background of drug dealing. He did observe that if it had stood alone that count would have called for sentences of not less than 12 years for Lee and 9 years for Thomas.
15.
We entirely agree with the judge’s self direction that Schedule 21 cannot be applied mechanically, and that paragraph 5(2) is in no sense an exhaustive list of the kinds of case which a court may determine to be of particularly high seriousness. This court has said so on too many occasions to list. A mechanical application of the Schedule is apt to create absurd anomalies, such as that corrected in
R v Height & Anderson
[2008] EWCA Crim 2500
; [2009] 1 Cr App R(S) 676, where a simplistic application of the schedule would have resulted in the paid contract killer being subject to a starting point double that of the employer who incited and engaged him and for whose purposes the killing was carried out. Nor can the Schedule be applied in an arithmetical manner, by adding or subtracting years attributable to separate features of the case: that was demonstrated to be unworkable in
R v Peters and others
[2005] EWCA Crim 605
; [2005 2 Cr App R (S) 101 at 627; see paragraph [8]. As was observed in
R v Jones
[2005] EWCA Crim 3414
; [2006] 2 CR App R(S) 18 at 117, the very large gaps between the starting points identified in the Schedule present a sentencer with considerable difficulties in his quest to match the penalty to the infinitely variable circumstances of crime. It is nonetheless clear that it was not Parliament’s intention that the Schedule should be applied mechanically by fitting each case into the nearest available starting point and making only minor adjustments to it. That is clear from paragraph 9 of the Schedule, which says:
“Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point)….”
16.
The principal challenge mounted here to the judge’s sentence involves the contention that this was not a murder for gain. However, as we have pointed out, the judge did not say that it was, and it was quite unnecessary to force the case into the straitjacket of paragraph 5(2)(c) in order to arrive at the conclusion that the right starting point was 30 years. What the judge did conclude was that this was a murder committed in pursuit of a large-scale and very serious criminal enterprise and for the purposes of enforcement of loyalty or of primitive discipline. The question raised by this appeal is this: where on the scale of murders does this situation lie? Was the judge entitled to treat it as of a seriousness comparable to the examples listed in paragraph 5(2) or was he not?
17.
Mr Barnes QC, for Thomas Griffiths, submitted to us that because paragraph 5 is concerned with murders of especial gravity it would be wrong for the court to go outside its express terms and, in effect, extend the concept of a murder done for gain. That is tantamount to a submission that the examples given in the paragraph are exhaustive, which is an argument which Mr Barnes correctly disclaimed, and we reject it. Nor can we accept his argument that a murder can only be done for gain if the gain or potential gain is identified. The point does not arise because the judge did not treat this as murder for gain, but in any event, although no doubt it will often be possible to identify the gain, there can clearly be cases where gain is the purpose but the mechanism and amount are obscure. Mr Barnes further submitted that the judge’s findings in this case amounted to no more than a motive of revenge for supposed misbehaviour on the part of the deceased, and that that does not bring a case within paragraph 5(2). We agree that revenge is a frequent motive for murder and that by itself it will not ordinarily make the offence of particularly high seriousness if otherwise it would not be. But the converse is also true. If the offence is of particularly high seriousness properly comparable with the examples set out in paragraph 5(2), the fact that revenge is a component will not save it from the heightened starting point. This was not, on the judge’s findings, comparable to the case identified by Mr Barnes of revenge against a cheating spouse. This was torture, and eventually murder, in the furtherance of a serious criminal enterprise, to keep the enterprise intact and to discipline its members. There was ample evidence of threats to others as well as to the deceased. The fact that prolonged interrogation was going on is a further indication of this purpose.
18.
We conclude that the judge was entitled to hold that this murder, bearing these characteristics, was comparable with the examples given in paragraph 5(2). Some of those might, in particular circumstances, be less serious, as for example the owner of a lawfully held shotgun who, in the course of a drunken argument with a friend, uses the gun on him. We are not to be taken as holding that all murders committed in the course of criminal enterprises will be of particularly high seriousness – it will depend on the scale of the enterprise and the circumstances of the killing, and it is clear that some will not be at all suitable for a 30 year starting point. But the combination here of the pursuit of large-scale drug dealing, with enforcement of criminal discipline, and with sustained torture sufficiently justify the conclusion arrived at by the judge. The incidence of potential gain, in the sense that the drugs business was no doubt very profitable, is not the determining factor. The position could easily be the same if a similar killing were carried out to enforce discipline in one’s followers in a different form of criminal enterprise which was not principally acquisitive, such as gang warfare or the sexual exploitation of minors.
19.
After thought, the judge adopted the same starting point for each defendant. In our view he was right, on the facts of this case, to do so. He did not, in doing so, forget that the defendants Luke Griffiths and Mark Jackson had not been convicted of the drug conspiracy, a matter which is of some significance and to which we will return. Since all the defendants were equally involved in the killing, and since the killing was very plainly for the purpose of preserving the criminal enterprise intact and of disciplining its minor members, all were equally affected by its characteristics. We are unable to agree with the submission, made for Luke by Mr Harbage QC, that the proper inference is that he was acting from no more purpose than to obey a dominant father. We do not doubt that father was dominant, nor that Luke was influenced greatly by him, and this is of relevance later in the exercise. But he very clearly knew what the background and purpose of the torture and murder was and he was fully involved in it.
20.
Limited challenge has been mounted to the judge’s identification of aggravating factors. We agree that the victim was vulnerable in the sense that he was ill and dependent on drugs. We also agree with the submissions made on behalf of the defendants that these conditions were self inflicted. Perhaps more significantly, we are quite satisfied that the subservience of the deceased, which was part of his vulnerability, is already factored into the sentencing process because it was part of the enforcement/punishment characteristic of the offence.
21.
We have no doubt that we should reject the contention that the sustained ill-treatment of the deceased was irrelevant as mere historical background or separate but similar prior conduct. It may be that in other cases prior similar misconduct would not be sufficiently connected to the killing to be relevant to the adoption of the starting point, but in this case there was the clearest evidence of a single course of conduct involving repeated “interrogation” and serious violence, culminating in injuries to which the deceased succumbed. It was all part of the murder. However, as with the vulnerability of the victim, we take the view that this factor has already been part of the calculation of the correct starting point and ought not to result in a further increase beyond it.
22.
No one has contended that the callous dismemberment and disposal of the body do not aggravate the offence and justify an increase in the minimum term. We agree.
23.
The principal mitigating or reducing factor in this case, affecting all defendants, is the absence of an intention to kill. We agree that in a case of sustained violence in pursuit of an intention to cause grievous harm, this is of less force than it might be in cases of sudden spontaneous attack, but it is still necessary to recognise the difference between this case and a similar one of gang enforcement in which there was a deliberate execution. Such cases are, unhappily, by no means unknown, and we are sure that they are yet more serious than the present case.
24.
The objective in applying Schedule 21 is to do substantial justice by fitting the punishment, so far as can be done, to the individual features of the case, whilst remaining loyal to the general framework of the schedule. We have reached the clear conclusion that in this case the aggravating factor constituted by the disposal of the body and the mitigating factor of the absence of intended killing in broad terms balance each other. The judge, having said that he arrived at 35 years, imposed a minimum term of 32 years on Lee Griffiths. That meant that he added more than he subtracted. We are persuaded that in his extremely careful sentencing the judge somewhat undervalued the force of the absence of intent, and to the extent that he added for the vulnerability of the victim and/or the sustained torture did not entirely eliminate an element of double counting.
25.
Lee was one of two defendants convicted of the substantial drugs conspiracy. We have no doubt that the judge was right to say that in his case the sentence for that, had it stood alone, would not have been less than 12 years. In point of fact, like the judge, we think it should have been longer and we have no doubt that the two cases cited to him involving sentences of about 12 years after trial were ones of lesser scale than the present; neither involved as much heroin as this one. The drugs alone would have called for a sentence of about 14 years, or the equivalent of a minimum term of 7. We do not agree that the drug dealing has already been factored into the sentence; what has been factored in is the fact that the killing was in pursuit of the criminal enterprise and for the purpose of discipline and enforcement against minor operatives. The
antecedent drug
dealing remains. But we do agree that once one is dealing with a minimum term as long as 30 years, the equivalent of a determinate sentence of 60 years, which no court would ever impose, the general principle of totality leads to the conclusion that it is not appropriate to add further to it for the drugs supply itself.
26.
Accordingly we arrive at 30, not at 35 years, and we remain there for Lee Griffiths, rather than the judge’s figure of 32.
27.
The remaining consideration concerns the relative positions of the several defendants. The judge made adjustments for the ages of the younger defendants and for the absence of any relevant previous conviction in the cases of both Luke and Thomas Griffiths. Having done so, he imposed minimum terms as follows: 29 years for Jackson, 27 year for Thomas Griffiths and 26 years for Luke Griffiths.
28.
It is important to stand back and view the sentences together. It is abundantly clear that Lee was the dominant member of this group and that the impetus for the treatment of the deceased came from him. All the other defendants were either his sons or his stepson; they were for that reason particularly under his influence. Moreover he was, on the judge’s finding, clearly at times irrationally dominant, probably in part because of the intake of crack cocaine. Further, the defendants Luke Griffiths and Jackson are entitled to say that, because they were not convicted of the drugs offence, there ought to be some recognition of that fact in the relative standing of their sentences to that of Lee. Thomas Griffiths cannot say this. Next, as the judge recognised, both Luke Griffiths and Thomas Griffiths have no relevant previous convictions. The same cannot be said of Mark Jackson, who has a significant history of violence. Lastly, there must, as the judge held, be adjustment in recognition of the ages of those two defendants, 19 and 21 respectively, especially in the case of Luke Griffiths,who was only 19. We agree that a sentence of a minimum term of 26 years on a man of 19 is a very severe sentence.
29.
Adjusting for these various factors and checking the outcome by standing back to view the overall picture, we conclude that the minimum terms ought to be as follows: for Jackson and for Thomas Griffiths, for the different reasons we have identified, 25 years, whilst for Luke the term should be 23 years.
30.
We have tested our conclusions by asking ourselves what would have been the outcome if the right starting point had been 15 years. In that event, the first adjustment would have had to be a considerable uplift for the fact that the offence was committed in aid of a major criminal enterprise and to enforce discipline within it. That would have led us to a term of about 25 years. There would then have had to be a significant adjustment upwards for the drugs offence itself in the cases of Lee Griffiths and Jackson, and there would have been a further upward adjustment in all cases for the dismemberment and disposal of the body. There would have been a reduction for the absence of intent to kill and the necessary adjustments to achieve a fair relative balance between the defendants. The result would not have been very different from the one at which we have arrived by the different route, and indeed would not have been even if, contrary to our view, the criminal enforcement aspect of the case only took the minimum term up to somewhere between 20 and 25 years. That this should be so is not surprising, still less unfair. As paragraph 9 of Schedule 21 makes clear, the eventual sentence may be of any length, whatever the starting point. Its length depends, in the end, on the overall circumstances of the case.
31.
For the foregoing reasons, these appeals against sentence are allowed to the limited extent that we substitute minimum terms as follows:
Lee Griffiths:
30 years
Luke Griffiths:
23 years
Thomas Griffiths:
25 years
Mark Jackson:
25 years. | ```yaml
citation: '[2012] EWCA Crim 2822'
date: '2012-12-21'
judges:
- LORD JUSTICE HUGHES
- 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:
[2013] EWCA Crim 98
No:
201202813/B2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 22 January 2013
B e f o r e
:
LORD JUSTICE ELIAS
MR JUSTICE FIELD
THE RECORDER OF CARLISLE
(His Honour Judge Batty QC)
(Sitting as a Judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
K.L.
- - - - - - - - - - - - - - - - - - - - -
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)
- - - - - - - - - - - - - - - - - - - - -
Miss A Summers
appeared on behalf of the
Appellant/Applicant
Mr C Howell
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
LORD JUSTICE ELIAS:
1.
On 16 April 2012, following a trial lasting five days before His Honour Judge Mayo, the appellant was convicted by unanimous verdicts of offences of rape (count 1), burglary (count 2) and battery (count 3). He was sentenced to a total of six and a half years which was made up of five and a half years on count 1, 12 months consecutive on the burglary (count 2) and one month concurrent on the battery. He was made also the subject of a restraining order under section 5 of the Protection from Harassment Act.
2.
He now appeals against conviction by leave of the single judge. He also applies for leave to appeal against sentence, the matter having been referred from the single judge to the Full Court.
3.
The circumstances were these. The complainant, SR, and the appellant had been in a relationship from about 1995. They had lived together at a house in [a location] for 14 years. They both ran successful businesses and had financial independence.
4.
There were problems in the relationship which began to appear at the end of 2010. In 2008 SR had taken on a business coach to help her with her business. This was an issue for the appellant. Although SR initially denied having a sexual relationship with the coach, during the course of the criminal proceedings she in fact admitted that she had had an affair with him for some six months or so until April 2011.
5.
On 4 December 2010 the appellant asked the complainant to move out. She agreed that she would but did not go immediately. It was accepted that they continued to have a sexual relationship; on SR's evidence it was until the end of January.
6.
On or about 15 or 16 March 2011 SR and the appellant returned home after an evening out at the local pub. There was an argument which culminated in the appellant pushing SR against the handle of a wardrobe door. That gave rise to count 3. The appellant denied that any such incident had occurred.
7.
The prosecution case was that this incident was the catalyst for SR moving out. Indeed, the next day she did that and effectively ended the relationship with the appellant. After she had moved out there were a number of text messages, some of them aggressive, sent to SR by the appellant.
8.
They continued on occasions to see each other. She suggested that the contact was more at the appellant's instigation than hers but there had been occasions when she had arranged to meet the appellant. She told the jury that she still loved him and still wanted to be friends with him.
9.
It was accepted that even after SR had left the appellant's home many of her belongings remained there and she retained a key to the house. She still had mail delivered there. They entertained friends there as a couple.
10.
On the morning of Saturday 30 April SR visited a friend at a house which was close to the appellant's. An arrangement was made whereby she would return to see the appellant at his home later that day. They spent the day in the garden sunbathing.
11.
There was an incident; however, during that day when SR took the appellant's phone and read some text messages between the appellant and the wife of her business coach with whom she had been having the affair. SR was distressed by this.
12.
She stayed at his house that night. She was settled on the kitchen floor but was later persuaded to go up to the bedroom by the appellant who promised to tell her more about what he knew of the coach's wife. The appellant denied this. He said they had both gone up to bed shortly after midnight.
13.
In the event, it was agreed that SR had undressed down to her underwear and had got into the bed with the appellant at some point that evening or in the early hours of the morning. He contended that there had been some cuddling in bed, which she denied, but she did accept that she and the appellant had slept in close proximity that night.
14.
The following morning SR said that the appellant had started to touch her arm, very quickly climbed on top of her, held her down, forced her legs open and raped her. She said she had confronted him about what he had done. She said, "You raped me," but there was no reaction from him other than, she said, his claim that it was his right to do what he did.
15.
The appellant's case was that the sex had been consensual. He denied that SR had said "no" or that she was crying at the time as she had alleged in her evidence. He accepted there had been mention by SR of the word "rape" shortly afterwards but he had not taken much notice of this.
16.
SR then made a complaint that morning that she had been raped. She told her sister and a little later she told some friends. She did not report the matter to the police. She said she felt she had put herself in the situation by agreeing to sleep in the same bed as the appellant.
17.
Following that incident, perhaps somewhat surprisingly, SR continued to have contact with the appellant. They met at a pub, had dinner together and went to a concert together. He went to her house on one occasion and assisted clearing out various items which had belonged to her recently deceased mother.
18.
The prosecution say that while they were planning to go out to dinner that night the appellant had taken a set of SR's house keys and he used that later to facilitate the burglary to her home.
19.
On Sunday 29 May the appellant met SR in a pub. He discovered that she was going to a concert with someone else. He was obviously very upset and made jealous by this. She described his behaviour towards her as erratic. She said he was "full in her face" and badgering her about who she was taking to the concert. He followed her out of the pub and she went and hid in her car and switched her phone off. He did in fact agree that he was put out and frustrated when she left and that he had gone into the car park to try and find her.
20.
Between 11 o'clock that evening and 4 o'clock on the Monday morning he sent a number of texts to SR's mobile phone some of which were of a threatening nature. For example, one of the messages was "[SR], I find it disappointing after 13 years you don't have a fucking clue what I'm capable of. ... Well I fear there is a lesson coming soon." Then there was a rather poorly mis-spelt text message which suggested that he was at Broughton, which was the place where SR lived.
21.
The appellant did not dispute that he had left these messages. He could not recall where he went that evening but denied that he had gone to SR's house.
22.
When SR returned to her house it was plain that items had been moved around. In fact subsequently the appellant's fingerprints were found on a Champagne bottle and a loaf of bread. It transpired later that certain items of clothes and a Blackberry and its charger had been stolen.
23.
SR reported the matter to the police. It was when she reported the burglary that she disclosed to the police about the rape.
24.
The appellant was arrested. Some of SR's underwear was found under his pillows but none of the items which had been stolen from SR's house. He denied that he had taken keys from SR's house. His case essentially was that these allegations had been manufactured by the appellant partly because he had disclosed the fact of her affair to the coach's wife.
25.
The indictment contained the counts of rape and burglary together. Counsel for the appellant, Miss Summers, contended before the judge that it was inappropriate for these counts to be joined. She referred to rule 14.2(3) of the Criminal Procedure Rules 2011. This provides:
"(3) An indictment may contain more than one count if all the offences charged --
(a) are founded on the same facts; or
(b) form or are a part of a series of offences of the same or a similar character."
26.
She contended that neither condition was met here. The burglary and rape were plainly not founded on the same facts, nor could it be said that they were part of a series of offences of the same or similar character: one was a sexual attack and the other was essentially an offence of dishonesty.
27.
The judge considered this matter. He recognised that it was an unusual indictment on its face but he considered that the behaviour of the appellant and the way that he had burgled the house were relevant to the question of how he had acted towards the complainant earlier on that month. In addition, it was the burglary that had triggered the complaint. He was satisfied that evidence of what had happened with regard to the burglary was relevant and admissible in relation to the rape count and that it would be curious if evidence about the burglary could be led before the jury without them being able to be sure that a burglary had taken place. The judge went on to add that he was going to dismiss the application for severance. That was, of course, a mistake. He was dismissing the application that there should not be a joinder. But he did, in any event, make it plain that he would have rejected an application for severance even if one had been made.
28.
Miss Summers submits before us that the judge was wrong. He should have separated the counts. She submits that it is not accurate to describe them as forming a part of a series of offences of the same or similar character. She conceded, however, that it was inevitable that the jury had to be told about the burglary in order to deal properly with the rape case.
29.
It seems to us that concession is rightly and inevitably made. Not only did it explain why the complainant had made the complaint when she did, but it also was relevant to her contention that here was a domineering and emotionally charged man who was harassing her and had made her life difficult. The rape was the first significant incident demonstrating that nature (although the assault had also done so) but the burglary did likewise. In addition, the appellant himself was saying that all this was manufactured and there was nothing wrong with the relationship. Plainly the jury would need to know about this incident.
30.
It is firmly established that where evidence in relation to one count would be admissible with relation to another, that is a classic case where it can be said that the two counts form part of a series of offences of a similar character. In the case of
Kray
[1970] 1 QB 125
Lord Widgery giving judgment in this court, said this:
"... offences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists between them. Such nexus is certainly established if the offences are so connected that evidence of one would be admissible on the trial of the other, but it is clear that the rule is not restricted to such cases."
He added later in his judgment:
"It is not desirable, in the view of this court, that rule 3 should be given an unduly restricted meaning, since any risk of injustice can be avoided by the exercise of the judge's discretion to sever the indictment. All that is necessary to satisfy the rule is that the offences should exhibit such similar features as to establish a _prima facie_ case that they can properly and conveniently be tried together."
31.
Those _dicta_ were approved by the House of Lords in the case of
Ludlow v Metropolitan Police Commissioner
[1971] AC 29
, the judgment of the Judicial Committee being given by Lord Pearson.
32.
Counsel for the appellant submits that although it was plainly necessary for the jury to know something about the burglary, it was not necessary for them to know all the details and in the circumstances it was unfair and wrong for joinder to take place here.
33.
We reject that submission. It seems to us almost impossible to know exactly where one would draw the line as to what would be admissible and what would not, and it would be an extremely difficult task for the judge and counsel to tread wherever that line was supposed to be drawn. In any event, it seems to us quite fanciful to think that one can leave before the jury an allegation in the air that there has been a burglary which has taken place, and which, if it has taken place, is potentially prejudicial to the defendant, without the jury being able to satisfy themselves, so that they are sure, that the burglary has in fact occurred. Indeed, it would be wrong for the jury to treat the burglary as evidence supporting the rape count unless they were sure of it.
34.
We think that this was a plain case where it was obviously right for the two counts to be put in the same indictment and it would have been impossible for the jury to deal satisfactorily with the matter if they had not been. Accordingly the appeal against conviction fails.
35.
We turn to the appeal against sentence. In passing sentence the judge was told that this appellant is a man of good character. He formed the view that the appellant was a very arrogant man and that he had acted in accordance with that personality trait when committing these offences, but there was no justification for his violating the victim's property nor her body. He passed a consecutive sentence of 12 months for the burglary.
36.
It was an unusual case to the extent that the victim herself would not have pursued the rape charge and would not have told the police about it but for the burglary. Indeed, even then she did not want the rape charge to be pursued. As we have noted, she also voluntarily on a number of occasions after the rape had occurred chose to meet the appellant and to socialise with him. From her point of view matters came to a head when he committed this burglary, which obviously in the context must have been distressing. It was the final straw in what appeared to be harassment from somebody who could not accept that the relationship had come to an end.
37.
We see, with respect, why the judge chose to make the burglary consecutive, but as we have said, it was a highly unusual burglary, more in the nature of an act of harassment from a distressed ex-partner.
We bear
in mind that the appellant was aged 53 and of good character and whilst this rape certainly involved a breach of trust, it was not as traumatic to the victim as would usually be the case, as demonstrated by the fact that she voluntarily allowed the relationship thereafter to continue. We think that justice is done by making the sentence for the burglary concurrent with that for the rape.
38.
To that extent we will reduce the sentence of six and a half years and substitute a sentence of five and a half years. To that extent this appeal succeeds in relation to sentence. | ```yaml
citation: '[2013] EWCA Crim 98'
date: '2013-01-22'
judges:
- LORD JUSTICE ELIAS
- MR JUSTICE FIELD
``` |
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. 2010/04101/D1, 2010/05559/D1, 2010/04791/D1 & 2011/01836/A2
Neutral Citation Number:
[2011] EWCA Crim 1497
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Thursday 26 May 2011
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Judge
)
MRS JUSTICE RAFFERTY DBE
and
MR JUSTICE OPENSHAW
__________________
R E G I N A
- v -
THOMAS THOMAS
JAMAL (AKA CLINTON) MOGG
AMAN KASSAYE
CRAIG CALDERWOOD
__________________
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4
Telephone No: 020 7404 1400; Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
__________________
Mr A Davis
appeared on behalf of the Applicant Thomas
Miss N Bahra
appeared on behalf of the Appellant Mogg
Mr N Corsellis
appeared on behalf of the Applicant Kassaye
Mr I Bourne QC and Mr T Smith
appeared on behalf of the Applicant Calderwood
Mr P Bennetts QC
appeared on behalf of the Crown
____________________
J U D G M E N T
THE LORD CHIEF JUSTICE:
1. On 25 June 2010, in the Crown Court at Woolwich, before His Honour Judge Pegden QC and a jury, Aman Kassaye was convicted of conspiracy to rob (count 1), kidnapping (count 2) and possessing a firearm at the time of committing an offence (count 3). On 29 June 2010 Thomas Thomas was convicted of conspiracy to rob (count 1). On 6 July 2010 Jamal Mogg was similarly convicted. Another co-accused, Solomon Beyene, was convicted of conspiracy to rob (count 1). Four further co-defendants, Benjamin McFarlane, David Joseph, Courtney Lawrence and Gregory Jones were acquitted. The jury were unable to reach a verdict in relation to Craig Calderwood. They were discharged and a new trial was ordered. On 4 March 2011, at the same court, before the same judge he was convicted of conspiracy to rob and possessing a firearm at the time of committing an offence.
2. On 6 August 2010, Thomas Thomas was sentenced to sixteen years' imprisonment. Aman Kassaye was sentenced to two years' imprisonment for kidnapping, sixteen years' imprisonment for conspiracy to rob, and five years' imprisonment for possessing a firearm at the time of committing an offence. Those sentences were ordered to run consecutively, making a total of 23 years' imprisonment. Jamal Mogg was sentenced to sixteen years' imprisonment. On 4 March 2011, Craig Calderwood was sentenced to sixteen years' imprisonment for conspiracy to rob, and to five years' imprisonment for possessing a firearm at the time of committing an offence. Those sentences were ordered to run consecutively, making a total sentence of 21 years' imprisonment.
3. In each case appropriate directions were given in accordance with
section 240
of the
Criminal Justice Act 2003
in relation to time spent in custody on remand.
4. Thomas now renews his application for leave to appeal against conviction following refusal by the single judge. Kassaye renews his application for an extension of time (approximately one-and-a-half months) in which to apply for leave to appeal against conviction and renews his application for leave to appeal against conviction following refusal by the single judge. The single judge granted Thomas, Kassaye and Mogg leave to appeal against sentence. Calderwood seeks leave to appeal against sentence. His application has been referred to the full court by the Registrar who granted a representation order for leading counsel. Because leave to appeal against sentence has been granted to the other three co-accused, we shall grant him leave to appeal.
5. The facts of the offences can be taken briefly. In a carefully planned crime, Graff jewellery store in New Bond Street, London was the target of a robbery. Arrangements were made to organise the getaway after the robbery had taken place. Very careful arrangements indeed must have been made to dispose of the fruits of the robbery after it had taken place. £40 million worth of jewellery was taken. None of it has been recovered.
6. On 4 August 2009 there was either an aborted attempt at the robbery, which was to take place two days later, or there was a "dummy run".
7. On 6 August Kassaye and Calderwood entered Graff jewellery store. They posed as customers. They had been professionally made up to look older than they were. They carried converted hand guns (imitation hand guns which were able to fire live ammunition) which they used to threaten four of the employees who were ordered to the ground and ordered not to look. A fifth employee was forced to open the display cases. In a rapid exercise the two robbers made off with £40 million worth of jewellery. On their way out, Kassaye grabbed hold of a female employee as a hostage. He held her for approximately 40 seconds in order to facilitate the escape. In holding her, he took her out through the security doors. Death threats were made to the hostage and indeed to the other employees.
8. The two robbers went to the getaway car. One of the security officers employed by Graffs, with great courage, approached them to confront them. At that stage Kassaye fired a shot towards the ground. The case was dealt with by the judge on the basis that it was not proved that the ammunition fired on this or later occasions was live ammunition. He approached the case on the basis that the ammunition may have been blank.
9. As the getaway car was driven away, a member of the public gave chase. Calderwood fired shots at him. Kassaye left the first vehicle and made away on foot. Again he fired a shot in the direction of the same member of the public.
10. The precise details of the getaway scheme do not need elaboration. There was a carefully organised arrangement for vehicles to be made available so that the robbers could escape and so that other vehicles could be put in place to block and delay any cars that might follow them.
11. The getaway car was eventually abandoned within a one-way system, which had itself been blocked by two other getaway vehicles to facilitate the escape. Fortunately, a mobile telephone was accidentally left in the first getaway vehicle. It was this mistake that allowed a full police investigation to take place, which enabled the details of the conspiracy and those involved in it to be examined and eventually put together for the purposes of a prosecution.
12. CCTV footage showed Kassaye and Calderwood outside Graff's premises on 4 August. They wore the same suits as they wore on the day of the robbery and they had been made up to look older than they were. Among other things, Kassaye wore a false beard and he had bought the mobile phones used in the organisation of the conspiracy.
13. Thomas was involved in the hiring of trucks used for blocking purposes. He admitted that he had made a telephone call on 4 August 2009 to the truck hire company from a mobile telephone number (ending 8510) from Marble Arch informing them that the hire truck had broken down. This was the number of one of the telephones purchased for the purposes of the conspiracy. It was subsequently used to contact other phones used by the conspirators. It was sited very close to the vicinity of the robbery.
14. Mogg provided access to an address where a make-up artist was employed on 4 August 2009 to disguise Kassaye. He was also involved in the area when the relevant mobile phones were activated.
15. Following a press release after this very serious robbery a number of individuals came forward. They identified Kassaye. Several of the men on the CCTV footage were also identified as people who had been made up.
16. On 20 August 2009 Mogg was arrested. He made no reply to the caution. In interview he denied any involvement in or knowledge of the conspiracy.
17. On 4 September 2009 Kassaye was arrested. He produced a prepared statement in which he denied any involvement or participation in the robbery.
18. On 14 October 2009 Thomas was arrested. When cautioned he said that he did not know what the police were talking about. In interview he made no comment.
19. It is unnecessary to record the brief details of the arrest and response to arrest by Calderwood.
20. We deal first with the applications for leave to appeal against conviction. The prosecution case against Thomas was that he was involved in the conspiracy. The allegation was based on his involvement in the hiring of the trucks and the telephone calls from the mobile telephone number ending 8510. He had used that number to call the hire company on 4 August 2009. The jury was invited to infer that he must have been responsible for the subsequent calls to the other phones which were used during the course of the planning of the conspiracy.
21. The defence case for Thomas, who did not give evidence, was that he contacted the truck hire company from Marble Arch on 4 August in order to arrange for the attendance of mechanics to deal with the breakdown, and that he had made no other calls to the telephones used in the conspiracy.
22. The Crown's case against Kassaye was that he was identified as one of the robbers.
23. At trial Kassaye gave evidence. His case was that he was not one of the robbers; he was not at the scene; and he was not involved in the conspiracy. He ran an alibi defence. All the identifications of him were wrong. Separately, there was a suggestion advanced on his behalf that there had been no robbery; that the apparent robbery represented "an inside job" which had been arranged by the owner of the shop who therefore, as a matter of law, had consented to what would otherwise appear to have been the theft of his property.
24. The issues for the jury in relation to both Kassaye and Thomas were whether there was a conspiracy, and, if so, whether each was involved in the conspiracy and whether in the end this was, or may have been, the inside job to which we have referred.
25. In the grounds of appeal against conviction prepared on behalf of Thomas it was suggested that the judge had put before the jury a version of events which was unsupported by the evidence and which caused prejudice and therefore produced an "unsafe conviction". The single judge, having carefully examine this ground, gave detailed reasons for refusing leave. He said:
"
Conviction
1. In my view the judge directed the jury perfectly correctly and fairly, given the fact that the applicant said nothing to the police in interview and gave no evidence. He merely, through his counsel, did not challenge the evidence that he spoke to a Mr Amir, from Best Hire from the Marble Arch area to say that a tyre on the truck had blown out. Mr Vieira was sent by Best Hire to fix the truck. The judge then told the jury that there was a dispute as to who was using the phone attributed by the prosecution to the applicant and that the applicant denied that it was him.
2. Two days later the judge directed the jury that the applicant did not accept that phone 8510 was used by him, save that there were calls by the applicant to Best Hire to effect the repairs. Finally, the judge read to the jury the agreed sentence to the effect that the applicant did not dispute that he spoke to Mr Amir from Marble Arch when he asked for assistance. In his Defence Case Statement the applicant admitted speaking to Mr Amir on the phone to report the fault with the tyre but he did not admit making any other calls relevant to the case. The judge said nothing to the jury that was inconsistent with the Defence Case Statement.
3. In my view the submission that the judge gave the jury the impression that the applicant's case was 'confused and inconsistent' is so weak as to be virtually unarguable. Accordingly, I refuse permission."
With those observations we agree. The only word with which we might take mild issue is the description "virtually". The point was totally unarguable.
26. A second ground of appeal has been advanced which was not before the single judge. New counsel has been instructed. It is submitted by Mr Davis on behalf of Thomas that the conduct of his defence at the Crown Court was of such a level of inadequacy that the conviction should be regarded as unsafe. In the papers which we have examined much attention is focused on the relative lack of experience of defence counsel -- inexperience contrasted with the application made by counsel that Silk should be assigned to lead him. In the result, a representation order for leading counsel was not made. Looking at the matter in the round, we can see no reason why it should have been. We remind ourselves that Thomas appears to have been the last defendant on the multi-handed indictment. Before his counsel took any part in the process, there were three Silks and juniors instructed on behalf of the first three defendants, and junior counsel instructed for the remaining defendants. So far as Thomas is concerned, although it was alleged that he was involved in a very serious crime, the case against him and the way in which it had to be dealt with reflected neither any significant difficulty nor any great complexity. We have looked for indications among the papers to lead us to the conclusion that counsel's inexperience and alleged incompetence while acting for Thomas may have prejudiced the defence. Apart from the issue raised about the phone numbers, to which we have referred already, nothing has been drawn to our attention to create any concern. In reality, that is not the point advanced by Mr Davis. The principal criticism, and therefore the primary ground of appeal, is based on the circumstances in which Thomas decided that he would not give evidence on his own behalf. It is submitted by Mr Davis that he should have been advised in the strongest possible terms that he should give evidence. Without that advice, he was not sufficiently informed about the decision to be made in his own best interests. All this, it was said, was flagrantly incompetent.
27. Nevertheless, when the realities are examined, Mr Davis agrees that counsel made it clear to Thomas that the decision whether to give evidence, or to decline to give evidence, had to be made by Thomas personally. It is equally clear that the decision not to give evidence was indeed made by him.
28. We have examined a document entitled "Endorsement of Decision Not to Give Evidence" that deals with these matters. It is a lengthy document. Given the way in which the assertion is made on behalf of Thomas we propose to set it out in full. It will speak for itself. It reads:
"1. I Thomas Thomas today, 27th March 2010, have indicated to my barrister .... that it is my intention not to give evidence in my own defence at the trial taking place at Woolwich Crown Court.
2. I have had time to discuss this decision with my barrister and the solicitors acting in my case, in particular in conference on the afternoon of the 26th May 2010 at the close of the prosecution case where we went through the state of the evidence against [me].
3. I know that this decision is mine to make as the consequences of the decision will fall on me alone. I have not been pressurised to make this decision today and at no point has my barrister or any of those acting for my solicitors told me what I should do.
4. My barrister has explained that when it comes time for my case to start today my barrister will tell the judge in front of the jury that I do not wish to give evidence. I understand that in the jury's presence the judge will ask my barrister:
'Have you advised your client that the stage has now been reached at which he may give evidence and, if he chooses not to do so or, having been sworn, without good cause refuses to answer any question, the jury may draw such inferences as appear proper from his failure to do so?'
5. My barrister will answer that question 'Yes'.
6. I have been told that if I do not give evidence the judge will direct the jury at the end of the trial during his summing-up as to how they should treat my failure to give evidence in a way similar to this:
'The defendant has not given evidence. That is his right. He is entitled to remain silent and to require the prosecution to make you sure of his guilt. You must not assume he is guilty because he has not given evidence. But two matters arise from his silence.
In the first place, you try this case according to the evidence, and you will appreciate that the defendant has not given evidence at his trial to undermine, contradict or explain the evidence put before you be the prosecution.
In the second place, his silence at this trial may count against him. This is because you may draw the conclusion that he has not given evidence because he has no answer to the prosecution's case, or none that would bear examination. If you do draw that conclusion, you must not convict him wholly or mainly on the strength of it, but you may treat it as some additional support for the prosecution's case.
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 two things: first, that the prosecution's case is so strong that it clearly calls for an answer by him; and second, that the only sensible explanation for his silence is that he has no answer, or none that would bear examination.'
7. This direction has been explained to me during the conference with my barrister and I understand what it means."
The document then goes on to deal with the prosecution case:
"8. At this stage my barrister has explained to me that the prosecution case against me has been closed and when addressing the jury in his speech, prosecution counsel cannot make reference to anything not properly in evidence at this stage, if I choose not to give evidence.
9. In reviewing the prosecution case the following areas of evidence currently stand against me:"
There then follow a series of bullet points which set out what on the face of it a powerful prosecution case suggestive of the applicant's guilt. In relation to the telephone calls these passages appear as bullet point numbers 5, 6 and 7:
"•
The telephone attributed to me is based on the fact that it calls the Best Hire number at a time consistent with the call to Amir Mir on the 4th August 2009 when it was cell sited at Marble Arch.
•
The telephone attributed to me is a 'dirty phone' with contact with other 'dirty phones'. I have been through these calls and know that the calls to dirty numbers are close (on occasion under a minute) in separation from the calls to Best Hire which I have been identified as having made.
•
The telephone attributed to me is sited in the serving cell for Graff Jewellers on the 4th August 2009 at the time of the 'attempt' or 'recce'."
The text continues:
"10. I understand that in their speech the prosecution will say these elements demonstrate my involvement with the conspiracy and will say that my failure to give evidence is due to the fact that I do not have an answer that stands up to scrutiny.
11. I understand that the prosecution will say that, although the burden is not on me to prove anything, I have not presented any evidence to challenge or explain the points above."
The document then turns to the defence case:
"12. I have been through the points that my barrister will be able to mention in his speech to the jury if I do not give evidence in this trial.
13. The particular points are discussed are:"
There follow eight bullet points. We set out some of them:
"•
The fact that I made three calls on a phone to Best Hire does not mean that the attribution of the 'dirty phone' to me is correct. It is not possible to say who was holding the phone at the time the calls were made.
•
The cell site analysis for the 4th August 2009 shows that the phone was close to Pall Mall at only a couple of minutes before the CCTV shows the truck already in position at the junction of Grafton Street and New Bond Street. It also shows the phone later in the 'arc' of the cell that is not the one at that junction at the time the truck is there.
•
There are good reasons why in a case like this someone would choose not to give evidence and the only reason, given the possible threats, is not that answers wouldn't stand up to scrutiny."
(We leave the narrative of this document briefly. We know from the papers that point was precisely advanced by counsel on the applicant's behalf by way of an explanation to the jury of the applicant's decision not to give evidence on his own behalf. Anyone involved in a robbery like this, with the proceeds on this scale, would have very good reason to fear the interest of criminals who would not behave in a totally gentlemanly way if they had any questions to ask of him or if he said anything which might involve them.) Returning to the narrative:
"14. I understand that although the above points will be made in my barrister's speech to the jury, that he will not be able to tell the jury what actually happened to me at the times in question. In law the jury are not allowed to hear my version or rely on it unless it is tested in cross-examination in the witness box.
15. Although the prosecution referred to my Defence Statement in their opening saying that I had hired the vans for a friend and was not part of a conspiracy, the judge will tell the jury that they must not rely on that as it was not tested by me giving evidence about it.
Decision
16. I understand that of the seven defendants left in this case only Kassaye and Calderwood have elected to give evidence and the other defendants have decided also not to give evidence.
17. Despite this, I am not just doing what the other defendants have done from pressure by them or anyone else. I have considered my case and the impact this decision will have on me and I know that once I make this decision I will not be able to change my mind and later give evidence.
18. I have read through this document and had the chance to correct anything that I do not agree with."
29. That document makes it plain that Thomas knew precisely what the impact of his decision not to give evidence would (or might) be, including the judge's comment to the jury that his decision not to give evidence might count against him and the precise reason why. We do not propose to re-read paragraphs 7, 10, 14 and 17, but it is perfectly obvious that the issue of whether or not the applicant should give evidence at the trial was most carefully analysed in the light of the evidence against him and in the light of the very limited matters which could be advanced on his behalf by counsel in his closing speech. In full appreciation of the difficulties of his case, Thomas made the decision that he would not give evidence.
30. We can find nothing to suggest that the way in which this important element of the trial was handled by counsel appearing at trial on behalf of Thomas Thomas could in any way merit the epithet "incompetent". In those circumstances his renewed application for leave to appeal against conviction is refused.
31. We turn to the renewed application by Kassaye. Kassaye's original grounds of appeal alleged that part of the defence case was that the robbery was the inside job that we have described and the complaint was made that the judge failed adequately to direct the jury about what might constitute an "inside job". Pausing there, we believe that the jury would have known precisely what an "inside job" meant without any judicial explanation. It is a colloquial term well understood by everyone.
32. The second ground of complaint was that the judge had misdirected the jury by telling them that counts 1, 2 and 3, as they affected the applicant Kassaye, had to be treated as if they were the same so that the same verdict would be reached for each. It was suggested that, notwithstanding the practical realities of the case, it might have been possible that the jury would have concluded that the robbery was a staged inside job, while at the same time being satisfied that the victim of the kidnap was unaware of the fact that the robbery was a staged robbery and therefore that she had indeed been kidnapped, in which case the jury could have returned a guilty verdict on that count while acquitting the applicant on the robbery count.
33. We have described this ground in as clear language as we can, but even as we express it, we find it difficult to see how this issue could have been addressed by the judge to the jury, at any rate, while at the same time leaving them with any idea that he had the slightest grasp of practical realities. In fact, the judge left the issues on each count for decision by the jury.
34. We have today been provided with a nine page, legibly handwritten document prepared by the applicant himself in which he sets out carefully prepared, balanced grounds. In effect they repeat the grounds prepared by counsel, but they also include some criticism of counsel for the way in which the defence was conducted.
35. However, the starting point is to remember that the issue raised by the applicant in his defence was that he was not at the premises. This was an alibi defence. The possibility that this crime may have been an inside job, and therefore no crime at all, was a matter of theory and speculation. We pause to note that if the applicant was indeed inside Graff's at the time when the robbery took place -- participating as it was alleged that he had -- and the jury was sure that he was there (as indeed they were in his case, and indeed as they were in the case of Calderwood), neither he nor Calderwood had offered the jury any suggestion which implied in any way that this was not a real robbery, that they had taken part in it at the behest of the owner of the premises in order to advance whatever fraud or dishonesty the owner was involved in. We therefore emphasise, so that there can be no doubt about it, that there is before us not the slightest shred of evidence that this was, or may indeed have been, the inside job to which our attention has been so repeatedly focused. As we have said, the concept is easy to grasp. The jury would have had no difficulty in grasping it. It did not need any great elaboration.
36. Much, however, has been made of the way in which the issue was approached. We take one passage from the applicant's own written grounds to indicate the way in which he has elaborated on these matters. At page 9 he says this:
"With hindsight it is clear that my QC was working from two very different platforms, the first being that this was an inside job by the owner and
some
of the staff. The second platform is that this was an inside job by the owner and
all
the staff. During the trial he moved from one basis of defence to the other, which led to an inconsistent and incoherent defence. This has resulted in me receiving an unfair trial."
37. However, given the total absence of any evidence on these matters, and assuming (because we are told so by the applicant), without examining, that it is indeed correct that counsel worked from the two different platforms identified by the applicant, the truth is that the investigation of this part of the case in the course of the trial was entirely speculative.
38. In refusing leave the single judge dealt with the written grounds prepared by counsel which cover these matters. His observations apply equally to the new nine page document containing amplified grounds which we have considered today. Again, as before, he dealt with them in some detail. He said:
"
Conviction
1.
In my view there is nothing in the submission that the judge failed adequately to direct the jury on the question of what would constitute an 'inside job'.
2.
The case of the applicant and his co-defendant, Calderwood, as put forward in the course of the cross-examination of Mr Elliott Graff, was that '
all of the staff and Graff's were in on this, that the robbery was an inside job
' (10 June 2010, page 164D-E) and, as described by the judge in his summing-up, was that: '
the robbery was an inside job and staged at the behest of Graff's, and with the connivance, the agreement of the staff
' (11 June 2010, 146C-D).
3.
No case was put forward by the applicant at trial that only the owner of the shop might have agreed to the robbery or that not every member of staff of the shop had been aware of the plan (as suggested in the outline Grounds of Appeal). There was therefore no need for the judge to direct the jury as to a position that had not been raised. This also disposes of the points about the other counts.
4.
Further, so far as I can tell, leading counsel for the applicant did not suggest to the judge that any such directions were necessary.
5.
.... It is not reasonably arguable that this conviction is unsafe."
With those observations we agree. This renewed application for leave to appeal against conviction is accordingly refused.
39. We turn to the appeals against sentence. Kassaye is 25 years old. He has three previous court appearances which are of no relevance and his previous sentences have been non-custodial.
40. Thomas Thomas is 46 years old. His convictions are ancient and have no relevance to the sentence in this case.
41. Jamal Mogg is 43 years old. He has made a number of court appearances right through until 2009, largely for offences of dishonesty. He has had a variety of different sentences imposed on him, the longest of which was imposed in 1997 for twelve months. Again, his convictions have no significance in the context of this case.
42. Craig Calderwood is 28 years old. He has nine previous court appearances up to 2009 for a variety of offences relating to violence, property, fraud, dishonesty and so on. The sentences imposed on him have ranged from non-custodial sentences to a single sentence of imprisonment for three months which was imposed in 2008. Accordingly, his convictions are of no relevance when set against the crime with which the judge had to deal.
43. In his sentencing remarks the judge summarised the essential features of the trials over which he had presided. In sentencing Calderwood (and the same applies to the others) he said that this particular robbery, carried out where security was extremely high, required meticulous planning and a very significant number of conspirators. He recorded that the fear of the public on the street was plain to be seen from the CCTV footage. That fear was also partly captured on mobile phone footage which recorded the screaming in the street when the first shot was fired. The terror and trauma of the staff in particular lay at the heart of the case, although the judge had in mind the terror and trauma which was visited on other members of the public. He identified the significant aggravating features of the crime. They included: the carrying, use and discharge of the firearm in a busy public street by men who were disguised; the death threats to members of the staff; the terror and life-long trauma caused to the staff who believed that they would be shot; the very high value of the property taken; the fact that it was not recovered; the meticulous and detailed planning, coupled with the number of people who must have been involved, together with the measures used to achieve their goal, to make their escape and to avoid detection. When sentencing Calderwood, the judge suggested that this robbery fell into the most serious category of commercial robberies and that the appellant's own role took him into the "wholly abnormal range of sentences".
44. That was echoed in his sentencing remarks in the course of the first trial involving the three other appellants. When addressing Kassaye the judge said that his role took him into the "wholly abnormal range of sentences". Having looked at the offence in its overall context with all its aggravating features, the judge came to the conclusion that Kassaye was at the heart of the conspiracy, deeply involved in its planning and in its execution. He took account of such mitigating features as there were.
45. So far as Calderwood was concerned, the judge expressed the view that Calderwood, too, was at the heart of the conspiracy, deeply involved in its planning and execution.
46. So far as Thomas and Mogg were concerned, each played an important part in the conspiracy, but they had not entered Graff's and they had not carried or used firearms, or threatened anyone. Accordingly, their roles were lesser. On the other hand, they both knew the target of the robbery; that it was a very high value robbery and, importantly, that firearms would be brandished. Although their individual roles did not take them into the "wholly abnormal range of sentences" which were applicable in the cases of Kassaye and Calderwood, they had still played their parts in a very serious armed commercial robbery.
47. The main argument advanced on behalf of Kassaye in written submissions is that the judge was wrong to place this case in the category of cases of utmost seriousness or one which was "wholly abnormal", and wrong to impose a consecutive sentence for the offence of kidnapping.
48. The same argument is put forward on behalf of Calderwood in relation to the "wholly abnormal" nature of the offence. It is also suggested that the judge was wrong to conclude that he was heavily involved in the organisation of the robbery and therefore, to that extent, the judge misdirected himself when taking that feature into account in the course of his sentencing decision.
49. So far as Thomas was concerned, the argument is that the judge having found that in his case the offence was not "wholly abnormal", a sentence of sixteen years' imprisonment was manifestly excessive, and that he had passed the same sentence on Thomas as he had on Kassaye, notwithstanding that he had attributed a much more significant role to Kassaye, and therefore the sentence was disparate.
50. Finally, precisely the same point is made in a slightly different way on behalf of Mogg. The role played by Mogg, when compared to Kassaye, meant that he should have a lower sentence. No consideration was given to his lesser role in the conspiracy. The starting point adopted in his case was too high and insufficient allowance was made for his lesser role.
51. To a large extent in the course of careful arguments advanced on behalf of each of the four appellants, the same matters have been put before us on the hearing of the appeal. In his written submissions Mr Bourne QC drew our attention to a number of sentencing decisions to which we will come, but he suggested that Calderwood was neither a career criminal (as demonstrated by his previous convictions which were in a completely different league to these and irrelevant), nor was he an organiser. He was a "follower not a leader", and therefore he should not have been sentenced in the same way as Kassaye because his involvement was less.
52. So far as Kassaye is concerned, the argument was slightly different: that it was wrong to describe his involvement as coming within the "wholly abnormal" category; there was nothing absolutely exceptional or horrifying; no submachine guns were taken; and no actual violence resulting in serious injuries was administered to anyone, whether in the shop premises or indeed on the street. The sentence for the kidnapping offence should have been seen as part and parcel of the robbery and therefore a consecutive sentence was inappropriate.
53. So far as Mogg is concerned, our attention was focused on what were described as his limited antecedents. He was, it was contended, a foot soldier, not an organiser, nor a prime mover. His participation was at the lower end, and it was therefore inappropriate for him to be sentenced in the same way as Kassaye and Calderwood.
54. So far as Thomas is concerned, our attention was drawn to the fact that he is a man of mature years. This would be his first custodial sentence. It was recognised that his role, as found by the jury, was important, but it was, on any fair view, a lesser role and therefore the sentence was too long. There was an element of disparity as between him and Mogg and Kassaye and Calderwood.
55. On an examination of these submissions the essential structure is based on the foundation that the judge's use in his sentencing remarks (and on behalf of the appellants it is contended the inappropriate use by the judge in his sentencing remarks) of the words "wholly abnormal" to describe the offence and to explain the sentences was simply wrong. It did not apply either to Kassaye or to Calderwood, and therefore so far as the other two appellant are concerned, they, too, must fall in line with Kassaye and Calderwood. If Kassaye and Calderwood were not within the "wholly abnormal" range, then their range should be described differently and at a lesser level, and therefore correspondingly Thomas and Mogg would also come down in the analysis.
56. As to this submission, it is rarely wise to approach sentencing decisions as if every criminal offence can be rigidly subjected to linguistic compartmentalisation. That approach does not work. We have examined a large number of sentencing decisions to which our attention has been drawn, not only on behalf of Calderwood, but also on behalf of the Crown. They include:
R v Turner
(1975) 61 Cr App R 67
;
R v Reed
(1988) 10 Cr App R(S) 243;
R v Mehmet Arif and Others
(1994) 15 Cr App R(S) 172;
R v Farrer
(1995) 16 Cr App R(S) 904;
R v Greaves
[2003] EWCA Crim 3229
;
R v Betson
[2004] 2 Cr App R(S) 52;
R v McCartney and Others
[2003] EWCA Crim 1372
;
R v Atkinson and Smith
[2005] 2 Cr App R(S) 34;
R v Buckley
[2008] 2 Cr App R(S) 17;
R v Jenkins and Others
[2008] EWCA Crim 1372
; and
Attorney General's Reference Nos 56, 57 and 58 of 2008
[2009] 2 Cr App R(S) 52.
57. The most important feature of the discussion arises from the well-known decision of this court in
Turner
from which the words "wholly abnormal" are derived. It is right to notice that the decision in
Turner
was referred to as recently as the July 2006 Sentencing Guidelines Council's Definitive Guideline on Robbery. That led to a discussion about its significance in the course of
Attorney General's Reference Nos 56, 57 and 58 of 2008
. Having narrated the facts, Toulson LJ turned to the definitive guideline. In the course of the judgment he repeated the way in which the Council had referred to "Category 5 offences" (professionally planned, commercial robberies), and that the guidance had continued that it was unnecessary to provide specific suggestions as to the sentencing range or the appropriate starting point for such cases because for them "existing case authority is still valid and this is summarised in Part 2". He then set out the passage contained in Part 2 as follows:
"The leading Court of Appeal decision on sentencing for robbery is the 1975 case of
Turner (Bryan James
)
(1975) 61 Cr App R 67
. This focuses on serious commercial robberies at the upper end of the sentencing range but just below the top level -- planned professional robberies of banks and security vehicles involving firearms and high value theft, but without the additional elements that characterise the most serious cases. The Court of Appeal said it had 'come to the conclusion that the normal sentence for anyone taking part in a bank robbery or in the hold-up of a security or a Post Office van should be 15 years if firearms were carried and no serious injury done.
The Court also said that 18 years should be about the maximum for crimes which are not 'wholly abnormal' (such as the Great Train Robbery).
In cases involving the most serious commercial robberies the Court has imposed 20-30 years.
(15-20 years after a plea of guilty)."
From the very fact that
Turner
was referred to in this definitive guideline, Toulson LJ indicated that the court's attention should be drawn to it as being of current, valid authority.
58. The problem with the Sentencing Guidelines Council's Definitive Guideline on Robbery (at any rate in relation to this aspect of the crime and sentencing for it) is that the reference made by the Sentencing Guidelines Council was not (at any rate so far as the text in Part 2 is concerned) entirely apt. Perhaps the most significant feature of discrepancy is this. The analysis of the sentencing guidance in
Turner
began by referring to the terms of imprisonment which, in 1975, were served by those who were convicted of murder. In
Turner
Lawson LJ said (at page 90):
"The date when they [those who are sentenced to life imprisonment following conviction for murder] are discharged depends upon the circumstances of the offence; and it is wrongly assumed by the public that nearly all persons convicted of murder are released after about ten years, but some are. Very few, however, are kept in custody after about fifteen years."
He went on to suggest that the way in which the court should approach serious offences of violence should at least have some relationship to the sentences imposed for murder. That point was repeated in an unreported decision at much the same time in
R v French
, referred to in the course of a judgment given by Scarman LJ in
R v O'Brien and Noonan
(1975) 61 Cr App R 177
, when he said:
"[Counsel] .... drew our attention to a recent decision of this Court (
French
(unreported)) in which Lawton LJ giving the judgment of the Court, commented that it was necessary in cases of violence to correlate the sentence of the Court sensibly and fairly with the term in prison likely to be served by a murderer."
59. That point was perhaps not sufficiently appreciated when the Sentencing Guidelines Council issued its 2006 definitive guideline. That is unsurprising. The
Criminal Justice Act 2003
, and in particular Schedule 1 to
the Act
, which deals with the minimum terms to be served by those convicted of murder, cannot have had any impact on the day-to-day work of the courts (or for that matter the Council), as it only applied to murders committed after April 2005. However,
Turner
established that there is a relationship -- not a mathematical calculation -- between the level of sentences for murder and for all serious cases involving violence. Therefore it is inappropriate wholly to ignore the simple reality that terms of imprisonment on conviction of murder have become significantly higher now than they were in 1975. In any event, sentencing decisions from 1975 are overwhelmingly out of date. We offer these examples in the context of the present case: first, there was then no minimum term normally to be imposed, save in exceptional circumstances, for the possession of a firearm. Second, there was no sentence of imprisonment for public protection to be applied to the dangerous offender. Third, the court specifically and expressly ignored any questions of possible remission for good behaviour or release in any circumstances, until that change in the sentencing process was brought about as a result of the implementation of the
Criminal Justice Act 1991
, with automatic release provisions. In sentencing terms, therefore, sentencing arrangements from the 1970s are usually to be regarded as coming from a different sentencing epoch.
60. In more recent guidance the court addressed the issue arising in this case in
R v Jenkins and Others
[2008] EWCA Crim 1372
, [2009] 1 Cr App R(S) 20 (at page 109). That was a case in which security guards were robbed by men armed with firearms. In giving the judgment of the court Moses LJ said:
"7. .... The maximum, reserved for the most serious offences short of life imprisonment, appears to be in the region of 25 years and certainly
Turner
, which appears still to be cited out of deference to the Lord Justice who presided in that case, has no longer any relevance as a reliable guide to the appropriate level of sentencing. That guidance for robberies of this gravity has to be found in, for example,
McCartney
[2003] EWCA Crim 1372
and, although it was not cited to us, we draw attention to the case of
Atkinson
[2004] EWCA Crim 3223
; [2005] 2 Cr App R(S) 34 (page 206)."
61. This court returned to the issue in
R v Twomey & Others
[2011] EWCA Crim 8
, where there were appeals against sentence in cases of robbery. At paragraph 81 the judgment of the court includes this passage:
".... Dealing with it generally, a guideline decision of this court which is now some 35 years old and which addresses a fairly common offence, in this case professional planned armed robbery, is likely to have been overtaken by subsequent decisions. ...."
Reference is then made to
Jenkins
and the judgment continues:
"In
Jenkins
the Court of Appeal suggested that
Turner
no longer had relevance as a reliable guide to the appropriate level of sentence. .... In short, the guidance offered by
Turner
should no longer be treated as if it offered a ceiling or cap to the appropriate sentencing bracket."
62. In short, therefore, we repeat and emphasise that the sentencing decisions on offences of this kind before
Jenkins
must be approached with the great caution
Turner
no longer provides the level of assistance to sentencing judges as it did when it was promulgated in 1975 and when sentences in this class of case are considered, there should be sensible recognition of the broad changes in sentencing practice across the entire range of offences of violence. We further emphasise that the fact-specific nature of the criminal activity involved in each offence remains the paramount consideration.
63. The present case is one of great seriousness. We have taken into account the arguments advanced before us. Our approach has been to examine the totality of the sentence imposed on each of the appellants. We are satisfied that the trial judge was well able to assess the role of each appellant, and where on the ladder of criminality each stood and the importance of the part played by each in the achievement of the overall enterprise. In the context of the totality, it is possible to argue on behalf of the other appellants that the sentence on Kassaye may have been slightly less than it might have been. But in the end we can find no argument on disparity or unfairness in the way in which the judge produced total sentences on each of the appellants in relation to each other.
64. Looking at this as a matter of totality, the conclusion to which we have come is that none of these sentences is either manifestly excessive or wrong in principle. Accordingly, the four appeals against sentence must be dismissed. | ```yaml
citation: '[2011] EWCA Crim 1497'
date: '2011-05-26'
judges:
- MRS JUSTICE RAFFERTY DBE
- 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: 200603873 A3; 200604935 A3; 200606195 A3; 200604385 A3
Neutral Citation Number:
[2007] EWCA Crim 876
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Date:
Friday, 23 March 2007
B E F O R E:
LORD JUSTICE KEENE
MR JUSTICE OWEN
MR JUSTICE WALKER
- - - - - - -
R E G I N A
-v-
RICHARD SALTMARSH
JOHN MARK RICHARDSON
ANTON VASINORAS
- - - - - - -
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 ROBSON QC AND MR J LENNON
appeared on behalf of the SALTMARSH
MR T SINGH
appeared on behalf of RICHARDSON
MR G WOODHALL
appeared on behalf of the PROSECUTION
- - - - - - -
J U D G M E N T
1.
MR JUSTICE OWEN: We propose first to consider the renewed applications for leave by Richard Saltmarsh and Anton Vasinoras in relation to indictment T20067171, the Manchester firearms indictment; then secondly, to consider the renewed application for leave by Richard Saltmarsh and the appeal by John Richardson in relation to the drugs indictment, indictment T20057304.
2.
On 27th April 2006 the applicant, Anton Vasinoras, appeared at the Crown Court at Manchester, where he pleaded guilty to two counts of an indictment - count 1, conspiracy to contravene
section 170 of the Customs and Excise Management Act 1979
; and count 2 - conspiracy to present firearms with intent to enable another person or persons unknown to endanger life. On 7th July 2006 the applicant, Richard Saltmarsh, was convicted on the same counts and was sentenced to 20 years' imprisonment on count 2, there being no separate penalty imposed on count 1. On 28th July Vasinoras was sentenced to 14 years' imprisonment on count 2, no separate penalty being imposed on count 1. In his case there was a direction that 360 days spent on remand should count towards the sentence.
3.
Both renew their applications for leave to appeal against sentence following refusal by the single judge.
4.
The applicants were jointly indicted with four others - Marius Renke, who pleaded guilty on re-arraignment after the jury had been sworn, on count 1 and count 2, and was sentenced to 18 years' imprisonment; James Parker, who pleaded guilty to both counts and was sentenced to 13½ years' imprisonment; Dawson Wray, likewise, pleaded guilty to the two counts and was sentenced to 11½ years' imprisonment. A fourth man, Robertas Bauzys, was acquitted by the jury.
5.
The conspiracy involved the importation of 30 9 mm self-loading pistols and 1220 rounds of live ammunition. The guns and ammunition were imported from Lithuania. The pistols were Kuno Meltcher guns of German manufacture. They were designed for blank firing and would normally have had choke barrels. But the barrels had been cut off and replaced with steel tubes with external screw threads at their ends. Silencers had been fabricated to fit the steel tubes. The magazines had been adapted to fire live ammunition.
6.
The handguns were concealed in a secret compartment of a specially adapted Volvo motor vehicle which was driven across Europe and entered the United Kingdom by ferry. The man who drove the vehicle was Bauzys, who was acquitted by the jury. The car was originally from Belgium but had been modified and welded together with parts from an English market right-hand drive Volvo. The floor had been raised and the secret compartment welded beneath it. It was in this compartment that the firearms and ammunition were hidden.
7.
The car arrived at Harwich on 2nd August 2005. On the same day Vasinoras and Renka flew into Gatwick from Lithuania. They made their way by train to Coventry where they were met by Parker. The car also made its way to Coventry where there was a rendezvous. The four men then made their way to Manchester, travelling in convoy in two cars, one being the Volvo containing the firearms and ammunition. They drove to the home of the co-defendant, Wray. They were then under police observation, and attempts to recover the guns from the compartment in the vehicle were observed.
8.
It was on that day that a number of the defendants were arrested. But it was the analysis of mobile telephones recovered by the police that led the police to Richard Saltmarsh, who was in regular contact with Graham Parker at very significant times whilst these events were unfolding.
9.
It was the Crown's case that Richard Saltmarsh was at the head of the conspiracy and was its controlling mind, whilst keeping himself distant from the importation and subsequent onward distribution of the firearms.
10.
In passing sentence on Saltmarsh on 7th July, and on Wray, Parker, Renke and Vaisnoras an 28th July, HHJ Lever summarised the expert evidence as to the modification of the firearms and the construction of the false floor in the Volvo, observing that it involved a considerable amount of planning. He continued:
"This method of concealment and importation of firearms has not been seen in the UK before. The 30 guns and silencers and 1,220 rounds of live ammunition, make this one of the largest single seizures of firearms ever imported into the United Kingdom. If successful, the impact on gun crime in Greater Manchester would have been potentially enormous. From January 2004 to March 2006 there were in Greater Manchester 1,378 crimes in which firearms were used. 759 or 55% definitely involved handguns, with a further 504 where the exact nature of the weapon was unknown, so it may have been higher. There are 125 firearms forensically identified as outstanding. An extra 30 guns in this case represents a 24% increase on the streets of Greater Manchester which would potentially represent an enormous escalation of the threat, particularly having regard to the large amount of accompanying live ammunition. Of those 125 outstanding firearms, 25 have been discharged on 79 occasions, and 20 used in murders or attempted murders. Ammunition, particularly factory made, is scarce in Greater Manchester, so 1,220 additional rounds would have presented a significant danger to the community.
Since April 2003, 128 people have been killed or injured by firearm discharge in Greater Manchester. Handguns are more popular because they are easier to conceal than shotguns, and are a status symbol amongst young gangsters. Because these 30 guns can fire at least five rounds from the magazine without a need to reload, they are significantly more of a threat than single shot firearms. Gun crime is by its nature chaotic and unpredictable, and in Greater Manchester innocent people have been murdered or injured in the cross-fire in recent years. These crimes lead to a severe fear factor in the community. If these guns and ammunition had reached local gangsters, it would greatly have impacted on the community as a whole."
Those are observations that we strongly endorse.
11.
As to the roles of the conspirators the learned judge, having heard the evidence at the trial of Richard Saltmarsh, was satisfied that he was a prime mover. When sentenced he was a man of 27 with a record of minor offending.
12.
As to Vasinoras, it was the Crown's case that he was the interpreter, the key contact between the English end of the conspiracy and the Lithuanian end. He had flown to the United Kingdom with Renke and it was he who was revealed by the text messaging to have been involved in negotiating a price for the firearms.
13.
Renka pleaded guilty at the late stage of his trial having already given evidence. In passing sentence on him, the learned judge observed that his evidence had been a pack of lies from start to finish, and that it was an aggravating feature of the case that he had attempted to offload responsibility on to Bauzys, who was acquitted by the jury. The learned judge concluded that he, Renka, was "nothing short of a young Lithuanian international gangster."
14.
Wray, a man of 31 years, was the Manchester end of the conspiracy. Parker was a close friend of Saltmarsh and a mere neighbour in Coventry. The judge was satisfied that he was Saltmarsh's right-hand man at the Coventry end of the conspiracy. Both, he concluded, were highly involved.
15.
Richard Saltmarsh now seeks permission to appeal on the basis that that the learned judge erred in taking a term of 20 years as his starting point, and in his case his end point. Vasinoras also contends that the starting point of 20 years was out of line with recent authority and was too high. The supplementary point advanced on his behalf is that his was a lesser role than that of Saltmarsh, and that the lesser degree of culpability ought to have been reflected in the sentences passed upon him.
16.
In support of the principal submission, our attention was invited to the decision of this court in
Attorney-General's
Reference Nos 120 and 121 of 2004
[2006] 1 Cr App R (S) 7
at 44. In that case the offenders had pleaded guilty to conspiring to manufacturer prohibited weapons, conspiring to sell or transfer prohibited weapons and conspiring to possess firearms with intent to enable others to cause fear of violence. Over a period of 10 months the offenders obtained large quantities of blank firing handguns and corresponding blank ammunition. The offenders converted the weapons and ammunition into effective lethal prohibited weapons capable of firing ammunition. The adapted firearms and ammunition were then sold direct to interested parties. It was estimated that about 150 weapons were sold in this way.
17.
The defendants had been sentenced to six years' imprisonment concurrently on each count; and the Attorney-General asked the court to review the sentences on the grounds they were unduly lenient. This court considered that the appropriate starting point for such criminality would be a total of about 15 years. From that starting point there would be a reduction to 9 years allowing for the full discount promised to the offenders, and a period to allow for double jeopardy inherent in a reference. The court therefore reduced the total sentences to 9 years imprisonment.
18.
In passing sentence on these applicants HHJ Lever took express account of that decision, but rightly, in our judgment, drew attention to the important distinguishing feature, namely, that the maximum sentence for each of the conspiracies to which those offenders pleaded guilty was 10 years; whereas in this case the maximum sentence for the offence of possession of a firearm with intent to enable others to endanger life contrary to
section 16 of the Firearms Act 1968
(as amended) is life imprisonment, and accordingly the conspiracy to which Vasinoras pleaded and Saltmarsh was convicted also carries a maximum term of life imprisonment (see
section 3 of the Criminal Law Act 1977)
.
19.
In our judgment, the element of intent raises the offence into a significantly more serious category. We consider that the learned judge was fully justified in taking a term of 20 years as a starting point. We take account in the case of Saltmarsh that he had not hitherto been sentenced to a custodial term, and of his relatively young age. But we have to take full account of the horrific consequences of putting guns of this sort into circulation; consequences that are all too apparent from recent killings in London and in Manchester. In our judgment, there is no basis for arguing that the starting point, and in the case of Saltmarsh the end point, of 20 years was manifestly excessive.
20.
As to the supplementary point advanced on behalf of Vasinoras in his written application, the learned judge noted that he had pleaded guilty at the first available opportunity, but that he had put in a "false, lying and untrue basis of plea." The learned judge continued:
"The evidence I heard during the trial made it clear to me that the basis was not in accordance with the evidence, and I offered you a Newton hearing, and you very wisely did not pursue that Newton hearing, otherwise would you have lost even more credit, but you promptly abandoned the false and untrue basis, and in the circumstances you too will not receive 30% but a 25% discount."
He continued, however, that a strict mathematical calculation of the sentence would therefore lead to one of 15 years, but,
"I do justice as instinct tells me, having the total feel of the whole case, and in your case the appropriate sentence is one of 14 years imprisonment."
In our judgment, that the further reduction reflected an acknowledgment that whilst Vasinoras was an essential link in the conspiracy his was a somewhat lesser role than that of Saltmarsh and Renka, warranting the further discount of one year. In our judgment that approach cannot be faulted. In those circumstances, we are not persuaded in his case that there is any arguable basis for the contention that the sentence was manifestly excessive.
21.
Before giving our decision in relation to those applications, it is appropriate to turn to the second indictment.
22.
On 23rd January 2006 Richard Saltmarsh appeared at the Crown Court at Coventry and pleaded guilty to an offence of conspiracy to supply a Class A drug. I note that in the course of his trial on the firearms offences the applicant, Saltmarsh, had given evidence in terms that he was a drug-dealer on a substantial scale. On 1st August 2006 John Richardson pleaded guilty to the same offence and on 1st September was sentenced to six years' imprisonment, the 161 days spent on remand to count towards his sentence. On 3rd November Richard Saltmarsh appeared at the Crown Court at Manchester before HHJ Lever who had sentenced him to the term of 20 years' imprisonment on 7th July. He then sentenced Saltmarsh to six years' imprisonment to be served consecutive to the term of 20 years. Richardson appeals against sentence with the leave of the single judge. In the case of Saltmarsh, his application was referred to the full court by the Registrar.
23.
Saltmarsh and Richardson were indicted for conspiracy with a number of others, two of whom were convicted: Thomas Maloney on a plea of guilty, and his brother, Quintin Maloney by a verdict of a jury. Thomas Maloney was sentenced with Saltmarsh at the Manchester Crown Court on 3rd November. He received a sentence of 8 years, less 388 days served on remand. Quintin Maloney was sentenced with Richardson on 1st September at the Crown Court at Warrick and, like Richardson, received a sentence of 6 years less 153 days spent on remand.
24.
Before addressing the grounds advanced on behalf of Saltmarsh and Richardson, it is necessary shortly to consider the roles played by both them and their co-defendants. Thomas Maloney and Richard Saltmarsh were the principal parties to the conspiracy which involved the preparation of large quantities of Class A drugs for retail distribution. The evidence against them related to a period of four months during which they operated as suppliers of Class A drug with the street value of the order of £160,000. Richardson and Quintin Maloney played a lesser role, succinctly summarised by HHJ Coates when passing sentence upon them:
"John Richardson and Quintin Maloney, during the period covered by the indictment you both helped the principal characters in this saga - Thomas Maloney and Richard Saltmarsh - in the conspiracy to prepare vast quantities of Class A drugs for retail distribution. I am quite satisfied that you were both involved because you could provide safe houses in the sense they were not addresses that the police were going to be automatically interested in and you were not people they were going to be automatically interested in. You were of good character.
Your job, Quintin Maloney, was to allow your garage to be used for the storage of these drugs, the garage to which Thomas Maloney had access, and certainly on the night that I heard about I have to conclude that you delivered the drugs to Richardson's address.
Your part, Richardson, on the evidence, was to allow those drugs to be cut and prepared for retail distribution in your kitchen; it happened on more than one occasion during the period covered by the indictment.
You both participated in this conspiracy with your eyes wide open, you both knew the risks you were taking; you both knew the consequences that would result if you were detected.
I have made it quite clear and I make it clear again that you were not as involved as Thomas Maloney and Richard Saltmarsh; it was, in my judgment, having heard the evidence, entirely their enterprise, but they were people in respect of whom the police may well have had interests."
25.
In support of his submission that the sentence imposed upon Richardson was manifestly excessive, Mr Singh essentially advances three arguments: first, that insufficient credit was given for his plea; second, that no account was taken of the principle of parity in passing the same sentence on him as on Quintin Maloney; and thirdly, in any event the learned judge took too high a starting point, given the quantity of drugs involved - 365 grams at 100 per cent purity.
26.
The learned judge addressed the discount for plea in the following terms:
"You, Richardson, pleaded guilty at trial and you are entitled to some credit for that, and I give you some, but not much; the reason for that is that you then gave evidence during the trial, it was inconsistent with your plea of guilty, inconsistent with your case statement, and, indeed, the reality is you committed perjury, but I hope there will be no action taken as a result of it. Your sole purpose was to try and help your girlfriend, who indeed was acquitted, but I am quite satisfied was not acquitted because of anything you had to say to the jury."
27.
The learned judge did not indicate the starting point before discounting for plea. The SGC guidelines recommend a discount of one-sixth for a plea at the last moment. But, as we have already indicated, when called to give evidence by his co-defendant, his girlfriend Sarah Maloney who was the sister of Thomas and Quintin Maloney, the appellant gave an account that was inconsistent with that plea.
28.
In those circumstances the judge was fully justified in giving a lesser discount than the one-sixth recommended in the SGC guidelines. But that issue cannot be addressed in isolation. It is submitted on the appellant's behalf that the failure to give any, or any adequate, discount is demonstrated by the fact that he received the same sentence as Quintin Maloney, and it is therefore necessary to move to the second strand of his case, the parity argument.
29.
Quintin Maloney was not, of course, entitled to any credit for plea. He fought the case. The learned judge was plainly impressed by his personal mitigation, saying this:
"You, Quintin Maloney, I have said on more than one occasion, it is a very sad feature to see you standing before me. You are a talented man, you came over well when you gave your evidence - the jury did not believe you - but you are a talented man, you are well educated, you are a family man, and you had a very good job which paid you very well, you had good prospects, but out of some sort of family loyalty you allowed your brother to use your garage to store these Class A drugs. You have lost a lot because of this conviction."
30.
But it is submitted on behalf of Richardson that he too was, in effect, a man of good character, having a single conviction for simple possession of cannabis, and was in work as a self-employed heating engineer. As to their roles, it was submitted that Quentin Maloney's was, if anything, the greater, as he provided a secure storage for the drugs allowing the safe in which they were stored to be kept at his property. But in any event, it is clear from the sentencing observations and from the manner in which the prosecution put the case that the learned judge treated them as operating at the same level. He was in the best position to judge their relative involvement, having heard the evidence at the trial of Quintin Maloney and the evidence that Richardson gave in the course of that trial. Thus, the position is that they were sentenced to the same term on the basis that their roles in the conspiracy were essentially the same, both having provided safe houses. Yet Quintin Maloney was not entitled to any credit for plea, whereas the judge stated in terms that he was giving Richard some, albeit limited, credit. The question is, therefore, whether the personal mitigation available to Quintin Maloney was such as to cancel out the discount for plea given to Richardson. Whilst Quintin Maloney had clearly made a favourable impression upon the judge in giving his evidence, whereas Richardson manifestly did not, it has to be borne in mind that Quintin Maloney's evidence was rejected by the jury.
31.
In those circumstances, we consider that there is substance to the submission as to parity, tied in closely as it is with the submission in relation to credit for plea.
32.
The third strand of the argument advanced on behalf of Richardson is that the judge took too high a starting point. In this context our attention was directed in the written grounds of appeal to two decisions of this court:
R v Sykes
[2002] 2 Cr App R (S) 83 and
R v Phillips
[2003] 2 Cr App R (S) 14 at 61. In
Sykes
the court allowed the appeal against the sentence of 4 years' imprisonment on a man who had pleaded guilty to permitting premises to be used for supply of a Class A drug. He was a long-term heroin addict who occupied a room in a hostel for the homeless. When police raided the premises they found six people in a room and various small quantities of heroin consistent with personal use by the occupants. The sentence was reduced to 3 years.
33.
In
Phillips
, the court allowed an appeal against a sentence of 4½ years on a man who had allowed his premises to be used for the supply of Class A controlled drugs. The appellant was the tenant of a council house. Police officers stopped and searched a man leaving the premises. He was carrying about £2,000 and 32 wraps of crack cocaine. The appellant was found in the living room of the house, and near him a piece of foil containing an amount of 0.65 grams of crack cocaine. He admitted that over a period of about two months he had allowed two men, including the man arrested, to use his premises to sell cocaine, and was paid in kind with drugs. His sentence was reduced to 3 years. But in both
Sykes
and
Phillips
the offending was of a very different character and scale to that involved in this case, which involved a major conspiracy to distribute commercial quantities of Class A drugs. We do not consider that the decisions provide support for the contention that the starting point was too high or that the sentence was manifestly excessive.
34.
But given the validity of the argument as to parity, we consider that in the case of Richardson the appeal should be allowed. We therefore propose to reduce the sentence to one of 5 years' imprisonment.
35.
We turn then to the renewed application for leave on behalf of Richard Saltmarsh, who was sentenced to 6 years' imprisonment to be served consecutively to the 20-year term imposed for the conspiracy to possess firearms and ammunition with intent. The argument advanced on his behalf is essentially the totality argument. Mr Robson invited us to consider whether, given his age, and taking full account of the criminality involved, a sentence of 26 years' imprisonment was not simply too high.
36.
In our judgment that argument is not made out. The co-defendant, Thomas Maloney, who pleaded guilty at the first opportunity was sentenced to eight years' imprisonment, the sentencing judge having taken a term of 12 years as his starting point. That was entirely appropriate, given the nature and scale of the conspiracy. It is clear that the learned judge did not consider that Richard Saltmarsh's degree of culpability was less than that of Thomas Maloney, and in his sentencing observations quoted at length from the evidence given by Saltmarsh in his trial on the firearms offence as to his drug-dealing. It is not necessary to repeat it. Suffice it to say that it bore out the judge's view that Saltmarsh was operating as "a premier league gangster". The only distinction between Saltmarsh and Thomas Maloney was that Maloney had a previous conviction in dealing in cannabis and shortly before the conspiracy had completed the long custodial part of a term of 3 years 3 months' imprisonment for that offence. But the sentence imposed on Richard Saltmarsh was 2 years less than that imposed on Thomas Maloney. That no doubt reflected to some degree the distinction between them in terms of the previous conviction of Thomas Maloney, but more importantly was clearly a recognition of the totality argument. We are satisfied that the learned judge took full and proper account of the totality of the sentence that he was imposing, and that it cannot be said to have been manifestly excessive. It follows that his application for leave will be dismissed.
37.
LORD JUSTICE KEENE: I make it clear the number of days spent in custody in your client's case to be taken into account will still be take into account for that reduction, Mr Singh. | ```yaml
citation: '[2007] EWCA Crim 876'
date: '2007-03-23'
judges:
- LORD JUSTICE KEENE
- 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:
[2020] EWCA Crim 1194
Case No: B5 202001725
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BASILDON CROWN COURT
HIS HONOUR JUDGE BLACK
T2015-7188
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 11 September 2020
Before :
LADY JUSTICE CARR DBE
MRS JUSTICE MCGOWAN DBE
and
MR JUSTICE MARTIN SPENCER
-
- - - - - - - - - - - - - - - - - - - -
Between :
JAKE TIERNEY-CAMPBELL
Applicant
- and -
REGINA
Respondent
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Michael Mather-Lees QC
and
Colin Witcher
(instructed by
Tuckers Solicitors
) for the
Applicant
Mark Milliken-Smith QC
and
Emma Nash
(instructed by
the CPS Appeals & Review Unit
) for the
Respondent
Hearing date: 9 September 2020
-
- - - - - - - - - - - - - - - - - - - -
JUDGMENT
Lady Justice Carr DBE :
Introduction
1.
On 11 September 2015 the applicant, who is now 25 years old, pleaded guilty in the Crown Court at Southend to a single count of causing grievous bodily harm with intent, contrary to
s. 18
of
the Offences against the Persons Act 1861
("
s. 18
"). The offence involved the applicant repeatedly punching and kicking a man named Daniel Bodimeade, leaving him at that stage in a persistent vegetative state.
2.
On 27 November 2015 the applicant was sentenced in the Crown Court at Basildon by HHJ Black ("the Judge") to an extended determinate sentence of 14 years' imprisonment comprising a custodial element of 10 years and an extension period of four years. His attempt in December 2015 to obtain leave to appeal that sentence was unsuccessful. His co-accused, Hannah Cottom, pleaded guilty to a single count of assisting an offender contrary to
s. 4
of the
Criminal Law Act 1967
and was sentenced to 10 months' imprisonment suspended for 12 months.
3.
This is the applicant's application submitted on 29 June 2020 for an extension of time of some four and a half years for leave to appeal against his conviction. He does so on the basis that his guilty plea was equivocal and/or unsafe, having been entered without full and proper advice. It should thus be quashed and a conviction for causing grievous bodily harm contrary to
s. 20
of
the Offences against the Person Act 1861
(“
s. 20
”) should be substituted pursuant to
s. 3
A of the
Criminal Appeal Act 1968
.
4.
The context for the application is this. Following his conviction and sentence, on 23 February 2019, Mr Bodimeade sadly died. With the consent of the Attorney-General, the applicant has now been charged with his murder. The applicant is due to stand trial on this charge next Wednesday, 16 September 2020. The prosecution will seek to admit the applicant's guilty plea at that trial pursuant to
s. 74(3)
of the
Police and Criminal Evidence Act 1984
.
5.
In these circumstances the Registrar has referred the matter directly to the full court. We have had the benefit of written and oral submissions from Mr Mather-Lees QC and Mr Witcher for the applicant and Mr Milliken-Smith QC and Ms Nash for the respondent in order to assist our determination of the issues arising. Apart from Ms Nash, none appeared below; all are instructed in the forthcoming murder trial.
6.
Reporting restrictions under
s. 4(2)
of the
Contempt of Court Act 1981
apply. It appearing necessary for avoiding a substantial risk of prejudice to the administration of justice in the forthcoming criminal trial, we order that the publication of any report of these proceedings be postponed until the conclusion of those proceedings or further order.
The Facts
7.
Mr Bodimeade, then 39 years old, lived at an address in Brooke Road in Grays with his partner and three year old son. On 13 June 2015 he and his partner went to a family party; they returned to their home address in the early hours of 14 June 2015. Their young son was not at home. Mr Bodimeade took a shower and then went outside his front door most likely, suggested the prosecution, to have a cigarette. His long-term partner, Ms Margaret Mwihaki, confirmed that he was fit, well and uninjured when he did so.
8.
The applicant was not known to Mr Bodimeade. He had been out to a public house that evening with his girlfriend, Kerri Roberts, and some of her friends including Kelsey Ridley and Ms Cottom. During the evening the applicant got himself into a state of extreme intoxication through drink. Video footage from a mobile phone showed the applicant's high level of intoxication. Ms Ridley described the applicant's behaviour as erratic; he would swing from being nice to aggressive, squaring up to people, and then being nice again.
9.
After leaving the public house and on their way back to Ms Robert's address, the applicant and Ms Roberts had a brief argument. The applicant ran off. Shortly thereafter, around 3.15am, the applicant came across Mr Bodimeade standing outside. Whatever the trigger or motive, the applicant proceeded to launch an attack on him.
10.
Having heard someone shout for help, and thinking it could be the applicant, Ms Ridley and Ms Roberts ran down Brooke Road. Ms Ridley said that she saw Mr Bodimeade lying on the pavement with his back half up against the wall. The applicant was standing over him and kicking him repeatedly (she said at least ten times) to the upper chest area as if he was "kicking a football". The kicks were so hard that they caused Mr Bodimeade's body to move on each impact. Ms Roberts shouted the applicant's name. The applicant paused, looked at Ms Ridley and Ms Roberts with a look described by Ms Ridley as "evil" and then continued to attack Mr Bodimeade. Ms Ridley said that she saw the applicant punch Mr Bodimeade around five times to the head "really hard", causing his head to hit the wall with each punch.
11.
The attack only ceased when Ms Roberts ran over and physically pulled the applicant away. The applicant immediately said "I think I've killed him, I think I've killed him", before walking down the road. Ms Ridley and Ms Roberts remained at the scene and called an ambulance and administered first aid. Whilst they were there, the complainant's partner ran out of the house having heard a female say "You can't leave him like that, call an ambulance". Ms Mwhihaki described seeing him on the floor with blood all over his face and flowing from the back of his head down a drain. She heard blood gurgle from his mouth and a snoring type of sound. Paramedics arrived and took Mr Bodimeade to hospital.
12.
Ms Ridley was still present when the police arrived. She made a statement that day saying that she had found Mr Bodimeade on the floor and did not know how his injuries had occurred. She subsequently admitted, voluntarily, that the statement was a lie through fear. After the incident Ms Roberts contacted her and told her to meet her at Ms Cottom's address. When Ms Ridley arrived, the applicant was also present. Ms Roberts asked Ms Ridley what she had told the police and then made it clear that they would know if she told the police anything because she was the only other person in a position to do so. Whilst at the address, the applicant asked Ms Cottom to dispose of his clothing. Ms Ridley gave a second statement on 24 June 2015 in which she stated that she had seen the applicant attack Mr Bodimeade as set out above.
13.
Ms Cottom was arrested on 1 July. She initially told the police she had not seen the applicant, however the next day she contacted the police and told them she had lied and that the applicant had asked her to dispose of his clothing and she had agreed. She told
the police she had hidden the applicant's clothing in a certain metal bin. However, investigations showed that no such bin in fact existed. Ms Cottom also admitted texting Ms Roberts twice after the police contacted her on 25 June telling Ms Roberts to get the applicant out of the area as soon as possible.
14.
Mr Bodimeade was found to have lacerations to his right temple, eyebrow and left upper lip. The injuries to his head and brain were multiple and catastrophic. He suffered a traumatic subarachnoid haemorrhage in the left frontal convexity as well as multiple fractures of the facial bones, nose, zygoma and left orbit. His initial Glasgow coma score was three out of 15, the lowest possible score. He was admitted to intensive care where he required prolonged ventilator support with a feeding tube for his nutrition and hydration. He suffered several episodes of sepsis and remained unconscious. An EEG examination showed significant global cerebral dysfunction. On 5 August 2015 he was transferred to a rehabilitation unit to manage and assess his prolonged disorder of consciousness. As of 27 November 2015 he remained unconscious and was described as being in a persistent vegetative state.
The applicant's arrest, charge, guilty plea and sentence
15.
The applicant was arrested for attempted murder on 27 June 2015. He was attended at the police station by a solicitor, Mr Christopher Whitcombe, of Jerman Samuels and Pearson LLP. On advice he went “no comment”. The notes record that Mr Whitcombe gave 108 minutes of advice and continue as follows:
“
The Law/Elements of Offence
Fully explained law, evidence and seriousness of the case
Possible Defence(s)
Lack of intent to kill/cause gbh
Client’s instructions
…
Client accepts arguing with victim, who would not give him a cigarette and was rud[e]. Pushin[g] match occurs, victim swings at client, who punches him back. Punches traded, causing victim to fall to floor and hit his head. Client then kicked him once to area of the face, which caused the head to go back and hit the wall. Accepts the kick was not in self defence, as victim on the floor and he could have withdrawn. Adamant that neither girlfriend nor Ridley would have seen it as they were at the bottom of the road.”
16.
After interview the applicant was charged with causing grievous bodily harm with intent contrary to
s. 18
. Mr Whitcombe’s notes record the charge and then state:
“
Advice/Explain Charge
Yes”
17.
The applicant then instructed Mr David Forsyth (“Mr Forsyth”), a solicitor-advocate and joint senior partner of Goodhand & Forsyth LLP, based in Redhill, Surrey. Mr Forsyth was a criminal practitioner with over 30 years’ experience at the time. He had held higher rights of audience since 2015. The applicant selected Mr Forsyth because Mr Forsyth had acted previously for many years for the applicant’s mother.
18.
The applicant appeared first at the Magistrates' Court on 29 June 2015. Mr Forsyth attended on him at court. His attendance note records him spending some 45 minutes in preparation, 40 minutes in court and 2 hours advising the applicant. Bail was refused. Mr Forsyth instructed counsel to renew that application in the Crown Court at the preliminary hearing listed for 8 July 2015. On that application it was indicated that the applicant denied the
s. 18
charge. The renewed application for bail was also unsuccessful.
19.
The applicant pleaded guilty by videolink on a basis at the plea and case management hearing which took place on 11 September 2015. Again, Mr Forsyth attended that hearing and on the applicant. His attendance note records that he spent 35 minutes attending on the applicant outside court.
20.
In his basis of plea at that stage the applicant accepted "full responsibility" for the injuries sustained by Mr Bodimeade. But he did not accept that he kicked Mr Bodimeade at least ten times and any kicks were to the body and not the head. He accepted punching Mr Bodimeade but denied doing so when Mr Bodimeade was on the ground. He stated that he very much regretted the incident.
21.
The matter was adjourned to 30 September 2015 in order to allow the prosecution to consider the basis of plea. By letter dated 23 September 2015 the prosecution indicated that it did not accept the applicant’s basis of plea, the main concern being the applicant’s denial that he punched Mr Bodimeade whilst Mr Bodimeade was on the ground.
22.
At the hearing on 30 September 2015, again attended by Mr Forsyth, there was a further discussion as to the applicant's basis of plea. Mr Forsyth’s attendance note records that Mr Forsyth spent around one hour and 10 minutes advising the applicant on this occasion.
23.
Based on Ms Ridley's second statement, the prosecution did not accept there were fewer than ten kicks or that the applicant had not punched Mr Bodimeade when on the ground. That latter issue was deemed material to sentence. The applicant abandoned his position on that issue. As to the number of kicks, the Judge took the view that a Newton hearing to resolve this dispute was unnecessary. The kicks were an aggravating factor; the precise number was immaterial. It was the subsequent punching when Mr Bodimeade was unconscious on the ground that led to the bleed on the brain and the traumatic injuries. Determination of the number of kicks would not make a material difference to the sentence.
24.
The full sentencing hearing took place on 27 November 2015. Mr Forsyth attended to mitigate on behalf of the applicant. By this stage a Pre-Sentence Report was available. Amongst other things, the report recorded that the applicant had stated in interview that:
i)
Mr Bodimeade punched him twice before he struck back;
ii)
He retaliated by punching Mr Bodimeade on five occasions;
iii)
He accepted that he committed the offence although was still unsure how things "got out of hand";
iv)
He did not kick at any point or punch Mr Bodimeade whilst the latter was on the ground;
v)
He pleaded guilty "on the advice of his solicitor and not to argue the point of him not kicking Mr Bodimeade" (sic).
25.
The Probation Officer's view was that the applicant "significantly minimised the seriousness of his actions and sought to blame [Mr Bodimeade] in interview".
26.
The Judge raised the comment by the applicant as recorded in the Pre-Sentence Report to the effect that he had initially acted in self-defence. The Judge asked whether that position was maintained. Mr Forsyth responded to the Judge's query as follows:
"…..no. He stands by what he said in the basis of plea, that he takes full responsibility for what he's done, and he stands by the fact that he not only kicked the victim, but he also punched the victim… I appreciate on its face it could be interpreted as somewhat as an equivocal situation, but no,… he stands by his pleas".
27.
Further, the applicant had written a letter by himself in advance of the hearing to Mr Bodimeade's family expressing his remorse ("the letter of remorse"), relied upon by way of mitigation. In it he wrote:
"I have no excuse and I take full responsibility….it makes me physically sick knowing what I have done to another person. I cannot believe the amount of injuries I have caused and the condition in which Daniel had been left….I really had not meant to cause the amount of harm I have…..What happened that night was a drunken moment of madness which had devastating consequences…"
Trial advocate's response
28.
Given the express criticism being made of Mr Forsyth, the applicant waived privilege and responses have been sought from Mr Forsyth pursuant to the guidance of the Court of Appeal in
R v McCook
[2014] EWCA Crim 734
;
[2016] 2 Cr App R 30
; [2015] Crim LR 350;
R v Lee (James)
[2014] EWCA Crim 2928
; and
R v McGill
and others
[2017] EWCA Crim 1228
. Solicitors' notes have been provided and Mr Forsyth has responded, in summary stating as follows:
i)
He held five video conferences (on 2 July, 12 August, 3 September, 8 October and 17 November 2015) with the applicant and three conferences at court (on 11 September, 30 September and 27 November 2015) in total with the applicant when detailed consideration was given to the evidence against the applicant and his intended plea;
ii)
The applicant was sent Ms Ridley's statements (under cover of letter dated 29 June 2015). He specifically accepted her evidence, namely that he had kicked Mr Bodimeade on a number of occasions (though not to the head) and that he had punched Mr Bodimeade on around five occasions whilst on the ground;
iii)
The applicant was fully advised on the ingredients of the
s. 18
offence and that it was necessary for the prosecution to prove that he intended to cause really serious harm. He accepted from the evidence that the gravity of the injuries and the manner of their infliction were such that they could only have been caused by someone who intended to cause really serious harm. Even if the applicant did not specifically assert in terms that he intended to cause serious harm it was apparent to the applicant that that was an ingredient of the offence which the prosecution had to prove and that was what he wished to plead guilty to;
iv)
The applicant was "fully aware of the prospect that in pleading guilty to the
s. 18
offence he would be admitting murder in the event that [Mr Bodimeade] were to die". There is a note on file dated 7 September 2015 from Mr Goodhand, Mr Forsyth's joint senior partner, stating that this was a "clear
s. 18
- there must be some risk that this becomes a murder case given the final para of the medic's statement". The applicant was advised that his plea to
s. 18
would be admissible at any subsequent murder trial;
v)
The advice was not confirmed in writing, nor was there any written proof. The applicant was clear in his instructions and in the circumstances no endorsement was required. There was no occasion when the applicant indicated that he did not intend to cause serious injury;
vi)
Reference was made on several occasions to the Sentencing Council Guideline and categorisation of the offence. The applicant knew that the offence was liable to be classified as a category 1 case with a starting point of 12 years' imprisonment and a range of 9 to 16 years. He was advised to plead guilty in order to secure a lesser sentence, advice which was "perfectly proper". The applicant was advised that it remained his choice and that if he disputed anything alleged against him, he would be entitled to a trial;
vii)
The applicant's revised basis of plea was not accepted but it was agreed that the disputed issue would not make a material difference to sentence;
viii)
Mr Forsyth's comments are based on his recollection of the case (which he remembers well because of the serious nature of the allegation), from his notes as supplied and on the basis of his usual practice.
Grounds of appeal
29.
For the applicant, Mr Mather-Lees submits that the applicant's plea was equivocal. Further, it was entered without full knowledge as to the consequences of that plea, such that it can properly be termed non-deliberate with ambiguity. The conviction that flows can be termed unsafe in all the circumstances.
30.
First, at no time did the applicant admit that he intended to cause really serious injury to Mr Bodimeade or give instructions to that effect. This is consistent with the police
station notes where "lack of intent to kill/cause GBH" is noted under the heading of "Potential Defences". There is no contemporaneous record of such an admission and no endorsement as to plea or the requisite intent. Mr Forsyth's response is said to be ambiguous on the point. The applicant's position that he pleaded on advice is borne out by the contents of the pre-sentence report which state as much. Reliance is placed on the letter of remorse where he stated that he "really had not meant to cause the amount of harm that I had". It is submitted that there are documents showing a continuing theme supportive of his contention that he pleaded guilty in order to secure credit on sentence and without accepting the necessary intention for a
s. 18
offence. Reference is made, amongst other things, to an undated note in Mr Forsyth’s file recording instructions to the effect that he and Mr Bodimeade pushed and punched each other. Mr Bodimeade sustained no significant injury but fell and hit his head on the floor. Ms Roberts and Ms Ridley then came around the corner.
31.
Secondly, once Mr Forsyth had a Pre-Sentence Report that was at odds with a guilty plea, that addressed a
s. 20
offence, advanced self-defence and made no reference to the applicant having an intention to cause really serious physical harm, coupled with the letter of remorse, Mr Forsyth should have withdrawn.
32.
Thirdly, the applicant is said to have been ill-advised. He had no knowledge as to the implications of any plea if Mr Bodimeade were later to die. There is no record of the applicant having been advised in this regard. The court is invited to reject Mr Forsyth's belief to the contrary. Had the applicant known the consequences of his plea in the event of Mr Bodimeade dying, he would never have accepted the advice to plead guilty to secure credit. Nor was the issue of causation of the neurological trauma explored, something which was essential in a case of this gravity.
Grounds of opposition
33.
For the respondent, Mr Milliken-Smith submits that the application is without merit. It arises simply because of Mr Bodimeade's death and not because of any meritorious criticism of the applicant's previous solicitor. The lack of any query by the applicant until after the murder charge was laid makes it clear that the applicant’s guilty plea was made voluntarily and with the benefit of proper advice.
34.
As for intent, the applicant pleaded guilty of his own volition. The wording of the offence was clear. The case against him was strong. Ms Ridley's evidence and the medical evidence were clear. An intention to cause really serious bodily harm could be inferred. Further, there was clear evidence that Mr Bodimeade had no injuries before the attack.
35.
Mr Forsyth was clear that the applicant was unambiguous with his instructions. Further, the applicant sat through four hearings (including at the Magistrates' Court) during which the offending was outlined and discussion took place about his basis of plea. The privileged material provided does not assist the applicant, nor does the Pre-Sentence Report or letter of remorse. The evidence on the Mr Forsyth’s file, the nature of the facts and concessions made during the course of the hearings demonstrate the applicant’s understanding of the issues he faced and the question of intention to cause really serious harm.
36.
The cause of the injuries was plain from the evidence; there was evidence of Mr Bodimeade's health before the attack and after. Further, the applicant's own grounds state that causation was not an issue, only intention.
Evidence for the purpose of the appeal
37.
Albeit that no written evidence was served to support the applicant's case on this application, the case advanced on his behalf through submissions raised a number of factual disputes, centrally:
i)
Whether or not the applicant understood that, in order to be guilty, he needed to have intended to cause really serious bodily harm at the time of his attack and admitted such intention;
ii)
Whether or not the applicant was advised of the consequences of his guilty plea to the
s. 18
offence in the event that Mr Bodimeade were to die.
38.
There was also a (lesser) dispute as to the number of video conferences held between Mr Forsyth and the applicant.
39.
The applicant gave oral evidence, in brief summary, as follows. He only ever had two video conferences with Mr Forsyth. He saw Mr Forsyth when he went to court. He intended to cause “no harm whatsoever” to Mr Bodimeade. He said so to the probation officer and to Mr Forsyth on a number of occasions. He was not “totally” advised about intent. When he was told that for the
s. 18
offence to be committed he had to have intended to cause really serious physical harm, he had responded by saying that he was sure that that did not apply to him. He went on to say that the offence had not been explained to him “whatsoever”. He stated that he was told on almost every occasion that he saw Mr Forsyth that he would receive a sentence of nine years’ imprisonment, reduced for an early guilty plea to six years’ imprisonment of which he would serve only three in custody. He never thought that Mr Bodimeade would die and was never told the consequences for him of a guilty plea to the
s. 18
offence if that were to occur. He only punched Mr Bodimeade twice and kicked him once. He knew that on a Newton hearing any disputed facts would be determined. When he pleaded guilty on 11 September 2015 he was “not aware totally” of what he was being charged with; he thought that he had no alternative. He tried every time to argue with Mr Forsyth that he did not intend to cause any harm. He said that he said to Mr Forsyth:
“…this is not right. I am being charged with intent to cause GBH. Mr Forsyth did go into
s. 20
and explained it “a little bit”. He said that it was the same as a
s. 18
offence but without the intentional part. I said
s. 20
was what I would agree to…”
40.
He stated that when he pleaded guilty he wanted to say that he had not intended to cause really serious harm but felt that it would be rude to interrupt.
41.
The applicant was cross-examined. Again, in summary, he said that he could not remember how his basis of plea came to be altered. He did not believe it was because he had discussed it with Mr Forsyth. He did not complain to Mr Forsyth between 30 September and 27 November 2015 because he was not thinking clearly. He stated that
Mr Forsyth advised him that the offending would be “high end” category 2 or “low
end” category 1 with the Sentencing Council Guideline as maximum. Mr Forsyth did not explain dangerousness (for the purpose of
ss. 226
A of the
Criminal Justice Act 2003
) (“dangerousness”), something about which he was not warned. When dangerousness was mentioned by the Judge on 30 September 2015, the applicant stated that he did not understand what was going on in court. He would never have pleaded guilty to the
s. 18
offence if he had known would that entailed.
42.
Mr Forsyth gave oral evidence in a calm, low-key and professional manner. He confirmed the accuracy of his written responses as set out above (subject to minor modification of the court hearing dates). He confirmed that he had explained the difference between
s. 18
and
s. 20
offending to the applicant before he entered his guilty plea. Realistically,
s. 20
was not an option, as reflected in the notes made by Mr Goodhand, which Mr Forsyth read on or about 7 September 2015 and before the applicant pleaded guilty. The applicant never said to him that he did not intend to cause really serious harm. He advised the applicant on the merits but left the decision whether or not to plead guilty to him. He “absolutely” did not advise the applicant that he would receive a sentence of 6 years (after credit for guilty plea from a term of 9 years). Even at an early stage he was referring to a category 1 starting point of 12 years. As for a record of admission, Mr Forsyth referred to his manuscript notes in the margin of Ms Ridley’s second statement which recorded the applicant accepting the central parts of her evidence, namely that she saw him kicking Mr Bodimeade on a number of occasions (though not to the head) and punching Mr Bodimeade on around five occasions whilst on the ground. The applicant did not state that Ms Ridley was not present. Mr Forsyth said that he advised the applicant on more than one occasion before his guilty plea as to the potential for a murder charge and his liability as a result of a guilty plea to the
s. 18
offence. The applicant committed to a guilty plea in the course of discussions with Mr Forsyth on 3 and 11 September 2015. Mr Forsyth did not accept the applicant’s version of events on this application.
43.
We have no hesitation in preferring the evidence of Mr Forsyth over that of the applicant on any material areas of factual dispute. The applicant was a wholly unreliable witness. By way of example only;
i)
He accepted that he was advised about the necessary intent for a
s. 18
offence but in the same breath said that he was not advised about the
s. 18
offence at all;
ii)
Before oral evidence, Mr Mather-Lees informed the court that the applicant’s case was that the distinction between a
s. 18
offence and a
s. 20
offence was not explained to him. In oral evidence, however, the applicant stated that that distinction was in fact explained to him (and, we add, accurately so);
iii)
The suggestion that the applicant was unaware of, and not advised, as to dangerousness is incredible. Dangerousness was mentioned in open court on 30 September 2015. It was the reason why a Pre-Sentence Report was commissioned and expressly addressed in that report. Moreover, once the applicant had received an extended sentence based on a finding of dangerousness, he made no complaint about the advice that he had received, including in the context of his application for leave to appeal against sentence (including against the finding of dangerousness).
44.
We set out our key findings on the facts so far as necessary below.
Analysis
45.
The principles on which a defendant may be permitted to go behind a plea of guilty are well-established: for a useful summary see the judgment of Lord Hughes in
R v Asiedu
[2015] EWCA Crim 714
at [19] to [25]. The trial process is not a "tactical game" (see [32]). A defendant who has admitted facts which constitute an offence by an unambiguous and deliberately intended plea of guilty cannot ordinarily appeal against conviction, since there is nothing unsafe about a conviction based on his own voluntary confession in open court. A defendant will not normally be permitted on appeal to say that he has changed his mind and now wishes to deny what he has previously admitted in the Crown Court.
46.
Apart from pleas which are equivocal or unintended, the two principal exceptions are
i)
whether the plea was compelled as a matter of law by an adverse ruling by the trial judge which left no arguable defence to be put to the jury and ii) where, even if on the admitted or assumed facts the defendant was guilty, there was a legal obstacle to his being tried for the offence.
47.
Beyond that, there is the general jurisdiction under
s. 2(1)
of the
Criminal Appeal Act 1968
. If a defendant who has pleaded guilty can bring himself within that section, the court will be bound to quash the conviction (see
R v Boal
[1992] 1 QB 591
;
[1992] 95 Cr App R 272
). However, the fact that the defendant had been fit to plead, known what he was doing, intended to plead guilty and had done so without equivocation and after receiving expert advice will be highly relevant to the question of whether or not the conviction is unsafe (see
R v Lee (Bruce)
[1984] 1 WLR 578
;
[1984] 79 Cr App R 108
).
48.
Where a defendant enters a guilty plea and subsequently appeals on the basis that the plea was entered following erroneous legal advice, the facts must be so strong as to show that the plea of guilty was not a true acknowledgement of guilt; the advice must have gone to the heart of the plea (see
R v Saik
[2005] 1 Archbold News 1). However, a conviction based on a plea of guilty may be held to be unsafe on account of erroneous legal advice, or a failure to advise as to a possible defence, notwithstanding that the advice may not have been so fundamental as to have rendered the plea a nullity. But the court will only intervene if it believes that, with the benefit of correct advice, there would probably have been an acquittal and that therefore an injustice has been done. In
R v K
[2017] EWCA Crim 486
; [2017] Crim LR 716 (at [12]) this court emphasised the observations in
Boal
(supra) to the effect that this court will only intervene where it believes that the defendant has been deprived of what was in all likelihood a good defence which would quite probably have succeeded and thus a clear injustice has been done: "[i]t would not happen often".
49.
We conclude that it is not arguable that the applicant's guilty plea was equivocal or that his consequent conviction is unsafe in all the circumstances.
50.
A plea will only be equivocal if its terms include an assertion or qualification which amounts to a denial of an essential ingredient of the offence. There is nothing on the facts here that comes close to such an assertion or qualification.
51.
The applicant points to the record of what he said in his interview with the probation officer for the purpose of the pre-sentence report to the effect that it was Mr Bodimeade who first punched him (twice). This is to place undue weight on the applicant's version
of events in interview. As the respondent points out, the applicant has given variously inconsistent versions of events. His defence case statement served in the current murder proceedings is not consistent with what is recorded in the pre-sentence report. Further, the Probation Officer was of the view that the applicant was deliberately minimising his gravity of his offending. That aside and in any event, the Judge's query arising out the pre-sentence report related to the suggestion of a defence of self-defence (and even then only at the outset), not lack of intent. The two issues are not intrinsically linked, as Mr Mather-Lees submits. And Mr Forsyth, in the presence of the applicant, made it crystal-clear that self-defence was not pursued in any way by way of defence - nor could it realistically ever have been pursued. Further, the Pre-Sentence Report records the applicant "accept[ing] that he committed this offence".
52.
The applicant also points to the letter of remorse. Whilst the applicant may say that he did not intend the full extent of the injuries that he in fact caused (as he said in his letter of remorse produced in mitigation), that is in no way the equivalent of meaning that he did not intend to cause really serious bodily harm. The letter of remorse was not in any way at odds with an admission of the necessary intent.
53.
We turn then to the question of overall safety of the conviction. The thrust of the application is that the applicant was so poorly advised and represented that his conviction on his unequivocal guilty plea is unsafe. He never admitted the necessary intent to cause really serious bodily harm. His instructions to the effect that he did not have such intention were ignored or overridden. He did not know that, were Mr Bodimeade to die, his admission to intent to the
s. 18
offence would amount to an admission of the necessary intention for the offence of murder.
54.
We are not persuaded that there is any arguable merit that there is any overarching lack of safety of conviction.
55.
There was a compelling, if not overwhelming, case on the question of intention, given, amongst other things, i) the nature of what was a vicious and sustained attack involving blows to Mr Bodimeade's head as well as his upper body ii) the fact that the applicant did not cease the assault of his own accord and iii) the evidence as to what the applicant said in the immediate aftermath, namely that he believed that he had killed Mr Bodimeade.
56.
We are sure that the applicant was in no doubt as to the scope of his plea of guilty, and that he knew that he was thereby admitting an intention to cause really serious harm to Mr Bodimeade at the time of his attack, and that he pleaded guilty of his own free will.
57.
We have set out above our overall finding as to the applicant’s credibility in his evidence on this application. Beyond that;
i)
The Police Station Notes record that the applicant was fully advised as to the law in the context of a contemplated charge of attempted murder or under
s. 18
. He was fully on notice that an ingredient of a
s. 18
offence was an intention to cause really serious physical harm. The applicant accepted that it was discussed on this occasion. It was also clear that he was aware of the necessary intention for attempted murder. The fact that lack of intent to kill or cause grievous bodily harm was noted as a potential defence does not assist, not least since it was a comment made at a very early stage in the proceedings;
ii)
The relevant intention is spelt out clearly in the ingredients of the offence set out on the face of the indictment in the words of the count to which the applicant responded and pleaded guilty;
iii)
The applicant is literate, eloquent and was fully engaged in the criminal process, as evidenced for example by his original basis of plea. He was an apprentice in employment at the time of the attack. He attended several court hearings where the evidence and detail of the case were ventilated. He was there to hear Mr Forsyth spell out his position to the Judge by reference to the pre-sentence report and made no intervention, nor did he indicate any disagreement. In his evidence before us he demonstrated a good understanding of what a Newton hearing was and of the relevant Sentencing Council Guideline;
iv)
We find that the applicant was advised fully by Mr Forsyth over the course of several video
i
and 2 court conferences where detailed consideration was given to the evidence against him and his intended plea. The applicant was sent the prosecution witness statements, including those from Ms Ridley. The applicant was, as Mr Forsyth says and indeed as the applicant accepted in his oral evidence, fully aware that an essential ingredient of the
s. 18
offence was an intention to cause really serious bodily harm;
v)
We accept the evidence of Mr Forsyth that the applicant was clear in his instructions and knew precisely to what he was pleading guilty. Mr Forsyth was a qualified solicitor with over 30 years' experience. He had a good recollection given that the case stuck out in his mind because of the gravity of the offending. There is evidence of careful consideration by him of his brief. So for example he spoke with the author of the Pre-Sentence Report. He was perfectly prepared to take issue on behalf of the applicant where necessary, for example mounting his application for leave to appeal against sentence. Mr Goodhand also read the file and made notes to the effect that this was a "clear"
s. 18
offence. It is fanciful to suggest that he would somehow have ignored and/or overridden any instructions from the applicant to the effect that he did not have the necessary intention;
vi)
The lack of written record only helps the applicant so far in circumstances where there is no written record of any of the advice which it is common ground was given to the applicant before he entered his guilty plea. It is common ground that the applicant was advised, for example, that it would be in his interests to plead guilty. So this is not a case of there being a record of the advice given which is silent on the question of intention, which could be said to give rise to an inference that advice on the question of intention was omitted;
vii)
The fact that the applicant did not raise any concerns in relation to his guilty plea until after Mr Bodimeade's death is significant. He had the opportunity both in the context of his application for leave to appeal sentence and in the following years in custody to raise the issue. He did not do so.
58.
Not only did the applicant write the letter of remorse, he also entered a basis of plea in which he accepted "full responsibility" for Mr Bodimeade's injuries. There was a dispute as to the number of times that he kicked Mr Bodimeade whilst unconscious. But that was immaterial given that he accepted i) that he did kick Mr Bodimeade (to
the chest) and more importantly ii) Miss Ridley's account that he punched Mr Bodimeade around 5 times to the head whilst he was unconscious and with such force that Mr Bodimeade's head hit the wall on each occasion. We find the manuscript notes made by Mr Forsyth on Miss Ridley’s second statement recording the applicant’s acceptance of her evidence compelling. It was this punching that caused the brain damage. We see no arguable merit in the complaint that expert evidence on causation was not obtained on behalf of the applicant. There was clear evidence of the attack and of the resulting injuries consistent with the attack as described by the witnesses. There was no sensible basis for contending that the applicant's actions were not responsible for causing all of Mr Bodimeade's head injuries.
59.
It was Mr Forsyth's duty to advise the applicant on the merits of the case on the evidence against him. The applicant was advised, unsurprisingly, that it was in his interests to plead guilty. As already indicated, there was a compelling, if not overwhelming, case against him and he would receive the benefit of a significant reduction in sentence by way of credit for his plea. It is misconceived to suggest that a defendant who pleads guilty on the basis of his lawyer's advice as to the strength of the evidence and the advantage to be gained in relation to sentence can then assert that his guilty plea was equivocal because it was entered merely because of the lawyer's advice.
60.
Further, ignoring for present purposes the question of whether or not he was under a duty to do so, we find that Mr Forsyth did advise the applicant that his plea to the
s. 18
offence would leave him open to a conviction of murder should Mr Bodimeade die, as has sadly happened. We accept Mr Forsyth's evidence in this regard. There was focus throughout the proceedings as to whether or not Mr Bodimeade would survive. The applicant was charged originally with attempted murder. This finding is consistent with the notes on file dated 7 September 2015 from Mr Goodhand prepared for Mr Forsyth's "assistance". From these it is apparent that the applicant's solicitors were very much alive to the risk that this could become a murder case given the medical evidence available. The possibility of a murder charge was also mentioned in open court on 11 September 2015 when the applicant entered his guilty plea. The letter from Mr Forsyth dated 25 March 2019 notifying the applicant of Mr Bodimeade's death does not suggest that the possibility now of a murder charge would be a shock or unexpected to the applicant (although the death so many years after the attack was).
61.
But even if the applicant was not so advised, we do not consider that that would render his conviction unsafe. It would not undermine his admission of the necessary ingredients of the
s. 18
offence. Either he committed the
s. 18
offence or he did not. The issue did not go to the heart of the plea; rather it ran parallel to it.
62.
In short, we accept the respondent's submission that this appeal arises out of the death of Mr Bodimeade and the consequent murder charge, as opposed to any underlying substantive merit in the proposition that the applicant's plea to the
s. 18
offence was equivocal or his conviction unsafe. It was clear from the applicant’s evidence before us, including from his demeanour and lengthy and exercised answers, that his overarching concern is and always has been the length of time that he would or may have to serve in custody. This application is a misconceived reaction to the potential conviction and resulting sentence that he now may face on a charge of murder. The applicant cannot now attempt to unravel his guilty plea because of the potential consequences that he faces in the circumstances which have now arisen. There has been no arguable injustice, let alone a clear one.
Extension of time
63.
An extension of time will only be granted where there is good reason to give it and ordinarily where the defendant will otherwise suffer significant injustice: see
R v Hughes
[2009] EWCA Crim 841
at [20]). The principled approach is to grant an extension if it is in the interests of justice to do so: see
R v Thorsby
[2015] EWCA Crim 1
. The court will examine the merits of the underlying grounds before decision whether to grant an extension of time.
64.
In circumstances where we have found no arguable merit in an appeal, and where the delay in question is very significant, we do not consider it appropriate to grant the necessary extension of time.
Conclusion
65.
For all these reasons, we dismiss both the application for leave to appeal and for an extension of time.
i
The precise number may not matter but there were at least two video conferences before the applicant entered his guilty plea: one on 12 August and one on 3 September 2015. | ```yaml
citation: '[2020] EWCA Crim 1194'
date: '2020-09-11'
judges:
- HIS HONOUR JUDGE BLACK
- LADY JUSTICE CARR DBE
- MRS JUSTICE MCGOWAN DBE
- MR JUSTICE MARTIN SPENCER
``` |
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 434
Case No:
2008/00608 B3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SOUTHWARK
HH Judge Goymer
T20067499
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
09/03/2009
Before :
LORD JUSTICE THOMAS
MR JUSTICE GRIFFITH WILLIAMS
and
SIR ROBERT NELSON
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
Respondent
- and -
Wayne Lee Harris
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Jonathan Edwards
for the Appellant
Miss Grace Ong
for the
Respondent
Hearing date: 19 November 2008
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Thomas:
1.
On 17 December 2007 the appellant, then aged 38, was convicted of false imprisonment, assault occasioning actual bodily harm and on the second of two counts of rape before His Honour Judge Goymer and a jury at Southwark Crown Court. He was sentenced the following day to 8 years imprisonment for the rape with concurrent sentences on the other offences. The appellant was acquitted of the first count of rape; other counts on the indictment were ordered to lie on the file. He appeals against his conviction by leave of the Single Judge on two issues:
i)
The ruling of the judge refusing an application to cross-examine the complainant under
s.41 of the Youth Justice and Criminal Evidence Act 1999
.
ii)
The judge’s decision to admit bad character evidence in respect of the appellant.
The facts
2.
The complainant was a teacher. On 1 July 2006 she travelled from her home in Hackney to the West End of London. There she drank considerable quantities of alcohol. On her way back home in the early hours of Sunday, 2 July 2006 she met the appellant who was living on the streets. She had never met him before. She invited him back to her flat in Hackney. On the way back to her flat they stopped at a convenience store to buy alcohol. They met a further person, unknown to both of them, who happened to be Polish and who also was living on the streets in Hackney. He was invited to accompany them to the flat.
3.
After they arrived back in the flat, the alcohol which had been purchased was consumed. It was common ground that sexual intercourse took place between the appellant and the complainant on two separate occasions between the time they returned to the flat in the early hours of Sunday, 2 July 2006 and 8.35 a.m. that morning. The time of 8.35 a.m. is taken because police had attended at the flat at that time after telephone calls from the complainant’s neighbours about noise and disturbance at her flat.
4.
When the door was opened to the police, the complainant ran from the flat naked from the waist down screaming that she had been kidnapped and raped by the appellant.
The evidence
5.
The complainant’s evidence was
i)
They had returned to her flat by taxi. After they had arrived, all was well for a while. The appellant had then started looking round for more alcohol and seemed demanding. She gave him her bank card and wrote down her pin number so he could go to the cash point to withdraw money with which to buy more alcohol. When the appellant returned, he was aggressive and was screaming at her that there was no money in her account; he looked slightly manic. He started rummaging around the kitchen looking for alcohol and found a bottle of liqueur. She did not want it opened but he nevertheless opened it and swigged from it.
ii)
He then went to her kitchen drawer where her knives were kept and got them out. He wrestled her to the ground and got on top of her. She fought back and punched him three times in the face causing his nose to bleed. He got hold of her by her wrists and neck and pinned her to the floor. He held her throat with one hand while pulling her trousers down with the other. He then used a pair of scissors to cut her knickers on either side of the hips.
iii)
The appellant then asked for a belt which he used to tie up the Polish man. The complainant made a run for the door to try to escape, but a large barbeque fork had been forced into the chain to prevent the door being opened. The appellant dragged the complainant back into the flat and wrestled her to the ground again. He threatened to kill her and demanded that she put her legs up. He then penetrated her vagina with his penis a number of times while they were both on the floor. He continued to beat her and she continued to fight back. He then forced her to take a bath in hot water and demanded she clean herself and he also scrubbed her very hard between her legs.
iv)
After she got out of the bath the appellant’s behaviour changed. He collapsed on the hall floor and started sobbing and crying. She tried to assure him that all would be OK. She tried to escape and got out of the flat, but he went after her, dragged her back in and became manic. He made her take her clothes off, and got the knives. He pushed her onto the edge of the bed and threatened both vaginal and anal sexual intercourse with her. He gripped her round her throat while he held a knife against her face and then her genital area. He verbally abused her before again penetrating her vagina with his penis whilst he held the knife to her face. On neither occasion did the appellant use a condom.
v)
The appellant then looked around for food and said there was enough there for him to keep her and the Polish man hostage for 5 days. He instructed her to wash her clothes in the washing machine. She lost all track of time. When the police arrived she ran out in the manner which we have described.
vi)
In her cross-examination, she denied that she had consented to sexual intercourse with the appellant. She said that she had led an openly homosexual lifestyle since she was 21 and was not interested in sex with men. She had never previously invited strangers to her flat. She accepted that she had been taking anti-depressants and that she had in the past drunk excessively.
6.
The other evidence adduced by the Crown included:
i)
One of the police officers who examined the flat some hours later in the day had found a piece of paper with what appeared to be a pin number on it. He had also found various knives, including a large black-handled knife just inside a holdall. He had not recovered the complainant’s underwear or the barbeque fork.
ii)
Another officer had gone back with the complainant on the afternoon and evening of 3 July where a pair of black knickers and a barbeque fork were found on the floor.
iii)
There was forensic evidence of finding the appellant’s semen stains on the sheet, resulting probably from more than one instance of ejaculation. No seminal stains on the sheets pre-dating the last time the sheet had been washed had been found. No seminal stains were found on the floor. He also examined the complainant’s thong style black knickers and found the waistband had been cut at the left hip and the crotch panel had been cut from the rear panel. They had not been cut on both sides of the hip, as the complainant had said.
iv)
A medical examination of the complainant revealed injuries to her face and neck. The injuries to the face were compatible with a fall or a punch, but those to the neck were likely to have been caused by scratching. There were also finger tip injuries to the arms which had been caused by gripping. There was no injury to the genital area. The judge pointed out to the jury that the majority of women alleging rape do not have significant genital injury. The absence of injury to the genital area neither supported nor refuted the allegation that intercourse had taken place without consent.
v)
Her blood alcohol level was calculated as being 2½ times the legal limit for driving; she had also taken anti-depressant drugs.
7.
The Polish man did not give evidence; he could not be found. Although a statement had been taken from him, neither side applied to put the statement before the jury.
8.
The appellant did not give evidence. However in interview (which was read and in part played to the jury) he had said:
i)
They had returned to the complainant’s flat by bus. At one stage it braked sharply and she had fallen and may well have injured her face.
ii)
They had consensual sex on her bed whilst the Polish man was asleep. They had both had a bath before he had gone out to the shop with her bank card. She had given him the credit card with a number on it.
iii)
When he returned to the flat they again had consensual sex, both vaginal and oral, on her bed.
iv)
She had picked up a knife and tried to attack him and he had grabbed the knife. The other man also went to grab the knife and had been cut in the process. The complainant had hit the appellant and put a knife to his face. She subsequently grabbed a second knife. He had acted in self defence.
v)
He tried to get out of the flat but did not succeed until the police arrived. Any assault by him on the complainant was simply his response to something that she had started and he was simply trying to defend himself against attack. They had both oral and vaginal sex.
9.
By their verdict, reached after a retirement of just over an hour, the jury found the appellant not guilty of the first count of rape (relating to the allegations set out at paragraph iii) above), but found him guilty of the second count of rape (relating to the matters set out at paragraph iv) above), false imprisonment and assault occasioning actual bodily harm,
The application under
s.41 of the Youth Justice and Criminal Evidence Act 1999
10.
We will first consider the judge’s ruling on the application made under s.41 (3) (c) of the
Youth Justice and Criminal Evidence Act 1999
. As is well known, the section prohibits the cross-examination of a complainant about her sexual behaviour, unless the court gives leave. It can only do so if satisfied that s.(3) or (5) applies and a refusal of leave might have the effect of making the verdict unsafe. It was initially accepted that s.41(5) was of no application; after the judge had ruled that s.41(3) did not permit the cross-examination, an application was made under s.41(5), but refused. No appeal has been brought against that ruling.
11.
S.41(3)
provides, so far as material:
“This subsection applies if the evidence or question relates to a relevant issue in the case and either
—
”
(a) ..
(b) …
(c) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar
—
(i)
to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or
(ii)
to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event,
that the similarity cannot reasonably be explained as a coincidence.
12.
It is also necessary to refer to s.41(4) as it contains a further qualification:
“For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.”
13.
The application made on behalf of the appellant was initially made at the first trial of the appellant on 12 February 2007. The appellant then sought to cross-examine the complainant on the basis of two documents that had been disclosed from the psychiatric and medical records relating to the complainant which showed a history of depressive episodes and self harm dating back to 2004.
i)
The first was contained in a letter dated 17 December 2005 from a senior clinical nurse practitioner at the Homerton Hospital in London to the complainant’s General Practitioner. It referred to a visit by the complainant to the Accident and Emergency Unit on 17 December 2005 seeking support after a period of increased anxiety. In the course of the attendance at the Accident and Emergency Unit she was recorded by the nurse as stating the following:
“She described life choices involving behaviours which potentially puts her at risk of abuse from others, i.e. casual sex with illegal taxi drivers, excessive alcohol intake, etc. She reported awareness of the dangers of the behaviour and also described a wish to punish herself.”
The nurse asked if the complainant could be referred for an assessment with Primary Health psychology.
ii)
A few months later on 27 April 2006 after a visit made by her that day to her General Practitioner, he wrote to the Psychiatric Department at Homerton Hospital asking if the complainant could be seen as an outpatient, as the appointment made by the psychiatric nurse had been sent to the wrong address. The letter of referral stated:
“She presents today with increased anxiety, low esteem and thoughts of self harm. My opinion accords with that of [the clinical nurse practitioner]. [The complainant] for some reason punishes herself with excess alcohol and risky sexual liaisons.”
There was a chaser in respect of this noting that the complainant had not received an appointment in June 2006 and again, after the events of 2 July 2006.
14.
Counsel for the appellant sought to cross-examine as to the source of the information set out in the letters, ask for details of the occasions referred to, and her attitude to risk in the light of that. It was contended that the reference in the two letters to causal sex with others and risky sexual encounters when in drink was to a similar course of conduct to the events out of which the charges against the appellant had arisen. It would not be general cross-examination, but cross-examination directed at specific instances. The submission was that the similarity lay in the risky sexual encounter in which the complainant had had sexual intercourse with a stranger; it had been made clear in
R v A (No 2)
[2001]UKHL 25
(
[2002] 1 AC 45
) at paragraph 133 that
striking similarity was not required.
15.
Two statements were taken from her about the notes on 12 February 2007. She said that she had been engaged in a heterosexual relationship several years ago. In the summer of 2005, she had had heterosexual intercourse with a cabdriver whom she knew, but had since then lived an entirely homosexual lifestyle. The notes taken can only have referred to what had happened with the taxi driver on one occasion; the reference to casual sex was a reference to sex with women she knew. The notes had misinterpreted what she had said.
16.
The application made at the first trial was refused; we have not seen the ruling. However that trial had to be abandoned for reasons, which though surprising, are irrelevant.
17.
An identical application was renewed at the commencement of the trial before HH Judge Goymer. The Judge refused the application. He accepted that it was not a material consideration that, if as a collateral consequence of the evidence being admitted, the credibility of the complainant would be impugned. He considered however that there was no similarity within the meaning of s.41(3)(c); to allow such cross-examination would have been tantamount to saying that the complainant was a person who had engaged in casual sex in the past and therefore would have been likely to do so on the occasion she was with the appellant. Even if there had been, refusal of leave was not such that it would have had the effect of rendering the verdict unsafe.
18.
It is important to point out that no application was made or renewed after the complainant had, during cross-examination, given evidence of her homosexual lifestyle as we have set out at paragraph vi) above. As no application was then made, given that there might well have been reasons for not making it then or it might simply have been an oversight by obviously competent counsel, we could, on this appeal, not consider what the judge might have then done, if such an application had been made. In these circumstances, as the application was not made at the trial, it cannot be raised now.
19.
The issue that therefore arises on this appeal is whether we should uphold the ruling made by the judge at the outset of the trial. Judgements on what is similar for the purposes of s.41 are not always easy; some cases are easy – see for example
T
[2004] 2 Cr App R 552
, where the similarity was so clear that it was not disputed – but some, such as this, are not. In this case we consider that the judge adopted a view on similarity which was open to him within that margin of judgement open to a decision maker. We consider that he was entitled to conclude that what was set out in the letters was not sufficiently similar to what was alleged by the appellant to have happened on the night in issue. He was also entitled to conclude that cross-examination on the basis of what was set out in the two letters would have brought into play matters in relation to her general sexual behaviour and not the similarity of the two occasions. We therefore consider that the ruling was one that cannot be successfully challenged in this court.
20.
Moreover, it is clear from the complainant’s statement of 12 February 2007, what she would have stated about the letters had she been cross-examined about them. No steps had been taken on behalf of the appellant to investigate the issue and in particular to see if her account was accepted by the nurse and the General Practitioner or whether they maintained what was said in the letters. If she had been cross-examined on the letters, there would have been no other evidence to contradict what she had made clear she would say. In those circumstances, it would be difficult to see how it could have been asserted that there was any similarity, without the principal purpose of cross-examination conducted in that way being to impugn the credibility of the complainant. The appellant was not in a position to call any other evidence. If she had been cross-examined without the letters being put to her, it is difficult to see what purpose could have been achieved. Difficulties similar to those identified by this court in
R v E
[2005] Crim LR 227 and
R v V
[2006] EWCA Crim 1901
arose and had not been addressed. There is therefore this further basis on which the decision of the judge could be upheld.
The bad character evidence
21.
The appellant had a large number of previous convictions for offences of violence between 1993 and 2007, including assault with intent to resist arrest, assault on the police, common assault, affray, assault occasioning actual bodily harm. As was apparent from a detailed summary provide by the Crown, out of the 56 offences of violence or threatened violence, 32 were against police officers. However one involved the use of a knife and one possession of knives. He had no previous convictions for sexual offences. The Crown applied under the gateway set out under s.101(1)(d) of the
Criminal Justice Act 2003
, namely that it was relevant to an important matter in issue. That matter was under s.103(1)(a) the question of whether the appellant had a propensity to commit offences of the kind with which he was charged, except where his having the propensity made it no more likely that he was guilty of the offence. Counsel for the appellant opposed the application on the basis that the primary issue in the case was whether the complainant had consented to sexual intercourse. There were no previous convictions for sexual offences. The convictions were largely for assault against the police and indicated at most that he reacted against the police. The convictions were therefore not relevant to the issue of propensity in relation to the main issues; they were only relevant to the count of assault and it would be prejudicial to admit them, particularly some considering their age.
22.
The Judge ruled that one of the crucial issues in the case was who was responsible for starting the violence – the appellant to subdue her for sexual purposes or the complainant who had become violent. This was not only relevant to the count under s.47 but also to the counts of rape, as, if unlawful violence was used on the complainant, that would create an evidential presumption against consent under
s.75 of the Sexual Offences Act 2003
. He considered that the offences did establish propensity to use violence when thwarted; they were not limited to assaults on the police by a man who lived on the street. The propensity did make it more likely that he committed the offences charged, as it went to the issue of responsibility for starting the violence. It was not unfair or unjust to admit them even though they went back to 1993, as they showed a consistent pattern of violence. However, he made it clear that he was not prepared to allow the Crown to adduce evidence of the convictions in respect of offensive weapons, (as these had occurred in 1995 and 1997) and criminal damage (as they were irrelevant).
23.
In the course of his summing up which put the issues and the evidence before the jury with very great clarity, the judge directed the jury that the convictions might show he had a tendency to violence and that was relevant to the issue of deciding who the aggressor was when violence was used. He gave them the usual warnings as to how to treat this evidence. He then reminded the jury that the appellant had no previous convictions for sexual offences. In respect of the offences of violence, a very large number were for assaults on the police. It might be that they arose out of nothing more than resentment at the way he was being treated by the police. No criticism was or could properly be made of the very fair and clear direction given.
24.
It was submitted to us that the judge was wrong to admit the evidence, as the offences did not show a propensity to use violence for gain or to subdue a person, let alone to obtain sexual relations. The violence was of an altogether different character – violence against those in authority In any event the judge should have exercised his discretion to exclude the evidence, given the risk of too much weight being attached to them and the risk of prejudice.
25.
In our view the judge was right to admit the evidence, provided he gave the jury a proper direction as to how the evidence was to be used. The argument advanced on behalf of the appellant did not distinguish between relevance and the use the jury were to make of it and its weight. The question as to whether the appellant had a propensity to violence was indeed relevant for the reasons the judge gave. The circumstances in which the violence had been used in the past went to the way in which the jury could use and evaluate that evidence, unless the evidence would adversely affect the fairness of the proceedings (s.101(3)) in which case, though relevant, the judge should exclude it. We do not consider that the judge was wrong in the view he took that the admission of the evidence would not adversely affect the fairness of the proceedings. As was made clear in
R v Renda
[2005] EWCA Crim 2826
(
[2006] 1 Cr App R 24
) at paragraph 3, this Court will always be reluctant to interfere with what is essentially a fact specific decision. In our view, the judge was right to admit the evidence. As it was accepted that no criticism could be made of the very clear direction given, this ground of appeal must also fail.
Conclusion
26.
We have considered the overall safety of the conviction, but cannot conclude that it was unsafe. The appeal must therefore be dismissed. | ```yaml
citation: '[2009] EWCA Crim 434'
date: '2009-03-09'
judges:
- LORD JUSTICE THOMAS
- SIR ROBERT NELSON
``` |
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 2849
Case No:
2006 04895 C5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
An application under section 58 of the Criminal Justice Act 2003
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
22/11/2006
Before :
LORD JUSTICE RIX
MRS JUSTICE DOBBS DBE
and
SIR CHARLES MANTELL
- - - - - - - - - - - - - - - - - - - - -
Between:
Regina
Applicant
- and -
(1) Glyn Thompson
(2) Brian Hanson
Respondents
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Nigel Lickley, Mr Dominic Kay & Mr Rupert Baldry instructed by
Revenue and Customs Prosecutions Office
appeared for the Applicant
Mr Andrew Mitchell QC & Mr M Lucraft
instructed by
Messrs Corker Binning
appeared for the
1st Respondent
Mr Philip Hackett QC & Mr Graham Brodie
instructed by
Messrs BCL Burton Copeland
appeared for the 2nd Respondent
Hearing date: 6 October 2006
- - - - - - - - - - - - - - - - - - - - -
Judgment
This is the judgment of the court :
1.
This judgment concerns an application brought by the Crown for leave to appeal the ruling of a Crown Court judge whereby he dismissed a charge and accordingly quashed a count relating to it in an indictment, pursuant to paragraph 2 of Schedule 3 to the
Crime and Disorder Act 1998
. The application is brought under the new provisions contained in
section 58
of the
Criminal Justice Act 2003
, whereby the Crown is given a general right of appeal in respect of rulings which are recognised by the Crown as so-called “terminating rulings”. An initial issue has arisen on this application as to whether there is jurisdiction under
section 58
which encompasses a dismissal of this kind. At the conclusion of argument on 6 October 2006, we rendered our decision that there was no jurisdiction for such an appeal under
section 58
and we accordingly refused leave to appeal. These are the reasons for our decision.
2.
In these proceedings, brought by the Revenue and Customs Prosecution Office (RCPO), Glyn Thompson and Brian Hanson were charged with various offences against the Revenue. Counts 2 to 12 inclusive charged Mr Thompson alone and are not the subject of this appeal. We need say nothing more about them. Count 13 charged Mr Hanson alone. RCPO conceded before the judge that they did not seek to uphold that count. The judge therefore dismissed it and we are not concerned with it. We are therefore concerned solely with count 1, which charged both Mr Thompson and Mr Hanson (for convenience, the “respondents”) with conspiracy to cheat the Revenue between 1 January 1995 and 31 October 2002 in connection with a property transaction or transactions by dishonestly failing to disclose all taxable payments.
3.
The offence alleged in count 1 concerned the property dealings of a Guernsey based company called White Ladies Investments Ltd (the “company”) in which it was said that the respondents had significant financial interests. The prosecution case was that the company, although based in Guernsey, was used as a vehicle for the respondents’ property transactions in the UK, in particular in relation to the buying and selling of two properties in Bristol on which substantial profits had been made. It was alleged that the company was centrally managed and controlled in the UK by the respondents. Mr Thompson’s father was a director of the company, but RCPO alleged that his role had been usurped by the respondents and that as a result the company should be viewed as resident for tax purposes in the UK. In effect, said RCPO, the company’s central management and control were exercised in the UK by the respondents and not in Guernsey by the father.
4.
In due course the offence charged under count 1, with the other offences charged, had been sent for trial to the Crown Court, pursuant to
section 51
of the
Crime and Disorder Act 1998
.
5.
It was therefore open to the respondents to challenge the adequacy of RCPO’s case in advance of trial by use of the procedure contained in Schedule 3 to
the 1998 Act
. In effect, the respondents could raise the issue of sufficiency which previously had been available to the defence at an old style committal. Thus paragraph 2 of Schedule 3 provides as follows:
“2.-(1) A person who is sent for trial under
section 51
of
this Act
on any charge or charges may, at any time –
(a) after he is served with copies of the documents containing the evidence on which the charge or charges are based; and
(b) before he is arraigned (and whether or not an indictment has been preferred against him),
apply orally or in writing to the Crown Court sitting at the place specified in the notice under subsection (7) of that section for the charge, or any of the charges, in the case to be dismissed.
(2) The judge shall dismiss a charge (and accordingly quash any count relating to it in any indictment preferred against the applicant) which is the subject of any such application if it appears to him that the evidence against the applicant would not be sufficient for a jury properly to convict him…
(6) If the charge, or any of the charges, against the applicant is dismissed –
(a) no further proceedings may be brought on the dismissed charge or charges except by means of the preferment of a voluntary bill of indictment; and
(b) unless the applicant is in custody otherwise than on the dismissed charge or charges, he shall be discharged.”
6.
It will be observed that the paragraph 2(2) test is the same
Galbraith
test as that which applies to an application of no case to answer at half time at trial; that the paragraph 2 application can only be made before arraignment (paragraph 2(1)(b)); that the result of a successful application is that the charge is dismissed and, if an indictment has been preferred, the relevant count is quashed; and that, where a charge is dismissed, “no further proceedings” may be brought on it
except
by means of the preferment of a voluntary bill of indictment.
7.
The judge, HHJ Ticehurst, sitting at the Crown Court at Bristol, acceded to the respondents’ application under paragraph 2 of Schedule 3. In a written ruling dated 31 July 2006 he explained why he preferred the defence submissions which had been advanced in favour of dismissing the charge under count 1. On 29 September 2006, having heard further submissions, he dismissed the charge and quashed count 1.
8.
It follows, as we think Mr Lickley (now Mr Lickley QC) on behalf of RCPO accepts, that, since the respondents had not yet been arraigned, the dismissal of the charge and quashing of the count did not amount to a formal acquittal of the respondents; and that a voluntary bill of indictment could be sought. Indeed, he submits that the
section 58
route of appeal is an alternative to the voluntary bill of indictment route.
9.
It is probably unnecessary for the purposes of the issue over
section 58
jurisdiction to go further into the nature of the judge’s ruling on the substance of the respondents’ application than to say that the judge had to consider both the evidence and the law relating to the residence of the company. RCPO submit, or would have submitted, that the judge erred as a matter of law in applying the wrong test.
10.
The judge was asked by RCPO to grant leave to appeal under
section 57(4)
of
the 2003 Act
, but declined to do so. Therefore RCPO applied to this court for leave to appeal. It was on that application that the argument as to jurisdiction has arisen.
The appeal procedure under
the 2003 Act
11.
The provisions relating to the new interlocutory right of appeal accorded the Crown under Part IX of
the 2003 Act
came into force on 4 April 2005. For present purposes, the relevant provisions are as follows:
“
Introduction
57.- (1) In relation to a trial on indictment, the prosecution is to have the rights of appeal for which provision is made by this Part.
(2) But the prosecution is to have no right of appeal under this Part in respect of –
(a) a ruling that a jury be discharged, or
(b) a ruling from which an appeal lies to the Court of Appeal by virtue of any other enactment.
(3) An appeal under this Part is to lie to the Court of Appeal.
(4) Such an appeal may be brought only with the leave of the judge or the Court of Appeal.
General right of appeal in respect of rulings
58.-(1) This section applies where a judge makes a ruling in relation to a trial on indictment at an applicable time and the ruling relates to one or more offences included in the indictment.
(2) The prosecution may appeal in respect of the ruling in accordance with this section.
(3) The ruling is to have no effect whilst the prosecution is able to take any steps under subsection (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…
(7) Where –
(a) the ruling is a ruling that there is no case to answer, and
(b) the prosecution, at the same time informs the court in accordance with subsection (4) that it intends to appeal, nominates one or more other rulings which have been made by a judge in relation to the trial on indictment at an applicable time and which relate to the offence or offences which are the subject of the appeal,
that other ruling, or those other rulings, are also to be treated as the subject of the appeal.
(8) The prosecution may not inform the court in accordance with subsection (4) that it intends to appeal, unless, at or before that time, it informs the court that it agrees that, in respect of the offence or each offence which is the subject of the appeal, the defendant in relation to that offence should be acquitted of that offence if either of the conditions mentioned in subsection (9) is fulfilled.
(9) Those conditions are –
(a) that leave to appeal to the Court of Appeal is not obtained, and
(b) that the appeal is abandoned before it is determined by the Court of Appeal…
(12) Where the prosecution has informed the court of its agreement under subsection (8) and either of the conditions mentioned in subsection (9) is fulfilled, the judge or the Court of Appeal must order that the defendant in relation to the offence or each offence concerned be acquitted of that offence.
(13) In this section “applicable time”, in relation to a trial on indictment, means any time (whether before or after the commencement of the trial) before the start of the judge’s summing-up to the jury…
Determination of appeal by Court of Appeal
61.-(1) In an appeal under
section 58
, the Court of Appeal may confirm, reverse or vary any ruling to which the appeal relates…
(3) Where the Court of Appeal confirms the ruling, it must, in respect of the offence or each offence which is the subject of the appeal, order that the defendant in relation to that offence be acquitted of that offence…
Interpretation of Part 9
74.-(1) In this Part –
…
“ruling” includes a decision, determination, direction, finding, notice, order, refusal, rejection or requirement…”
12.
It will be observed that “ruling” is given a broad and inclusive definition (section 74(1)); that the basic subject matter is a ruling “in relation to a trial on indictment” (
section 58(1)
); that such a ruling may be made “at an applicable time”, ie whether before or after the commencement of the trial” (
section 58(1)
and (13)); that there is nothing express in the statute to limit “at an applicable time” to after arraignment; that the language “terminating ruling” is not the language of the statute, but that by reason of the self-policing provisions of
section 58(8)
and (9) the effect of failure on the part of the prosecution is the acquittal of the defendant in respect of the offence concerned (and see also section 61(3)); and that there is nothing in the statute expressly to amend or qualify Schedule 3 to
the 1998 Act
’s provision that upon dismissal of a charge (see under its paragraph 2(6)) no further proceedings may be brought except by way of voluntary bill of indictment.
“In relation to trial on indictment”
13.
The words “in relation to trial on indictment” found in
section 58(1)
are also found in
section 29(3)
of the
Supreme Court Act 1981
, which provides:
“In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters in relation to trial on indictment, the High Court shall have all such jurisdiction to make orders of mandamus, prohibition or certiorari as the High Court possesses in relation to the jurisdiction of an inferior court.”
14.
In other words, matters in relation to trial on indictment within the jurisdiction of the Crown Court are excluded from the judicial review jurisdiction of the High Court.
15.
The divisional court had to consider the scope of that exclusion in
Regina (Snelgrove) v. Crown Court at Woolwich
[2004] EWHC 2172 (Admin)
,
[2005] 1 WLR 3223
(“
Snelgrove
”). Snelgrove had been sent for trial under
section 51
of
the 1998 Act
and had applied under paragraph 2 of Schedule 3 to
that Act
to have the charge against him dismissed on the ground of the insufficiency of the evidence against him. Having failed in that application, he sought judicial review of the judge’s decision. The issue was whether that pre-arraignment application was “in matters in relation to trial on indictment”. The divisional court held that it was, on reasoning which on behalf of RCPO Mr Lickley submits is determinative of the present application, a fortiori because
Snelgrove
has been applied by the divisional court in
O v. Central Criminal Court
[2006] EWHC 256 (Admin)
, 27 January 2006 in the context of arguments which bear on the right of appeal provisions of
the 2003 Act
. Mr Lickley therefore submits that HHJ Ticehurst’s ruling was likewise “a ruling in relation to a trial on indictment” within
section 58(1)
and that RCPO have a right of appeal under that section.
16.
Thus in his judgment in
Snelgrove
Auld LJ stressed that the decision whether to dismiss the charge had three attributes which pointed to the logic of the
section 29(3)
exclusion, for such a decision (a) affected the conduct of a trial, (b) was an integral part of the trial process, and (c) was an issue between the Crown and the defence arising out of the charge: in such circumstances there was good reason for the exclusion of any process of appeal or judicial review which would interfere with or delay the trial process itself. These three “pointers” Auld LJ derived from previous decisions on the House of Lords (at paras 19/32). Auld LJ summed up such considerations in this passage (at para 43(i)):
“The clear underlying purpose of
section 51
of and Schedule 3 to
the 1998 Act
(and for that matter
section 6
of the 1987 Act and section 53 of and Schedule 6 to the 1991 Act) are to speed the criminal justice process, a purpose that Mr Perry rightly emphasised. As the court said in
R (Salubi) v Bow Street Magistrates’ Court
[2002] 1 WLR 3073
, 3083, para 16, the intention of Parliament in introducing
the 1998 Act
procedure was to simplify and speed the procedure of transmission of all indictable only cases against adults to the Crown Court to enable it to deal with preliminary challenges to charges of this seriousness, requiring it to dismiss the charge where, in the words of paragraph 2(2) of Schedule 3 to
the 1998 Act
, “the evidence against the applicant would not be sufficient for a jury properly to convict him”. Thus, the argument advanced by Mr Perry, on behalf of the Crown Prosecution Service is consistent with that policy. The availability of judicial review would inject delay and uncertainty into proceedings in the Crown Court, which cannot have been the intention of Parliament. A claimant’s remedies, in the event of failure of his application to dismiss, lies in the trial process, or, if he is convicted, on appeal to the Court of Appeal (Criminal Division).”
17.
Auld LJ immediately went on to state, quite simply, that “with or without the three “pointers” given by the House of Lords” the exclusionary words of
section 29(3)
“in matters relating to trial on indictment” were sufficiently broad to cover
the 1998 Act
dismissal procedure (at para 43(ii)).
18.
Snelgrove
was concerned with a defendant’s right to judicial review. Mr Lickley nevertheless submits that now that Parliament has decided to give to the Crown a right of appeal from interlocutory rulings “in relation to trial on indictment”, despite any concern with delay to the trial process, the very reasons which in
Snelgrove
counted against the defendant count in favour of RCPO in the present context.
19.
This is a somewhat complicated submission. With or without the purposive argument in
Snelgrove
, the divisional court found the exclusionary words to be wide enough to cover the paragraph 2 dismissal procedure. Mr Lickley I think relies on Auld LJ’s straightforward linguistic approach, but also, so far as Auld LJ’s purposive approach is concerned, seeks to turn the argument, in the new circumstances of
the 2003 Act
, back on a successful, as distinct from an unsuccessful, defendant.
20.
On behalf of the respondents, however, it is not submitted that the words “a ruling in relation to a trial on indictment” cannot be wide enough to cover rulings to dismiss a charge under paragraph 2 of Schedule 3 to
the 1998 Act
: but the issue is nevertheless raised on the whole of the relevant provisions both of paragraph 2 and of
section 58
as to whether dismissals under the former are intended to be within the latter.
21.
In
O v. Crown Prosecution Service
the claimant, O, had similarly failed in his application to dismiss under paragraph 2 of Schedule 3 and was seeking judicial review. He had also failed to persuade the Crown Court judge to require the complainant to submit herself to cross-examination at the hearing of the dismissal application. He accepted that prima facie he was bound by
Snelgrove
but submitted that that decision should be revisited in the light of the
Human Rights Act 1998
and an argument founded on article 5(4) of the European Convention on Human Rights. It was submitted that
Snelgrove
had been decided
per incuriam
and was wrong. The divisional court roundly rejected that submission (at paras 41/42, 67). Nevertheless, in the course of setting out the claimant’s submissions, Hallett LJ said this:
“19. He submitted that in
Snelgrove
, the court placed considerable reliance on the delay factor and this ignored the fact that it is often the most serious matters that have delay in being listed for trial. We were reminded in written submissions of Parliament’s decision to afford the prosecution a statutory right to appeal a judge’s evidentiary ruling pursuant to
Section 62
of the
Criminal Justice Act 2003
. This, it was said, will inevitably delay a criminal trial. Pausing there, it was pointed out in argument that such an appeal will not be to the Divisional Court, with possible applications to the House of Lords following, but it will be to the Court of Appeal Criminal Division. My Lord Jack J commented that he and I had dealt with an interlocutory appeal in a serious fraud case very recently…[The trial] was delayed by just one week by the appeal. The delay inherent in appeals to the Court of Appeal Criminal Division pre or during trial cannot therefore be equated with the delay inherent in judicial review proceedings…
21. Further, in his attempt to demonstrate flaws in the court’s reasoning in
Snelgrove
, Mr Anelay argued that an application to dismiss is in fact a test of whether there should ever be an indictment within the jurisdiction of the Crown Court. Until arraignment, the Crown Court is not seized of an indictment but simply a charge sheet; applications to dismiss must be made before arraignment. He argued that the fact that the prosecution are given a specific remedy in the event that charges are dismissed, namely proceeding by way of a voluntary bill, further emphasises that Parliament intended applications to dismiss to be subject to distinct rules from trials on indictment and to form a special class of their own. If the application to dismiss is successful, we were reminded, no verdict is entered in relation to charges, unlike a trial on indictment…
22. As I have already indicated, similar arguments were considered and rejected in
Snelgrove
, which binds this court, unless obviously wrong. So, without further ado, I turn to the argument upon which this application is based, namely the alleged incompatibility with article 5, an issue not addressed directly in
Snelgrove
.”
22.
Mr Lickley relies on those passages to submit that the divisional court there was expressly accepting that the new
section 58
right of appeal embraced appeals from terminating rulings under the dismissal procedure of paragraph 2 of Schedule 3 to
the 1998 Act
.
The submissions
23.
Turning from
Snelgrove
and
O
more broadly to the submissions before us, we would express them as follows.
24.
On behalf of RCPO, Mr Lickley submits that
section 58
’s essential wording is broad and unlimited. Thus “ruling” is given a broad definition in section 74(1). In any event, a decision under the dismissal procedure of paragraph 2 of Schedule 3 to
the 1998 Act
is a ruling “in relation to a trial on indictment” (
Snelgrove
;
O
). Although that decision (necessarily) took place before arraignment,
section 58(13)
’s broad definition of “applicable time” (“whether before or after the commencement of the trial”) emphasised the width of the
section 58
jurisdiction. Although the width of the language of
section 58
was to some extent restricted by the logic of the so-called “terminating ruling” requirements of
section 58(8)
and (9), that presented no limitation in the present case, since a dismissal of a charge was plainly within the purpose of giving to the Crown an opportunity of challenging by way of interlocutory appeal a ruling which would otherwise have the effect of bringing the whole proceedings to an early end. In this connection reliance was placed on an explanatory note to Part IX (see below). If a successful application of no case to answer at the close of the prosecution case at trial would fall within the
section 58
jurisdiction, as was not in dispute, then a purposeful interpretation of the statute would similarly embrace the pre-trial dismissal procedure under Schedule 3. Thus both the broad language and the purpose of
section 58
and its ancillary provisions combined to support RCPO’s right to apply for an appeal in the present case.
25.
On behalf of Mr Thompson, however, Mr Mitchell QC submitted that, broad as some of the language of
section 58
is, there had never been any intention to embrace an appeal from a dismissal of a charge, or the quashing of an indictment, under the Schedule 3 procedure. Since that procedure could only lead to the dismissal of a charge or the quashing of an indictment, it could not result in the acquittal of the defendant. And yet the acquittal (or prospective acquittal) of a defendant was the necessary premise of the
section 58
procedure: see
sections 58(8)
, 58(12) and 61(3). In any event, paragraph 2(6)(a) of Schedule 3 continued to say that no further proceedings could be brought on the dismissed charge except by means of the preferment of a voluntary bill of indictment. There had been no amendment of that provision. It could not have been intended to give to the Crown an alternative remedy of either the voluntary bill of indictment procedure or a
section 58
appeal: the whole purpose of
section 58
was to provide the Crown with a remedy for the collapse of a case where it had no other remedy. Reliance was also placed on the Crown Prosecution Service’s own literature published in explanation of the Crown’s rights of appeal under
the 2003 Act
(see below). This literature reproduced examples of “terminating rulings” which had been used during parliamentary debates concerning
section 58
, but which nowhere included an example of dismissal of a charge or quashing of an indictment under Schedule 3.
26.
On behalf of Mr Hanson, Mr Hackett QC adopted Mr Mitchell’s submissions.
27.
In anticipation of or response to the submissions made on behalf of the respondents Mr Lickley also argued that “no further proceedings” within paragraph 6(2)(a) of Schedule 3 did not embrace an appeal in the same proceedings: therefore there was no need for any amendment to that provision to permit the new right of appeal to join the existing and otherwise unique remedy of the preferment of a voluntary bill of indictment. As to the latter remedy, it was cumbersome, dilatory and uncertain and, even if successfully used, may simply leave the “terminating” issue or an analogous one for a later date as on the close of the prosecution case. In any event it lacked the authority of this court. On the other hand the appeal process ensured that the original case remained intact until the court of appeal had ruled; prevented the need to commence new proceedings and to seek joinder; and provided clarity where for example issues of law were involved.
The explanatory note
28.
Mr Lickley relied on an explanatory note to Part IX in the following terms:
“36. Under current legislation, the defendant has a right of appeal at the end of the trial against both conviction and sentence but the prosecution has no equivalent right of appeal against an acquittal whether as a result of a jury’s decision or a judge’s ruling that has the effect of bringing trial to an end early. This Part introduces an interlocutory prosecution right of appeal against two categories of ruling by a Crown Court judge. The first group comprises a ruling that has the effect of terminating the trial made either at a pre trial hearing or during the trial, at any time up to the start of the judge’s summing up. This includes both rulings that are terminating in themselves and those that are so fatal to the prosecution case that the prosecution proposes to treat them as terminating and, in the absence of the right of appeal, would offer no or no further evidence.”
29.
We are not sure what the status of such explanatory notes is in this case: but see
R (on the application of Westminster City Council) v. National Asylum Support Service
[2002] UKHL 38
,
[2002] 1 WLR 2956
at paras 5/6. In any event, we do not think that the explanatory note assists RCPO. It is perfectly possible to see that, if a decision under Schedule 3 is assumed to be within
section 58
, then it would be a decision which (subject to the preferment of a voluntary bill of indictment) could be described as “terminating”, albeit that is not a statutory word. The statute, on the other hand, deals with the concept of what is described in the note as a “terminating” ruling in terms of a process involving or leading to “acquittal”: see
section 58(8)
and (12). Moreover, the explanatory note sets the context by speaking of an “equivalent right of appeal against an acquittal”. We do not consider that the issue is advanced by reference to an explanatory note which glosses the statutory language of acquittal (“should be acquitted”…“be acquitted”) by the language of termination.
The CPS literature
30.
Mr Mitchell referred us to a CPS document, available on the internet, entitled “Prosecution Rights of Appeal”. In its Introduction, it again adopts the language of terminating rulings (“The first category (a general right of appeal)
section 58
comprises a ruling that has the effect of terminating the trial either at a pre-trial hearing or during the trial”). However, there is much that follows which seeks to identify what rulings do and what rulings do not fall within the statute. Thus –
“(
Annex A
) contains a list of examples where the judge’s ruling had the effect of terminating the case. (
Annex B
) contains a list of cases relating to evidentiary rulings that were not fatal to the prosecution. The Government used the examples in Annex A and B, during the passage of the Bill in Parliament, to support the provisions…
The rights do not extend to a ruling that a jury be discharged, or to a ruling that can be appealed to the Court of Appeal by virtue of any other enactment…
Although the right applies to any ruling of the judge, the intention of
the 2003 Act
is to restrict the right of appeal to terminating rulings, such as a stay of proceedings, a ruling of no case to answer, or those that are [so?] fatal to the prosecution case that the prosecution proposes to treat them as terminating and, in the absence of a right of appeal, would offer no or no further evidence.
This is because the prosecution, as a condition of informing the court that it intends to appeal, must agree that the defendant should be acquitted of the offence subject to the appeal, if leave to appeal is not obtained or the appeal abandoned before it is determined by the Court of Appeal
–
section 58(8)
…
Quashing an indictment has the effect that the defendant may not be tried on the indictment (or a particular count, if the motion does not relate to the whole), but he is not acquitted and further proceedings may be brought for the same offence. The use of
section 58
is therefore not appropriate where an indictment is quashed. The options open to the prosecution should be: to institute fresh committal proceedings; apply for a voluntary bill of indictment; or the better course to ask the judge to stay (but not quash) the defective indictment and at the same time prefer a fresh indictment correcting the error.”
31.
In Annex A twelve examples of
section 58
terminating rulings are set out which were used during parliamentary debates on the bill. A further four examples are cited of rulings which led to a decision by the prosecution to abandon the proceedings. None of these examples includes a dismissal under paragraph 2 of Schedule 3.
Discussion
32.
Despite the width of the expressions “ruling in relation to a trial on indictment” and “at an applicable time”, and the decisions in
Snelgrove
and
O
relating to the dismissal process under Schedule 3 to
the 1998 Act
, all of which enables RCPO to mount a substantial argument that the ruling in question falls within
section 58
, in the end we are not persuaded that it does. Our reasons essentially track the submissions advanced on behalf of the respondents. We would seek to put the matter as follows.
33.
First and most importantly, it is not possible to have an acquittal under the Schedule 3 procedure. Ultimately, I do not think that is even in dispute. A Schedule 3 application to dismiss can only be made before arraignment. The result of a successful Schedule 3 application is the dismissal of the charge and, if an indictment has been preferred, the quashing of the relevant count. Neither of these amounts to an acquittal. If it were, it would not be possible to prefer a voluntary bill of indictment. Nor is it easy to see how the dismissal of a charge or the quashing of an indictment leaves anything in being on which an acquittal could be premised. Mr Lickley expressly abjured the possibility of going on to arraign the defendant and then offering no evidence. That could be done where the charge or indictment was left in being, but was stayed; or where, following an unsuccessful application for public interest immunity from disclosure, the Crown chose to proceed no further with its prosecution. In such situations, the charge or indictment would remain, albeit under a stay. If the defendant had not yet been arraigned, that could still occur, the Crown could offer no evidence, and an acquittal would thus be effected. The CPS document “Prosecution rights of appeal” expressly contemplates the Crown offering no evidence or no further evidence where a ruling is fatal to the prosecution case: as may be the case either before or, if necessary, after appeal. This would explain why
section 58
does not reflect the language of Schedule 3’s paragraph 2(1)(b) by expressly enacting that a ruling must take place after arraignment. There might be pre-arraignment rulings, other than rulings under the Schedule 3 dismissal process, which could lead to review under the
section 58
right of appeal procedure.
34.
Mr Lickley did not submit that a judge hearing a Schedule 3 application to dismiss could properly choose to stay the proceedings rather than dismiss the charge and quash any indictment, expressly so as to permit an appeal to be launched under
section 58
. After all, in the case of a Schedule 3 dismissal application, the judge is given no option but to dismiss the charge and quash any relevant count in any indictment (see “shall dismiss…and accordingly quash”, in paragraph 2(2) of Schedule 3). The Schedule 3 procedure can only be employed before arraignment. Therefore, the Schedule 3 procedure appears to be inherently immunised from a right of appeal.
35.
Secondly, despite the otherwise broad language of
section 58
, the section and its ancillary provisions as a whole appear to contemplate that an acquittal of the defendant is the necessary result of either the ruling itself or the Crown’s attempt, if unsuccessful, to appeal it: see
section 58(8)
,
section 58(12)
and section 61(3). However, as already discussed, a successful Schedule 3 dismissal application cannot lead to acquittal.
36.
In this connection, the court explored with Mr Lickley whether the effect of these last mentioned provisions was that the statute was here contemplating a form of artificial or stipulated acquittal, arising out of the Crown’s agreement, which it must make as a condition of informing the court of an intention to appeal, that the defendant “should be acquitted” if the Crown were unsuccessful in obtaining an appeal; or a form of mandatory acquittal where the court of appeal itself heard an appeal but confirmed the ruling. However, such submissions held no attractions for Mr Lickley.
37.
Thirdly, Schedule 3 by its paragraph 2(6)(a) makes it clear that the only remedy for the Crown in the face of a dismissal of a charge or the quashing of an indictment is to seek the preferment of a voluntary bill of indictment. We are not attracted by Mr Lickley’s submission that the expression “no further proceedings” would permit the obtaining of an appeal in the same proceedings. We do not think that such a conclusion would have gone unremarked in the language or amendments of
the 2003 Act
. Nor do we think that
the 2003 Act
has silently effected an implied amendment of Schedule 3’s paragraph 2(6)(a). On the contrary, we agree with the respondents that it would be remarkable if the Crown were able to add to its remedies a new right of appeal where it already had a remedy by way of the preferment of a voluntary bill of indictment. It is true that that procedure might lack some of the advantages of the interlocutory right of appeal now afforded under
section 58
; and that the purpose of that right of appeal might be argued to extend to a dismissal or quashing before arraignment as much as it applies to the finding of no case to answer at half time. Nevertheless, we think that the Schedule 3 procedure does to this extent stand on its own, even if, for the purpose of the
separate question
whether it falls within the
section 29(3)
exclusion of judicial review, the answer to be given is that of
Snelgrove
and
O
. Otherwise, the
section 58
right of appeal would have effectively destroyed,
sub silentio
, the whole process of a voluntary bill of indictment. It is true that a casual reading of paragraphs 21/22 of
O
(see above) might suggest that the divisional court was there thinking that a Schedule 3 dismissal was within
section 58
as a ruling “in relation to a trial on indictment”: but the present point was not there under consideration. It was rather being suggested that a Schedule 3 dismissal could lie outside the exclusion of judicial review to be found in
section 29(3)
of
the 1981 Act
.
38.
Fourthly, we are impressed by the fact that the Schedule 3 dismissal procedure was not put forward to Parliament as an example of a “terminating ruling”, despite the numerous examples discussed for that purpose in the Parliamentary debates on the bill. After all, if it had been intended to include Schedule 3 dismissal rulings within
section 58
, we would have expected this important example to be highlighted: and all the more so because the arguably closely analogous application of no case to answer made at half time during a trial is expressly contemplated in
section 58(7)
(a).
Conclusion
39.
For these reasons, we consider that there is no jurisdiction under
section 58
of the
Criminal Justice Act 2003
to give leave to appeal a ruling under paragraph 2 of Schedule 3 to the
Crime and Disorder Act 1998
. It follows that this application for leave to appeal Judge Ticehurst’s dismissal of the charge and quashing of the indictment in respect of count 1 is refused. Despite that refusal of leave to appeal, however, we make it clear, if it is necessary to do so, that this judgment may be cited on future occasions, seeing that it has considered in detail a point of jurisdiction. | ```yaml
citation: '[2006] EWCA Crim 2849'
date: '2006-11-22'
judges:
- LORD JUSTICE RIX
- MRS JUSTICE DOBBS DBE
- SIR CHARLES MANTELL
``` |
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 1603
Case No:
201800220/C2-201800357/C2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 19 June 2018
B e f o r e
:
LORD JUSTICE SIMON
MR JUSTICE NICKLIN
HIS HONOUR JUDGE MAYO QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
AARON BARRATT
- - - - - - - - - - - - - - - - - - - - -
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 B Aldred
appeared on behalf of the
Applicant
Mr N Ogborne
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
(Approved)
WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
MR JUSTICE NICKLIN:
1.
On 6th November 2016 there was a riot at HMP Bedford. Disorder broke out after inmates refused to go back into their cells following their afternoon association time which had been cut short due to staff shortages. The disorder was brought under control after a number of hours when prison riot teams were called in. The disorder was largely captured on CCTV.
2.
Several prisoners were charged with offences arising out of the disturbance. Seven prisoners, including the appellant, were charged with offences under the
Prison Security Act 1992
("
the Act
"), five of them with affray and one of them with an offence of burglary.
3.
Section 1
of
the Act
provides, so far as material:
Offence of prison mutiny
.
(1)
Any prisoner who takes part in a prison mutiny shall be guilty of an offence and liable, on conviction on indictment, to imprisonment for a term not exceeding ten years or to a fine or to both.
(2)
For the purposes of this section there is a prison mutiny where two or more prisoners, while on the premises of any prison, engage in conduct which is intended to further a common purpose of overthrowing lawful authority in that prison.
(3)
For the purposes of this section the intentions and common purpose of prisoners may be inferred from the form and circumstances of their conduct and it shall be immaterial that conduct falling within subsection (2) above takes a different form in the case of different prisoners.
(4)
Where there is a prison mutiny, a prisoner who has or is given a reasonable opportunity of submitting to lawful authority and fails, without reasonable excuse, to do so shall be regarded for the purposes of this section as taking part in the mutiny.
(5)
Proceedings for an offence under this section shall not be brought except by or with the consent of the Director of Public Prosecutions."
4.
The section creates a single offence of prison mutiny which can be committed either under subsection (2), when at least two prisoners engage on the conduct with the requisite purpose, or under subsection (4), on the basis of deemed participation in the mutiny.
5.
The appellant and one other prisoner, Kevin Murphy, were originally charged with actual participation under subsection (2). However, on the first day of trial prosecution was permitted to amend the indictment to add a second count of deemed participation under subsection (4). An application made by all defendants to dismiss that count was rejected by the Judge. Following that ruling the appellant pleaded guilty to count 2. The co-accused maintained their not guilty pleas and the trial continued on count 1 against the appellant and Murphy and on count 2 as against the remaining co-accused. On the eighth day of the trial the prosecution offered acceptable pleas to affray for the co-accused and agreed to let count 1 lie on the file in respect of the appellant and Murphy.
6.
The prosecution case was that the appellant and his co-accused were among those who engaged in this riot. Specifically, in relation to the appellant, the Prosecution alleged that he was a ringleader and that he and Murphy organised the disorder by encouraging other inmates not to return to their cells at the end of association. As part of the disorder it was alleged that the appellant had pulled a phone off the wall, entered the wing office and taken food, washed his hands and used the telephone, put on an officer's uniform that was hanging in the office, kicked something in the doorway and been involved in the destruction of the hard drive of the CCTV. The prosecution relied upon the evidence of Officer Spencer, that she had given the order to lock up at the end of association and the CCTV footage of the disorder.
7.
On count 1, actual participation, the appellant disputed that he had been a ringleader, that he told anyone to refuse to “lock up” or shared any intention to overthrow lawful authority in the prison. On count 2 the appellant's case was that, although he had heard Officers Spencer's order to “lock up”, that was before the mutiny had started. He accepted that he had joined the disorder after the mutiny began but there had been no direction to submit to lawful authority during the time with which he could have complied.
8.
Relying upon the authority of
R v Mason and Cummins
[2005] 1 Cr App R 11
, the basis of the submission made to the judge to dismiss count 2 was in summary:
(i)
s.1(4)
of
the Act
required that a mutiny was already taking place at the time when the actus reus of the offence under that section was committed;
(ii)
as the
actus reus
is that "
prisoner who has or is given a reasonable opportunity of submitting to lawful authority ... fails without reasonable excuse to do so
", the prosecution had to prove there was such an opportunity at a time after the mutiny had started and
(iii)
there was no such opportunity in this case because there were no orders to bang up after the mutiny had started. The only command or order was made by Officer Spencer which was made before the mutiny had started.
9.
In a succinct but clear ruling the judge refused to dismiss count 2. He rightly identified under subsection (4) that there was no requirement that any particular instruction be given. In any event, the judge was satisfied that any instructions given by the officer to the prisoners to return to their cells were ongoing instructions that carried on until complied with. The issues of when, then the mutiny had started that evening whether the defendants had a reasonable opportunity to submit to lawful authority were ultimately matters for the jury to determine.
10.
As noted above, following the Judge's ruling the appellant pleaded guilty. Following discount for guilty plea the Judge sentenced him to 2 years' imprisonment. The Judge noted that the riot had caused around £750,000 worth of damage and caused the prison capacity to be reduced from 510 to 251 prisoners. That led to prisoners having to be re-accommodated in other prisons. It took a year before the prison was restored to full operational capacity. The Judge was satisfied that the Appellant had been encouraging other prisoners at the start of the disturbance and, during the riot, he had personally broken into the office on the wing causing damage to property and to the computer equipment. There were no sentencing guidelines but the Judge considered the authority of
R v Whiteman
[2004] Cr App R(S) 59, where a sentence of 4 years was upheld as a starting point even for those who had joined the disturbance after it had started, albeit in a much more serious riot.
11.
The Appellant sought to appeal against conviction and sentence. As to conviction he contended that the Judge's ruling was wrong and that he had failed to consider the effect of
Mason and Cummins
, in particular the need for ‘synchronicity’ between the mutiny and the failure to submit to lawful authority. It is contended that, as no orders were given to bang up after the mutiny had started, the Appellant had no opportunity to substitute to lawful authority. The Registrar referred the application for permission to appeal to the Full Court.
12.
Mr Aldred, on behalf of the Appellant, has helpfully developed these submissions before us today. It is common ground that the only instructions to prisoners was that given by Officer Spencer at 16.38. He relies on the fact, as stated in the prosecution's opening note prepared for the court:
"Before the riot began [the Appellant] encouraged other prisoners not to ‘lock up’ and shortly thereafter that chaos ensued."
On that basis, he contends that the prosecution could not demonstrate the required synchronicity between the mutiny and the failure to submit to unlawful authority. He relies upon the Court of Appeal statement in
Mason & Cummins
[19]:
"[The] significance in the present case is related to the need of the prosecution to synchronise the mutiny and the failure on the part of each appellant to submit to lawful authority. Thus, if the disturbance only ripened into a mutiny after such a failure, which was the defence case, the failure would not be caught by
section 1(4)
."
13.
We are satisfied that
Mason and Cummins
establishes the following propositions:
(1)
Section 1
creates a single offence of prison mutiny which can be committed either:
i.
by conduct with the requisite purpose under
section 1(2)
or
ii.
on a
deemed
basis pursuant to
section 1(4)
: [12].
(2)
To be guilty of an offence on the deemed basis:
i.
the prosecution must prove that a mutiny is taking place, (i.e. at least two prisoners engaged on the mutiny) with the requisite intent, but
ii.
it is not necessary to prove that a person failing to submit to lawful authority shares the purpose of "overthrowing lawful authority": [13].
(3)
"Overthrowing" is a stronger word than by subverting and is not synonymous with refusing to obey lawful orders or mere defiance of or challenge to lawful authority. The word was chosen deliberately to confine offences of prison mutiny to serious disturbances: [16]-[18].
(4)
The prosecution must prove ‘synchronicity’ between the mutiny and the failure to submit to lawful authority. If a disturbance only ‘ripened into a mutiny after such a failure’ the failure would not be caught by
s.1(4)
: [19].
14.
There appears to be no authority as to the interpretation of what amounts to "
failing to submit to lawful authority
” in this context.
15.
In our judgment, it is important to concentrate upon the words of subsection (4). In order for a defendant to be deemed to be taking part in a prison mutiny the prosecution must prove two things: (1) that a mutiny was taking place in the prison and (2) a prisoner who has, or is given a reasonable opportunity to do so, fails to submit to lawful authority. A defence of “reasonable excuse” for the failure is available but does not arise on the facts of this case.
16.
The concentration upon the order given by Officer Spencer at 16.38 for prisoners to return to their cells is, we find, a distraction. The offence is not committed by failing to follow an express instruction during a mutiny. A reasonable opportunity of submitting to lawful authority does not require any order to have been given. The fact that an order has been given and not heeded may well be powerful evidence that the defendant did in fact have a reasonable opportunity to submit to authority and failed to do so, but it is not necessary for an order to be given.
17.
The Appellant did not contend that during the late afternoon/early evening on 6 November that there was not a mutiny in Bedford Prison, nor did he suggest that, once it started, he submitted to lawful authority. On the contrary, whilst it was taking place he broke into the wing office and damaged a number of items. On that basis the judge's decision to refuse to dismiss the
s.1(4)
count was correct.
18.
The Crown's opening note was perhaps not helpful in isolating the real issue:
"[The appellant] faces a charge of having been given a reasonable opportunity of submitting to lawful authority and failed without reasonable excuse to do so ... You will hear the instruction from the prison officer for all prisoners on A Wing to lock up. They didn't. These prisoners watched the ringleaders start the disorder and joined in, thus making them guilty of this offence say the Crown."
19.
The fact that an order to prisoners to return to their cells is given before a riot starts may well, depending on the facts, fall to be characterised as a continuing instruction. But for the reasons we have explained, whether it does so is not determinative whether there has been a failure to submit to lawful authority. We are satisfied that the judge correctly held that
section 1(4)
did not require the giving of any specific instruction.
20.
The requirement of synchronicity in
Mason and Cummins
is simply that the failure to submit to lawful authority, where there is a reasonable opportunity to do so, must be at a time when the mutiny is in process. The issue does not arise on the facts of this case. It is plain that the appellant did not submit to lawful authority once the disturbance in Bedford Prison had ripened into a mutiny. He had a reasonable opportunity to do so by returning to a cell otherwise disengaging. He did not contend that he had a reasonable excuse for not doing so.
21.
In
Mason and Cummins
the Court of Appeal made brief reference to the passage of the Bill in Hansard [18]. We invited counsel's submission on the statements made on behalf of the government during the Committee stage in the House of Lords on 3 March 1992.
22.
An amendment had been tabled to remove
section 1(4)
on the grounds it had the potential to catch people who are simply standing around whilst a mutiny took place. In addition, concern was expressed that some prisoners, for fear of retribution, might feel unable to submit to the prison authorities during the riot.
23.
Earl Ferrers, on behalf of the government, responded to these points as follows:
"The purpose of Clause 1(4) is to deal with the real problem which arises in a serious situation when large numbers of onlookers congregate and refuse to disperse. Protests about food or other conditions would not fall within the definition of mutiny.
A prison disturbance becomes more dangerous as the numbers involved grow. The disruption caused is greater, and it becomes more difficult to quell the disturbance and to restore order. Clause 1(4) is designed to stop the numbers growing. It provides a clear incentive for prisoners who may not be actively involved to leave the scene and get out of the light when a mutiny begins. Their departure - whether or not it is in response to an order from the prison officers - makes it much easier to resolve an incident peacefully and to restore order. If they will not disperse and their presence adds fuel to the mutiny, then it seems to me to be only fair to regard them as taking part and to make them liable to the same penalty...
Under Clause 1(4), once it has been established that there is a mutiny and that there was a reasonable opportunity to leave the scene in safety but that some people did not do so, all prisoners who remain would be regarded as taking part in the mutiny unless they had a reasonable excuse for not leaving...
It is also not unknown for ring-leaders to try to pass themselves off as bystanders. A prisoner who does not take a reasonable opportunity to leave the scene of a mutiny and deliberately remains there without reasonable excuse cannot in any reasonable view properly be described as an innocent bystander. In my view he is a guilty bystander.T he purpose of clause 1(4) is to deal with the real problem which arises in a serious situation where large numbers of onlookers congregate and refuse to disperse. Protests about food or other conditions would not fall within the definition of mutiny. A prison disturbance becomes more dangerous as the numbers involved grow. The disruption caused is greater and it becomes more difficult to quell the disturbance and to restore order. Close 1(4) is designed to stop the numbers growing. It provides a clear incentive for prisoners who may not be activity involved to leave the scene and get out of the light when a mutiny begins. Their departure - whether or not it is in response to an order from the prison officers - makes it much easier to resolve an incident peacefully and to restore order. If they not disperse their presence add fuel to mutiny then it seems to me to only fair to regard them as taking part and make them liable to the same penalty ... under clause 1(4) one it has been established there was a mutiny and there was a reasonable opportunity to leave the scene in safety but that some people did not do so, all prisoners who remain would be regard as taking part in the mutiny unless they had a reasonable excuse for not leaving...
That does not mean that all those who are present will necessarily be found guilty of mutiny. Of course, there may well be prisoners who are unwittingly caught up in a mutiny, who wish to leave the scene but who might be attacked by their fellows if they did so... If they are unable to leave in safety then the offence will not apply to them. It is a necessary safeguard to protect the innocent.
Clause 1(4) does not reverse the burden of proof. The prosecution will need to prove beyond reasonable doubt that there was a prison mutiny and that the prisoner concerned remained on the scene despite having a reasonable opportunity to surrender in safety. If the accused gives evidence that he had a reasonable excuse for his behaviour, the prosecution will also need to convince the court that he did not have such an excuse. Clause 1(4) is designed to catch the culpable bystander (and I make no excuse for that) while providing adequate safeguards for the genuinely innocent bystander."
24.
On behalf of the appellant, Mr Aldred, having reviewed the Hansard extract that we have just set out, suggested it did somewhat damage the submission he is advancing on behalf of the appellant.
25.
As it happens, we have not considered it necessary to resort to Hansard to interpret the section. We are satisfied that the section is not ambiguous as to its effect. But we note, that it is consistent with the view that we have reached. There may be cases where the court will have to consider what amounts to "submitting to lawful authority" and whether a prisoner had a reasonable opportunity to do so during a mutiny. That point does not arise in this case and so for the reasons we have given the appeal against conviction is dismissed.
26.
Turning to sentence, Mr Aldred submits that fixing the sentence at 3 years, before discount, for the appellant's role in this case was manifestly excessive. The disorder in
Whiteman
was not only more serious but much more serious, in significant ways, and meant a sentence of 3 years for the appellant's offence could not have properly taken into account the lack of a large number of aggravating factors.
27.
We do not find comparison of particular features of individual cases to be very helpful. In the present case, £750,000 worth of damage was caused together with major disruption to the prison system. The judge's remarks identify the appellant's culpability in the offence as high. He was not a mere bystander. He had encouraged the disorder, had participated in the mutiny and had himself caused significant damage. A sentence of 3 years before discount was not manifestly excessive. The appeal against sentence is therefore dismissed.
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 1603'
date: '2018-06-19'
judges:
- LORD JUSTICE SIMON
- MR JUSTICE NICKLIN
- HIS HONOUR JUDGE MAYO 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:
[2023] EWCA Crim 1023
Case No:
202302190 A2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CARDIFF
HIS HONOUR JUDGE DAVID WYNN MORGAN
Case No: 61CY0191122
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
08/09/2023
Before :
LORD JUSTICE POPPLEWELL
MR JUSTICE LAVENDER
and
MR JUSTICE BRYAN
- - - - - - - - - - - - - - - - - - - - -
R v KEILAN ROBERTS
A REFERENCE BY HIS MAJESTY'S ATTORNEY
GENERAL UNDER SECTION 36 OF THE
CRIMINAL JUSTICE ACT 1988
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Jeffrey Jones (
assigned by
the Registrar of Criminal Appeals)
for
Keilan Roberts
Philip McGhee
(instructed by
His Majesty’s Solicitor General
) for
His Majesty’s Attorney General
Hearing date : 7 September 2023
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT
Lord Justice Popplewell:
1.
Shortly after 5 o’clock in the morning on Sunday 24 July 2022 the offender, Keilan Roberts, crashed his car on a country road in Wales killing his passenger Chloe Hayman. He was 21. She was 17.
2.
On 6 June 2023, he was sentenced by His Honour Judge Morgan at Cardiff Crown Court to four concurrent sentences of 3 years 9 months imprisonment for causing death by careless driving under the influence of drink and drugs in excess of the prescribed limits, contrary to
s. 3
A(1)(b) and (1)(ba
) Road Traffic Act 1988
. Count 1 reflected the excess alcohol and counts 2 to 4 three different drugs, namely benzoylecgonine (‘BZE’), which is the primary metabolite of cocaine, ketamine and MDMA,
3.
His Majesty’s Solicitor General seeks leave to refer the sentences as unduly lenient pursuant to
s. 36
Criminal Justice Act 1988
.
4.
The facts in more detail are as follows.
5.
The offender and his friend Regan Gittings were planning to go to a nightclub in Pontypridd on the Saturday night. They arranged for a friend, Jaimie Huntley to drive them there and back in return for cash. The offender left his car, a Skoda Octavia, in Deri. Mr Huntley picked them up at about 5.15 in the afternoon and drove them to the nightclub. He agreed to return at 4 am to take them back.
6.
Ms Hayman was at the nightclub with a friend, who left before she did. Mr Huntley returned shortly after 4 am and collected the offender and Mr Gittings. Chloe Hayman was now with them.
7.
Mr Huntley thought they were all drunk and sleepy. He drove and stopped at a Texaco garage in Nelson. Mr Gittings bought wine and cans and bottles of alcohol, some of which he gave to the offender. Mr Huntley then drove on.
8.
In Deri, the offender asked Mr Huntley to stop by his car so he could get something. The offender and Chloe Hayman went to the offender’s car and both got in. Mr Gittings had a bad feeling about the offender getting into his car. He flagged him down and spoke to him through the window and asked him to get out. The offender, however, drove off intending to go to his home in Rhymney with Chloe. She was in the front passenger seat.
9.
Mr Huntley followed in his car with Mr Gittings, though at a distance. Mr Huntley thought the offender was travelling “at about 40 mph” but otherwise his driving “didn’t look too bad”.
10.
The accident occurred on the road into the village of Fochriw, Gwent. On the approach to the village, the road bends sharply right and then left. A short straight section then leads to a shallow right-hand bend just prior to a cattle grid which separates the village from the surrounding open hillside. There are no edge of carriageway markings on the road, though it is bordered by square edged kerb. There is a footway on the offside. The opposing traffic lanes are separated by painted hazard lines. There are evenly spaced streetlights along the offside of the road. The applicable speed limit is 30 mph.
11.
A road sign warns of the cattle grid on the approach. The sides of the cattle grid are bordered by metal fencing which runs parallel with the carriageway, with the ends highlighted by black and white marker posts. On the nearside and to the left of the metal fencing is a stone wall running perpendicular to the roadway.
12.
The road was wet but there was no standing water on it and visibility was unimpaired. There was a long clear view along the straight section of the road to the cattle grid, where the accident took place. A subsequent investigation report concluded that the offender’s vehicle travelled up onto the curb a short distance from the cattle grid. Its nearside headlight then collided with the nearside marker post and the metal fencing beside the cattle grid. Mr Huntley, in the car a little distance behind, described the offender “skidding out of control” on the approach to the cattle grid on the descent into Fochriw. There was no evidence from road markings of loss of control or any avoiding action taken by the offender prior to the point of impact. It was not possible to make a forensic estimate of the speed of the offender’s car prior to, or at, the point of impact.
13.
Mr Huntley drove to the scene of the collision and stopped his car. Barry Rees, a nearby resident, arrived at the scene of the collision shortly afterwards. He saw the offender still in the driver’s seat of the Skoda Octavia and drinking from a bottle of beer. He described the offender as obviously very drunk: “blotto”. Mr Rees dialled 999. He then saw the offender get out of his car and sit on the kerb and start to drink another bottle of beer. The offender told him he had not been drinking at the time of the collision and had just opened “a few bottles to take the edge off”.
14.
The offender also dialled 999 and spoke to an operator. He said there had been a collision and a fatality. He gave his name. He was tearful during the call. The offender went to sit inside Mr Huntley’s car.
15.
The fire service arrived at the scene about 20 minutes after the accident. Chloe Hayman was found slumped in the front passenger seat of the offender’s car. She had evidently suffered a catastrophic thoracic injury, and was pronounced dead at the scene.
16.
When police arrived shortly after, the offender was standing in the road by his car. He smelled strongly of alcohol and was unsteady on his feet. His eyes were glazed and his pupils were dilated. He slurred his words. His demeanour was captured on body worn CCTV footage. He had an unopened bottle of Peroni beer in his pocket. Police found empty bottles of beer on the grass verge by the front of the offender’s car and also inside and near to Mr Huntley’s car.
17.
The offender was asked to perform a roadside breath test. He told police he had recently consumed alcohol. He said he knew he would fail the test because he had drunk three bottles of beer after the accident. He denied drink driving. At 05.43 hours he provided a specimen of breath which showed no reading but gave a result of ‘fail’.
18.
He was arrested and cautioned. He made no reply, but then repeated that he had drunk alcohol after the accident.
19.
At 08.24, some 3½ hours after the accident, he provided a sample of blood. During the procedure, he told the police he had drunk four alcoholic drinks shortly after the collision had happened. He then told the police, “I don’t know if it will make any difference but I am extremely sorry for the girl’s family.”
20.
The offender was interviewed under caution and in the presence of a solicitor by police later on Sunday 24 July 2022. He said that he did not know the exact number of drinks he had consumed that night. He said he drank two or three pints of light beer in the nightclub, around 6 or 7 pm. He said he also had a double vodka and lemonade. He later added that he had also had a mouthful of wine before going into the nightclub. He thought he was tipsy at one point but not drunk. He said he finished his last drink in the nightclub around 9 pm. He said he had met Chloe at the nightclub and must have asked her to come back to his house though he was unaware of how she had come to be in the car driven by Mr Huntley. He said that when they both got into his car at Deri he felt fit to drive. He set off to drive back towards his house in Rhymney. He wanted his car to be back at home because it would be more convenient for him the next day.
21.
He said he was driving between 30 and 40 mph prior to the accident. He negotiated two bends and drove down a straight part of the road. He then clipped a stone wall on the left hand side and the collision occurred. He was familiar with the stretch of road downhill towards Fochriw. He said he was not clear as to what had happened. He said the impact was the first he knew that he had crashed.
22.
He said that after the collision he then drank two bottles of Peroni beer which he had in his car for when he got home. He said he had done so because it was a traumatic situation and he thought it might help him. He drank these in quick succession, by around 5.15 am. He had been found in possession of a third bottle of Peroni.
23.
He said he had taken “half a pill” of ecstasy on the Friday night but no other controlled substances since then.
24.
He said he was “extremely sorry” for what had happened.
25.
A vehicle examination report confirmed that the offender’s car was ten years old and had no mechanical faults that contributed to the collision. The car was, however, not in a fit state to be on the road and would have failed its MOT test. This was because the rear tyres each had a dangerous defect, in that each was older than the car itself and the tread depths were not in accordance with requirements.
26.
In interview the offender said he had owned the Skoda Octavia since February 2022 and he drove it daily. He said he checked the tyres “a couple of times a week” and had last checked them “last week” when they had looked intact.
27.
The offender’s blood sample was analysed. Taking account of the lapse of time between the collision and the provision of the evidential blood sample, and the offender’s assertion to police at the roadside that he had drunk three bottles of Peroni beer after the collision, it was calculated that the level of alcohol in the offender’s blood at the relevant time was approximately 96 mgs of alcohol per 100 mls of blood. This is above the legal limit of 80 mgs per 100 mls of blood. It is the equivalent of 48 μg per 100 mls in a breath sample, the legal limit being 30.
28.
Based on the blood analysis results and calculations, the offender’s account of the total amount of alcohol he had consumed did not explain the levels found in his blood, and more alcohol must have been consumed by him at some point.
29.
The blood analysis also showed the following levels of controlled drugs which were above the specified limits:
the level of BZE was not less than 118 μg/L, where the specified limit is 50 μg/L;
the level of ketamine was not less than 34 μg/L, where the specified limit is 20 μg/L; and
the level of MDMA was greater than 75 μg/L where the specified limit is 10 μg/L.
30.
The offender has held a full licence from May 2019 and had not previously committed any offence save for one of speeding on 2 November 2021 in respect of which 3 points were added to his licence and he was fined. There was also information before the court that, within the period of twenty months leading up to the date of the collision which killed Chloe Hayman, the offender had failed roadside breath tests for alcohol on five occasions, though later evidential readings had been within the prescribed limit. On another occasion in that time, he had provided a roadside breath sample which showed the presence of alcohol but just below the prescribed limit, and on two other occasions he had been involved in road traffic collisions.
31.
The offender pleaded guilty at the PTPH, having indicated an intention to do so about a week earlier. He had not given an indication of guilty pleas at the magistrates court.
32.
A Pre-Sentence Report was prepared, by a senior probation officer. The report noted that the offender put forward an explanation for the positive breath test which did not appear credible. He did however accept responsibility for his offences. He displayed evident remorse and shame, and he showed a level of victim empathy. He had suffered from depression and had had flashbacks since the collision.
33.
The offender had completed his education and had been in stable employment in plumbing since leaving college. He had, however, had an unsettled childhood which was characterised by parental neglect and exposure to domestic abuse. He had been living since the age of twelve with his maternal grandmother, with whom he played an active role in the care and upbringing of his younger siblings. She was now hospitalised following a road traffic collision which had left her in a coma. His imprisonment would undoubtedly therefore be difficult for his siblings.
34.
The offender’s father had died when he was aged fifteen years which triggered a deterioration in the offender’s behaviour and emotional well-being. He had a history of drug and alcohol misuse from his teenage years, likely by way of self-medication. This was an issue he minimised. There was some evidence of a history of driving having consumed alcohol, though this had not led to any convictions. The offender was “clearly devastated” at the consequences of his pattern of behaviour. He evinced an intention to engage with intervention to address his issues. His impulsive behaviour and poor decision making were partly attributable to his young age and immaturity.
35.
He presented a low risk of reoffending but a high risk of serious harm due to the risk factors he presented which had yet to be addressed.
36.
The Judge also had a number of character references speaking to the offender’s good qualities.
37.
The Judge heard two moving statements read by Chloe’s mother and stepmother which poignantly expressed the devastation caused by Chloe’s death in its effect on them and other members of the family and friends whose lives she enriched.
38.
In sentencing the Judge said that the offender’s drinking immediately after the accident was an attempt to frustrate what he knew would be the efforts of the police to establish how much he had previously drunk, an attempt in which he ultimately succeeded. He concluded that the inference to be drawn from the evidence was that the offender lost control of his car through momentary inadvertence, no doubt because of the alcohol and controlled substances he had consumed.
39.
The Judge referred to the Sentencing Council Guideline published in 2008 for the offence of causing death by careless driving when under the influence of drink and drugs contrary to
s3
A
RTA 1988
(‘the Guideline’). The Guideline predates the statutory amendment which added
s (1
)(ba) to
s. 3
A of
the 1988 Act
imposing the offence of causing death by careless driving when over the prescribed drug limits. The Judge was nevertheless right to use it: see
R v Adebisi
[2020] EWCA Crim 1446
at [14].
40.
The maximum sentence for these offences had been increased from 14 years to life imprisonment for offences committed after 28 June 2022, a few weeks before the accident. The Sentencing Council has issued revised guidelines with effect from 1 July 2023, a few weeks after this offender was sentenced. The Solicitor General does not suggest that the Judge made any error in applying the Guideline in force at the time of sentencing, without any adjustment for the increased maximum sentences at the date of offending or the new guidelines coming into force shortly after sentencing.
41.
The table for the sentence starting points and ranges in the Guideline is as follows
42.
In his clear, careful and structured sentencing remarks the Judge started his application of the Guideline by reference to the level of alcohol alone (i.e. the equivalent of 48 μg per 100 mls of breath), which fell within the lowest bracket (encompassing 35 to 50 μg per 100 mls), treating Count 1 as the lead offence. The conclusion from the evidence was that that the offender had lost control of his car through momentary inadvertence, which would put this in the lowest category with a starting point based on the level of alcohol of 18 months imprisonment and a range of 26 weeks to 4 years imprisonment. The Judge then treated the drugs element as requiring an upward adjustment for the totality of the offending. He did so by treating the culpability as comprising careless/inconsiderate driving falling not far short of dangerousness. That would move the starting point based on the lowest alcohol bracket to 4 years with a range of 3 to 6 years.
43.
The Judge
identified the aggravating factors as the dangerous state of the rear tyres; and the offender’s attempts to frustrate the breathalyser process. He identified the mitigating factors as the lack of previous convictions, and the fact that this would therefore be the offender’s first experience of imprisonment; the positive testimonials, which included references to difficulties in the offender’s upbringing; and the offender’s remorse. In balancing these he determined that the starting point should be adjusted upwards by one year to 5 years. Giving 25% credit for the guilty plea, he imposed concurrent sentences on the four counts of 3 years 9 months imprisonment. He also ordered disqualification from driving for 10 years and until an extended retest is passed. Following a query from counsel he indicated that he intended to add the period required by
ss. 35
A and B of the
Road Traffic Offenders Act 1988
so that the disqualification would be extended by the period of custody. He did not pronounce that the extension period was 22½ months, as it should be, but we take the opportunity to clarify that that is the effect of his sentence. He also ordered the victim surcharge.
44.
On behalf of the Solicitor General, Mr McGhee makes two submissions in support of the argument that the period of imprisonment of 3 years 9 months was unduly lenient. His first, and principal, submission is that the Judge made an error of principle in the application of the Guideline by looking first only at the level of alcohol and then putting the offending in a different level of driving culpability by reason of the drugs. Both the alcohol and the drugs should have been taken into account in placing the offending in the relevant vertical category in the table, not by moving across it horizontally. The drugs toxicity aggravated the offending by reference to those levels, not by reference to the degree of carelessness of the driving.
45.
This is not only wrong in principle but results in an unduly low starting point and range because of the way the table is structured, as explained in paras 6 and 7 of the Guideline. The Guideline provides:
“6.
The guideline is based on the level of alcohol or drug consumption and on the degree of carelessness.
7.
The increase in sentence is more marked where there is an increase in the level intoxication than when there is an increase in the degree of carelessness reflecting the14 year imprisonment maximum for this offence compared with a 5 year maximum for causing death by careless driving.”
46.
Mr McGhee submitted that had the Judge focussed on the level of alcohol and drugs together, he would have been bound to have put it in the highest category which is where there is 71 μgs or above of alcohol/high quantity of drugs, which when coupled with the lowest category of carelessness has a starting point of 6 years and a range of 5-10.
47.
We agree that the Judge made an error in approaching the table in the Guideline in this way. The question arises, however, whether as Mr McGhee submitted, the correct category was that for ‘high’ quantity of drugs, or whether, as Mr Jones argued, the quantity of drugs was no more than ‘moderate’, which would give the same starting point as that used by the Judge, albeit by a different route, and only a slightly more elevated range.
48.
An assessment of what quantity of drugs qualifies as ‘high’ and what as ‘moderate’ is, in our view, informed by the way the limits were set when the offence was subsequently introduced, and the evidence which lay behind the imposition of those limits. The 2014 Regulations prescribing the limits, with effect from 2 March 2015, made pursuant to the
Crime and Courts Act 2013
, followed a very full report published on 7 March 2013 by a panel of medical and scientific experts under the leadership of Sir Kim Wolff (‘the Wolff Report’) and public consultation on proposals made in the light of it. The Wolff report considered a wide range of empirical data on the effect of various levels of controlled drugs and the extent to which they impaired driving. In relation to BZE, it identified that if only BZE, and not cocaine itself, was found in a sample it indicated that the person was in the ‘come down’ period following acute intoxication, resulting often in tiredness. It recommended a threshold of 80 μg/L for cocaine with the threshold for BZE of 500 μg/L. For MDMA, the typical range of blood intoxication for the acute phase was 100-400 μg/L with a median of 320 μg/L. The come down phase was typified by tiredness and lethargy. The recommendation for the limit was 300 μg/L for the presence of MDMA alone but 150 μg/L where combined with the presence of alcohol. For ketamine, feelings of drowsiness and unreality were prominent at blood levels of 50-200 μg/L. The recommendation was of a limit of 200 μg/L for the presence of ketamine alone and 100 μg/L when in conjunction with alcohol.
49.
As is apparent from these figures, the limits imposed by the Regulations were very much lower than the Wolff report recommendations. This was explained in the Ministry of Transport’s Consultation Document in July 2013 as being because for controlled drugs, as distinct from those which might be medically prescribed, there should be a policy approach of zero tolerance, in order to serve as a strong deterrent to drug driving.
50.
It is clear, therefore, that impairment of driving ability is not a necessary ingredient of the offence, which can be committed by the presence of controlled drugs at very low levels. That for MDMA, for example, at 10 μg/L is below the level at which the Wolff Report describes impairing effects.
51.
Whilst the extent to which the intoxicant drugs impair driving is not an ingredient of the offence, it is nevertheless relevant in determining the seriousness of the offence, as this Court has said on a number of occasions: see
R v Mohamed
[2020] EWCA Crim 596
[2020] 4 WLR 1
at [24]; and
Adebisi
at [24]. That is apparent from the list of factors set out at page 3 of the Guideline as common examples of issues which determine the seriousness of the offence and include “consumption of illegal drugs where this impaired the offender’s ability to drive”. We take it to be self-evident that the greater the impairment, the more serious the offending.
52.
In
R v Roberts (Karl)
[2018] EWCA Crim 2965
[2019] 1 Cr. App. R. (S.) 49, this Court said at [24] that the sentencing judge in that case, having assessed that the case fell within the ‘moderate’ bracket simply by reference to the level of cannabis in the sample, did not need to go on to a further question of the extent to which that cannabis actually impaired the offender’s ability to drive. The passage was cited with approval in
R v Norman
[2022] EWCA Crim 1738
[2023] 1 Cr. App. R. (S.) 38, at [24], to which Mr McGhee referred us. However
Roberts
was decided before
Mohamed
and
Adebisi
, which do not appear to have been drawn to the Court’s attention in
Norman
; and in
Norman
, the Court went on to say that in that case the sentencing judge had been entitled to reach and express the conclusion that the cannabis had caused the offender to lose consciousness, which was a finding of impairment. In our view it follows from the fact that the degree of impairment is relevant to an assessment of the seriousness of the offence that the sentencing court ought to consider impairment where it has the material to do so. In some cases expert evidence is given as to impairment. In others, inferences can be drawn from aspects of the evidence apart from blood sample results (see e.g
R v Myers
[2018] EWCA Crim 1974
[2019] Cr. App. R. (S.) 6) Where neither is the case, caution must be exercised in assuming impairment simply from a multiple of the limit for the offence, given the contents of the Wolff report and the rationale for setting the limits at a zero tolerance level.
53.
The Judge was given no assistance on this question. We agree with the Solicitor General that the evidence in this case taken as a whole would have required the Judge to move to the highest toxicity level, applicable for high quantity, because there was a body of evidence showing substantial impairment of the offender’s driving ability. The levels of the drugs were all in excess of the limit by some margin, and in the case of the MDMA over 7 times the limit. This was in a sample taken some 3½ hours after the accident. Their effect has to be considered not individually, but in conjunction with each other, and in conjunction with the alcohol level, which was itself not far short of the middle category. Even if not in the acute phase of the effect of the drugs, the offender was at the least in the ‘come down’ phase involving increased tiredness, which is itself a dangerous impairment to driving ability.
54.
Mr Huntley’s view, which he expressed to Mr Gittings when they set off to follow the offender, was that he was drunk and unfit to drive. Mr Gittings had sought to persuade him not to drive. Mr Rees described him as “blotto”, albeit after he had consumed one or two bottles of Peroni at the roadside. Mr Rees regarded himself as good judge of whether people were drunk by reason of having worked part time in a pub. A reading of the transcript of the offender’s 999 call suggests that he was either drunk or under the influence of drugs or both. The body worn police cameras confirmed his demeanour as heavily intoxicated by drink and/or drugs. All these observations suggest a substantial degree of impairment by a combination of drink and drugs.
55.
The starting point should therefore have been one of 6 years, not 4 years. With an uplift of one year for the balancing of aggravating and mitigating features, that would have resulted in a sentence of 7 years before reduction for plea. At 25% this would have resulted in a sentence of 5 years 3 months.
56.
Mr McGhee’s second and subsidiary submission was that the Judge had failed to give adequate weight to the aggravating factors, and in particular had not taken account of the aggravating feature that Mr Gittings had tried to dissuade the offender from setting off in his car from Deri.
57.
Mr Gittings’ evidence about this in his statement was as follows:
“Jamie parked on the road and allowed Keilan to reverse out. I had a bad feeling about him getting in the car, he is my best friend, I didn’t want anything to happen to him. Jamie and I waited whilst he reversed out onto the road, I beeped the horn on Jamie’s car and flagged him down. We were still parked up and he pulled up beside us on our passenger side to his driver’s side. I could see that Kielan had his seat belt on and I spoke to him through his open driver’s window and asked him to get out of the car, in my opinion he was fit to drive although I know that he had been drinking, I wanted to protect him from crashing and losing his licence. Keilan was getting arsey with me saying “Drive like what” when I was challenging him.”
58.
Although this account involves Mr Gittings seeking to dissuade the offender from driving, it is not premised on his either thinking or saying that he was unfit to drive. It is difficult to identify what reason he did give to the offender for not driving, on his account. The account is internally illogical and Mr Huntley’s statement makes no reference to a conversation.
59.
In these circumstances, we do not consider that the Judge can properly be criticised for failing to treat this evidence as significant aggravation. Even if it was to be accorded some weight, we do not consider that increasing the starting point by one year for the balance between the aggravating and mitigating features could properly be said to be outside the range reasonably available to the Judge. As Lord Lane CJ said in the oft-cited passage in
Attorney General’s Reference (No. 4 of 1989)
[1991] WLR 41 at p.45H, sentencing is an art, not a science, and the exercise of quantifying the weight to be given to aggravating and mitigating factors, and in reaching a balance between them, is an exercise of judgement which defies precision or prescriptive quantification and for which there is no one right answer. The evaluation may properly fall anywhere within a range.
60.
This is also an answer to Mr Jones’ submissions that the Judge gave inadequate weight to the mitigating features. The Judge identified them, and the weighting he gave to them was with the reasonable range of his evaluation. Indeed we would agree with it.
61.
Mr Jones also submitted that the Judge should have given a full 1/3 discount for plea. We cannot accept that submission; the charges which formed the subject matter of the indictment were before the offender at the magistrates court and he gave no indication at that stage of an intention to plead guilty. There was nothing he needed to investigate further to know that he was guilty as charged.
62.
Our conclusion, therefore, is that the error in the Judge’s approach to the table in the Guideline resulted in a sentence which was unduly lenient. We grant leave. We quash the sentences on counts 1 to 4 and replace them with a sentence of 5 years 3 months imprisonment on each count, to run concurrently. We increase the length of the disqualification by adding to the discretionary 10 year period passed by the Judge a period of 31½ months to ensure that the disqualification takes place from the date of release. The total period of disqualification becomes 12 years 7½ months.
63.
The other aspects of the sentence remain undisturbed. | ```yaml
citation: '[2023] EWCA Crim 1023'
date: '2023-09-08'
judges:
- LORD JUSTICE POPPLEWELL
- MR JUSTICE BRYAN
``` |
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 2017
Case No:
201302518/A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Thursday, 24th October 2013
B e f o r e
:
MR JUSTICE HENRIQUES
MR JUSTICE BLAKE
R E G I N A
v
WAYNE THOMAS HOLDEN
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
NON-COUNSEL APPLICATION
J U D G M E N T
1.
MR JUSTICE BLAKE: On 18th April 2013 in the Crown Court at Birmingham, this appellant was sentenced by Mr Recorder Qureshi to a total of 20 months' imprisonment on five counts of burglary. At the same time a victim surcharge order in the sum of £80 was imposed. The judge then decided to exercise his powers to sit as a district judge and order that the victim surcharge order be remitted to 1 day's imprisonment and therefore be deemed to have been served. It appears that on the subsequent occasion on 8th May 2013, the Recorder of Birmingham directed that that sentence should stand with respect to the victim surcharge and should not be amended under the slip rule.
2.
There was then an appeal against sentence. As to the sentence for the burglary offences, permission was refused and it has not been renewed before us. The single judge however has granted leave solely in respect of the victim surcharge and that is now before us without a representation order having been made.
3.
This is not the first time that this court has had to deal with problems arising by the imposition of a victim surcharge order. However, the principles ought by now to be clear to those sentencing in the Crown Court and advocates appearing in such cases.
4.
The mandatory surcharge can only be made where every offence for which the appellant has been sentenced was committed after 1st October 2012. If any one of the offences occurred before 1st October 2012, then the previous regime applies and a surcharge should only be made if the sentence included a fine. Those principles have been made plain on more than one occasion but most recently by the decision of this court in
R v David Stone
[2013] EWCA Crim 723
, at paragraphs 50 to 17. The court there expressed its concern of the number of occasions with which these problems were coming before the courts and urged care be taken by all those concerned in the sentencing process to ensure that the principles were correctly applied. Sadly, that did not happen in this case.
5.
It did not happen in this case because one of the burglaries that was the subject of this indictment had occurred on 1st September 2012 and thus predated the 1st October 2012. No victim surcharge therefore fell to be made automatically and it could not be made, as a matter of discretion, because the sentence did not include a fine. Further, for completeness we should point out that the powers to direct that a period in custody should count towards the victim surcharge may have been misunderstood.
6.
Section 139 of the Powers of Criminal Courts (Sentencing) Act 2000 empowers the fixing of a default term for a fine but it has not been amended to include victim surcharges. It is therefore not permissible to fix a term in default in these circumstances.
7.
There is of course power to give time to pay. That is provided under section 141 of the Powers of Criminal Courts (Sentencing) Act, through the insertion into it of paragraph 13 of Schedule 9 of the Administration of Justice Act 1970. It therefore appears that the judge's attempt to mitigate the effect of the victim surcharge was also unlawful. We again have been referred to the recent authority of this court on that point, namely
R v John Burke
[2010] EWCA Crim 1092
, at paragraph 16 and 17.
8.
In the circumstances the surcharges imposed in this case are quashed. To this extent this appeal is allowed. | ```yaml
citation: '[2013] EWCA Crim 2017'
date: '2013-10-24'
judges:
- MR JUSTICE HENRIQUES
- MR JUSTICE BLAKE
``` |
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.
2009/05708/A4
Neutral Citation Number:
[2009] EWCA Crim 2610
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
Thursday 26 November 2009
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Judge
)
MR JUSTICE SIMON
and
MR JUSTICE ROYCE
- - - - - - - - - - - - - - - -
ATTORNEY GENERAL'S REFERENCE No. 90 of 2009
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
R E G I N A
- v -
STEVEN ROSS
- - - - - - - - - - - - - - - -
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 B Altman QC
appeared on behalf of the Attorney General
Mr R Jones
appeared on behalf of the Offender
- - - - - - - - - - - - - - - -
J U D G M E N T
Thursday 26 November 2009
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 Steven Ross. He was born in April 1973. He has many previous convictions.
3. On 2 October 2009, following a trial in the Crown Court at Blackfriars, before His Honour Judge Martineau and a jury, the offender was convicted of an offence of rape and an offence of assault by penetration. Before those verdicts were returned, and at the close of the case for the prosecution at trial, he pleaded guilty to an offence of inflicting grievous bodily harm as an alternative to the allegation of causing grievous bodily harm with intent. He was sentenced to ten years' imprisonment for the offence of rape, to ten years' imprisonment for the offence of assault by penetration, and to four years' imprisonment for the offence of inflicting grievous bodily harm. All those sentences were ordered to run concurrently, making ten years' imprisonment in all. The offender was ordered to comply with notification requirements.
4. The victim of the three offences was the offender's partner. There was a history of domestic violence.
5. In the early hours of 20 December 2008, while in the victim's home, the offender threatened to, and cut the victim with a knife. He then punched her with such force that she fell backwards and suffered a blow to her head. The immediate effect of that was to cause, among other injuries, a fracture in the region of the neck which produced complete paralysis from the neck downwards. Although she said to him that she was unable to move, the offender demanded sex. He picked her up, placed her over the bed, raped her anally and then inserted a deodorant spray canister into her rectum with sufficient force to cause internal injuries. For a period of about thirty hours he refused to heed her pleas that an ambulance should be called. He wanted her to agree, and she did eventually agree, to give the authorities a wholly untruthful account of how she had come by her injuries in a way which would exonerate him and implicate a completely fictitious taxi driver as the perpetrator.
6. The offender is 6ft 4in tall, a strong, well-built man. He weighed about 18 stones. The victim is 27 years old, 5ft 7in in height and 7 and a half stones in weight. She is a citizen of the Czech Republic. She has been in this country for five years studying English and working part-time. The owners of the place where she worked developed a loving and caring relationship towards her. They regarded her as a conscientious employee, reliable and popular.
7. The ground floor of their premises is used as a gym. One of its patrons was the offender. Gradually a relationship developed between the offender and the victim.
8. In August 2007 someone in the gym informed the owners of the premises that the victim was being assaulted. The victim had a split lip. The police were called and the offender was arrested. In March 2008 he pleaded guilty to common assault. A community order was imposed with a supervision requirement of twelve months' duration, together with an order for costs and compensation. At the time the victim complained that she had been assaulted five or six times during their relationship. After this incident she told her employer that she had ended her relationship with the offender. The employer did not believe her. Thereafter the victim turned up for work with different injuries. She gave "improbable accounts" of how she had come by them.
9. The victim's mother lived in the Czech Republic. She came to England to see her daughter. She first met the offender in May 2007 in London. Between the end of 2007 and the beginning of 2008 the offender and the victim visited her mother's family in the Czech Republic. In October 2008 the victims' parents visited her in London. On both occasions the victim's mother witnessed acts of violence by the offender towards her daughter. Her parents described an occasion in October 2008 when the offender became angry and threatened the victim with a knife.
10. At about 1pm on Sunday 21 December 2008, nursing staff at Hammersmith Hospital reported to the police that a female patient had just been admitted to the Accident and Emergency Department. The patient was this victim. She had been delivered to hospital in a private taxi. She was accompanied by the offender. He gave the name Steven James. The report to the police was that the victim had injuries to her face and her ribs. She complained of pain in her back and extremities. Police officers who attended the hospital observed that she had scratch marks over her face and a black eye, and that she was unable to move.
11. When the victim first spoke to the police she gave them a detailed, but untruthful, account of what had happened. There can be no doubt that she did so in an effort to cover up what the offender had done, almost certainly because she was terrified. Her explanation was that she had been working in a bar on the evening of Friday 19 December. She had left at about 3am on 20 December. She was unable to catch a cab from a local minicab firm and got into a minicab which pulled up at the side of the road. When the cab arrived a few doors away from her home, the driver stopped the car, locked the doors, jumped into the back of the vehicle, kissed her neck and produced a knife which he placed against her forehead and her neck. She managed to escape, but she was followed by the driver who kicked her in the back.
12. A second police officer spoke to the offender. He provided a story which dove-tailed with that offered to the police by the victim. He said that he found her outside on the pavement, a few doors away from her home. She could not get up, so he carried her to the house. She did not want an ambulance but wanted to go to bed. Later that day, although she was still unable to move, she had refused to go to hospital. On the Sunday he insisted that he would take her to hospital. He ordered a taxi which took them both to the Accident and Emergency Department.
13. Later that evening the victim was transferred by ambulance to Charing Cross Hospital for specialist treatment.
14. We must go back. On the night of Friday 19 December the victim went to work as usual. She was in good spirits. She left work just after 3am on the Saturday. Later that day, about half an hour before she was due to start work, one of the owners of her place of employment received a text message from a number that she did not recognise. That message gave the information that the victim was in hospital, having twisted her ankle, and thus provided an excuse for her inability to arrive at work. At about 4.30pm the co-owner of the premises received a text message in similar terms. In fact, the text messages were sent by the offender at the behest of the victim, who sent them in the hope that the very fact that she was sending text messages rather than telephoning her employers (which is what she would normally have done) and their content might alert them to her plight.
15. At 2.15pm on the Saturday afternoon a text message was sent to the victim's telephone enquiring after her. The offender telephoned one of the victim's employers. He was crying. He gave the false account which was later to be given to the police of an assault and an attempted rape by a taxi driver.
16. None of this was sufficient to fool very sceptical, inquiring police officers. On the Sunday, in Charing Cross Hospital, the victim was re-interviewed. Although she gave an untruthful account, some discrepancies had emerged.
17. The offender was seen again. He confirmed his earlier account in broad terms. The officers then accompanied the offender to the victim's flat in order to obtain some clothing for her. There they found a significant amount of blood on the bedroom floor, on the bed sheets and on some items of furniture. The offender claimed that he had cut his finger on a knife and that was why the blood was there to be seen in the bedroom. After the departure of the officers, he attempted to clean the flat and he disposed of the items of bloodstained clothing that the victim had been wearing. He was arrested later that day outside Charing Cross Hospital on suspicion of causing grievous bodily harm. In interview he declined to answer questions. He provided a prepared statement in which he denied any assault on the victim.
18. Thereafter, a specialist search was conducted of the flat and the surrounding area. Among other items the police recovered from a metal bin several doors away from the victim's home, and in the opposite direction to where the offender claimed to have found the victim on the pavement, a bra and three ladies' tops. The victim later identified them as items of clothing she had been wearing on the Friday and Saturday.
19. From inside the victim's home the police recovered a deodorant spray canister measuring 4cm in diameter and 7cm in length. The spray head of the canister carried blood and faecal material. Scientific analysis confirmed that the DNA from both the blood and the faecal material matched the DNA profile of the victim.
20. In the meantime the victim's mother arrived in this country. She immediately went to see her daughter, who was in a critical condition. Her condition had deteriorated after her admission to hospital. At this stage she still supported the offender's false story. However, she gradually revealed to her mother that it was the offender who had been responsible for her injuries. In a short interview a few days later she confirmed that she had been punched by the offender in the eye. That was consistent with her black eye, which was there to be seen.
21. The offender was re-interviewed under caution. He declined to answer questions. He provided a second prepared statement in which he expressed concern that the victim was being put under pressure when she was unfit for interview.
22. The victim was interviewed again at her own request, and then again later. The interviews were conducted under ABE conditions. They were admitted as her evidence in-chief at the subsequent trial and she was cross-examined unscreened.
23. She told the jury that after leaving work she had collected the offender by cab. The offender had been angry. He was still angry when she met him. The offender had struck her. This had caused her to fall backwards and to strike her head on a portable electrical plug assembly. She added that, before striking her, the offender had armed himself with a knife with which he had threatened her and that he had cut her face with it. It was the blow and the fall that had caused her to suffer a heavily bruised eye, a collapsed lung and a cervical spine fracture which produced complete paralysis from the neck downwards. Unsurprisingly, the victim feared that she was seriously injured. She begged the offender to pick her up and put her on the bed. He disbelieved her. She complained that she was immobile. He demanded sex. He placed her onto her knees beside the bed with the top of her body leaning over the bed. She was unable to feel anything, but she was aware that he was behind her. She could feel him moving. It did not hurt because of the damage she had already suffered. She was unaware of how her trousers and knickers had been removed, but they were never recovered. It was clear from the scientific findings that the canister had been inserted by the offender into her rectum, causing bleeding.
24. Thereafter, the offender must have known of the pain and catastrophic condition of the victim. At one stage he carried her and placed her in a bath, fully clothed. She was incapable of getting out of the bath. During the rest of the Saturday and into the Sunday she pleaded with him to call for an ambulance. He would not do so until he secured her agrement that she would give the hospital and the police the untruthful, agreed account of how she had received her injuries, which she eventually offered to the police.
25. In evidence at trial the offender was asked why he had not called for an ambulance and had called instead for a taxi when he eventually called for assistance. He said that if he had called an ambulance, the ambulance staff would have been alerted and the police would have come to the conclusion that the explanation given to them was untrue. That would have led to his arrest and possible prosecution.
26. At one point in this ordeal the offender told the victim that he proposed to leave her unattended but would leave a mobile phone by her side. She told him that she was frightened that if he carried out this threat she would die because she was quite incapable of operating a mobile phone. This was one of the reasons why she agreed to tell the false story to the police.
27. For a period of about thirty hours the offender did absolutely nothing to assist the victim. All he was interested in was saving his own skin and getting her to agree to a false story.
28. On 24 February 2009 the offender was arrested on suspicion of rape. He was interviewed under caution. A prepared statement was produced. The allegation of rape was denied. He denied having had sexual intercourse with the victim. However, he made certain assertions about the nature of their sexual relationship. He claimed that they had regular consensual vaginal intercourse and regular consensual anal intercourse. When the victim was told of this assertion she strenuously denied any regular consensual anal intercourse. She said that on one previous occasion the offender, who was very keen to have such intercourse, attempted anal sex with her. She found it painful and repugnant, and had refused any repetition. On that basis the occasion of anal intercourse at the time of this rape was forced on her when the offender knew perfectly well that that was a form of sexual activity which she disliked intensely.
29. In evidence at trial, the offender admitted that he knew that the victim had been unable to move following the assault. He accepted that she had told him so. He claimed that he did not believe her. He denied any sexual activity. He admitted disposing of her clothing. He admitted failing to call an ambulance. He asserted that during their relationship the victim regularly inserted objects into her anal passage for her own sexual gratification. That, too, was a falsehood.
30. In hospital the victim was intubated and placed on a ventilator. Scans and X-rays were performed. Her left lung had collapsed. Air was discovered in the tissues under the skin in the lower neck, upper chest, in the mid-part of the chest and in the abdominal cavity. There were multiple pockets of free air in the pelvis, which suggested vaginal or rectal injury consequent on the insertion of the canister into her anus. There was a cervical spine fracture at level C5 to C6 (the lower part of the neck). This resulted in complete paralysis from the neck downwards, as well as all the consequent indignities in relation to bowel and bladder movements. Further description of the injuries to her genitalia and rectum is unnecessary. She developed deep vein thrombosis which led to blood clotting in the lungs.
31. Three rib fractures were discovered on X-ray. These were healing fractures, probably two months old. In her evidence the victim said that they had been caused by the offender when he had assaulted her. However, she also said that she had been persuaded by him to say that the injuries had been caused accidentally in a fall in the bathroom. The radiologist who gave evidence at trial expressed the view that the earlier rib fractures might have caused the lung to collapse during the fall from the blows on 20 December. An alternative explanation for the collapsed lung was the insertion of a tracheostomy tube on her arrival at the Accident and Emergency Department.
32. The injuries suffered by the victim are of a permanent and significantly disabling nature. She has been undergoing a rehabilitation programme delivered by a multi-disciplinary team. Although there has been progress in the movement of her upper limbs, the prognosis is that the victim will never walk again and will have to spend the rest of her life in a wheelchair.
33. The judge took the view that there was insufficient evidence to justify leaving to the jury the count of causing grievous bodily harm with intent. Accordingly, the only direct offence of which the offender was convicted was inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861
, for which the maximum sentence is five years' imprisonment. However, we must examine, as the judge had to examine, this case in its overall context. Even if the section 18 offence was not established, the fact was that the victim was subjected to these awful indignities at a time when she was helpless as a result of the violence meted out to her by the offender.
34. In addition to his conviction for common assault to which reference was made much earlier in this judgment, the offender has a number of relevant previous convictions. In total there are a total of 78 offences in the course of 38 appearances over a period of about twenty years. It is true, as the judge observed, that none was for sexual crime. The most significant are that in 1989 he was convicted of robbery; 1990, assault on the police and possessing an offensive weapon; 1996, affray; 1997, having a bladed article in a public place; 2002, possessing an imitation firearm with intent to cause fear of violence; 2004, disorderly behaviour; 2005, assault on the police; and 2007, assault.
35. In his sentencing remarks the judge analysed the way in which the offence had occurred. He noted the victim's paralysis and her helplessness when the offender "decided to indulge in anal sexual intercourse" -- something he enjoyed but she hated. After that, by way of sexual gratification or as punishment for her, the deodorant can had been inserted. He said:
"Your self-regard and total lack of humanity is astounding and utterly deplorable."
With that observation we entirely agree.
36. The question is not whether that observation is accurate, but whether the sentencing decision which followed the judge's analysis of the crucial facts in the case was unduly lenient. We have no doubt that it was.
37. The aggravating features of these offences are self-evident from our description of what happened to this young woman. We propose to summarise them again. There is the background history of violence by the offender towards the woman with whom he had an intimate relationship. In March 2008 he was convicted of common assault on her. He has the other previous convictions which we have recently narrated. On the occasion with which we are concerned, he struck her with such force that she fell to the floor. That produced the grave and disabling injuries which in the context of the rape offence rendered her completely defenceless. Before he struck her, he had been armed with a knife which he had used to threaten her and to cut her face. Knowing that the consequences of the violent blow he had administered and her resulting fall had been paralysis, he raped her anally. He then degraded her further by using a deodorant canister to penetrate her anus, in turn causing serious internal injuries. These offences were a grave breach of trust, not merely in the context of their personal relationship, but also because he knew that the victim found anal sex painful, distasteful and unacceptable to her. He carried out the attack when she could do nothing. He was completely merciless. He showed her no mercy whatever. Afterwards he refused to call an ambulance in order to see if something could be done to help her in her physical condition. Instead, he concocted a story which he required her to join so as to avoid any possible link between him as the man responsible for her injuries and passing that over to some unknown stranger. This young woman has been left seriously and permanently disabled as a result of the attack. The injuries are catastrophic.
38. When we look for any elements of mitigation, as to the offences of rape and sexual assault there is none. In relation to the offence of violence, there is the limited mitigation that the offender pleaded guilty.
39. We have read a letter written by the offender and we have looked at some of the qualifications he is seeking to achieve while in custody.
40. Anyone listening to this judgment will regard this as a truly appalling case of heartless brutality. These were offences of the utmost gravity. The evidence clearly demonstrated that the offender is dangerous and that he will continue to represent a long-term danger for the indefinite future. A sentence of imprisonment for public protection is the least possible sentence that is consistent with the safety of the public. That order is now made.
41. We turn to consider the period which must expire before the Parole Board can even begin to consider the possibility of release on the basis that the offender has ceased to be a danger. There are some cases, and this is one of them, in which the culpability and criminality of the offender are beyond the ambit of any guideline case or definitive guideline issued by the Sentencing Guidelines Council. It is not possible to cater for a crime like this.
42. The offender showed no mercy to this young woman. He merits none from this court. We shall assess the determinate sentence as 18 years' imprisonment. It follows from that that under statute the minimum prescribed period will be nine years. The time spent in custody on remand will count towards sentence.
43. The end result is that the offender must be kept in custody until it is safe for him to be released.
________________________________________ | ```yaml
citation: '[2009] EWCA Crim 2610'
date: '2009-11-26'
judges:
- MR JUSTICE SIMON
- MR JUSTICE ROYCE
- 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 1534
No. 2007/06255/B2, 2007/06257/B2 2007/06256/B2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Tuesday 24 June 2008
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Phillips of Worth Matravers
)
MRS JUSTICE DOBBS
and
MR JUSTICE UNDERHILL
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
- v -
DAVID MATTHEW KENNING
PAUL TERRANCE CHARLES FENWICK
PAUL JAMES BLACKSHAW
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr D Matthew
appeared on behalf of the Appellant David Kenning
Mr J Beck
appeared on behalf of the Appellant Paul Fenwick
Mr H Bowyer
appeared on behalf of the Appellant Paul Blackshaw
Mr T J Spencer QC
and Mr A Peet
appeared on behalf of the Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
THE LORD CHIEF JUSTICE:
1. On 15 May 2007, in the Crown Court at Derby, the appellant Paul Fenwick pleaded guilty to counts on two indictments. On the first indictment he pleaded guilty to count 3, which charged him with producing a controlled drug of Class C, namely cannabis. On the second indictment he pleaded guilty to the possession of a firearm without a certificate.
2. All three appellants were subsequently tried in the Crown Court at Derby on the first indictment, the first two counts of which charged them as follows:
"COUNT 1
STATEMENT OF OFFENCE
Conspiracy to aid and abet the production of a controlled drug, contrary to
section 1(1) of the Criminal Law Act 1977
.
PARTICULARS OF OFFENCE
.... on a day between the 1st day of January 2004 and the 3rd day of March 2004 conspired together to aid and abet the commission of an indictable offence, namely the production of a controlled drug of Class C, namely cannabis.
COUNT 2
STATEMENT OF OFFENCE
Conspiracy to counsel the production of a controlled drug, contrary to
section 1(1) of the Criminal Law Act 1977
.
PARTICULARS OF OFFENCE
.... on a day between the 1st day of January 2004 and the 3rd day of March 2006 conspired together to counsel the commission of an indictable offence, namely the production of a controlled drug of Class C, namely cannabis."
All three appellants were convicted on count 1. On count 2 Blackshaw and Fenwick were convicted and Kenning was acquitted. Fenwick was also convicted on a count that was re-numbered as count 3, of possessing a controlled drug, namely cannabis, with intent to supply.
3. The appellants were sentenced as follows: Kenning, on count 1, 21 months' imprisonment; Blackshaw, on counts 1 and 2, a suspended sentence order of ten months' imprisonment suspended for twelve months, with a requirement to carry out 240 hours of unpaid work, concurrent on each count; and Fenwick, on counts 1 and 2, 21 months' imprisonment, concurrent; on count 3, nine months' imprisonment, consecutive; on count 4, nine months' imprisonment, concurrent; and on count 1 on the second indictment, six months' imprisonment, consecutive, making a total of 36 months' imprisonment.
4. The appellants all appeal against their convictions having been granted leave by the full court. Kenning and Fenwick have been granted bail.
The Facts
Counts 1 and 2
5. Kenning and Fenwick were partners in DP Enterprises in Derby, which owned a business called Hydroponic Wholesale. Kenning ran the wholesale business and Fenwick ran a retail business (The Hydroponic Centre) from the same premises. Blackshaw occasionally worked at The Hydroponic Centre.
6. The Hydroponic Centre sold hydroponic equipment, cannabis seeds and cannabis-related literature. Notices were displayed in the shop informing customers that it was illegal to cultivate cannabis.
7. In 2004 and 2006 prosecutions were brought against producers of cannabis on whose premises equipment from The Hydroponic Centre was found. Thereafter the police made two undercover visits to the centre which were covertly recorded.
8. On 18 January 2006 the first visit took place. Fenwick and Kenning were in the shop. The officer dealt with Fenwick. He said that he wanted to grow plants in the loft of his house and discussed the equipment required. Fenwick said that he could provide anti-detection foil to prevent the police from detecting heat given off from the light bulbs.
9. On the second visit, on 24 January 2006, another officer spoke to Blackshaw and said that he wanted to grow plants to make money. Blackshaw told him that he could supply everything needed and also referred to anti-detection measures. He advised that the first crop could yield between £4,000 and £8,000. He referred the officer to Fenwick, who had just arrived, and who gave similar information and predicted a return of £7,000 from the first crop.
10. Police then searched the premises and the homes of the appellants. Equipment to remove flowers from cannabis plants and to extract trichomes for pressing into cannabis resin was found. At Fenwick's home the police found 22 ounces of flowering tops from cannabis plants and 14 immature plants under cultivation (which formed the subject matters of counts 3 and 4), and an antique firearm (which formed the subject matter of count 1 on the second indictment).
11. These facts, which were adduced in evidence before the jury, posed a problem for the prosecution. The items purchased from The Hydroponic Centre that had been used by the purchasers to grow cannabis might equally have been used to grow plants that could be grown lawfully. There was thus no basis upon which the appellants could have been charged with aiding and abetting the production of cannabis simply because that they had sold the items in question. So far as the undercover police were concerned, the evidence demonstrated that the appellants were prepared to aid and abet them to commit the offence of growing cannabis, but this did not of itself amount to any offence. The prosecution decided that the answer to their problem was to bring charges in the form of those of the first two counts. The defence made no challenge to those counts before the trial began.
The Submission of No Case
12. At the end of the prosecution case, when the evidence that we have summarised had been given, Mr Beck, who was representing Fenwick, submitted that there was no case to answer on the evidence adduced. His submission was of equal applicability to Fenwick's two co-defendants. His submission was that a statutory conspiracy could not be committed unless the acts which the conspirators themselves agreed to do would, if carried out, result in the commission of a criminal offence by one of the conspirators. No conspiracy had been made out because none of the conspirators had agreed to cultivate cannabis. Counsel for the prosecution submitted that the indictment had been specifically drafted to get round the difficulty of proving an agreement that involved the person who was actually to produce the cannabis. Aiding and abetting the production of cannabis was an offence. That was precisely what the defendants had agreed to do. The judge accepted this submission and ruled that there was a case to answer. He said:
"I shall sum up the case to the jury and I am sure you will make a note of what I say. If we differ on this, I will be taken elsewhere."
And, indeed, he has been.
The Summing-Up
13. The material part of the judge's summing-up was as follows:
"Before I tell you exactly what it is the prosecution must prove in respect of the conspiracy aspect in counts 1 and 2, let me start by saying that it is clearly an offence -- and it has not been denied by the defendants -- to produce cannabis by, for example, deliberately and knowingly germinating cannabis seeds. So it is an offence to produce cannabis. It is also an offence to aid and abet someone to produce cannabis. Further, it is an offence to counsel or advise, another word for counsel, to counsel someone to produce cannabis. Those are distinct offences.
By 'aid and abet' what I mean is help, assist or encourage them. So a person can aid and abet the production of cannabis by, for example, deliberately supplying seeds and equipment to someone else so that that other person can then go on to produce cannabis. If that person did so supply seeds and equipment and, first, he realised that his supplying of the seed and equipment was capable of assisting the commission of the offence and, secondly, he foresaw that the commission of the offence was a real possibility and, thirdly, that when he supplied the seeds and equipment he intended to assist the person he had supplied to produce cannabis, then that person would be guilty of the offence of aiding and abetting the production of cannabis. It is not necessary to prove, as Mr Beck said, that the cannabis seeds sold actually germinated. He has got to supply in the realisation, as I have said, that it is capable of assisting the commission of the offence, that he foresaw the commission of the offence was a real possibility and, when he supplied the seed and equipment, he intended to assist the person he had supplied to produce cannabis.
That is the offence of aiding and abetting and, likewise with counselling, by counselling I mean advising. It is an old-fashioned word, 'counselling', but it is really advising. Likewise in respect of counselling the production of cannabis, a person in similar circumstances to those I have described would be guilty of counselling the offence if he deliberately gave advice to someone regarding the production of cannabis; that is, he realised that the giving of advice was capable of assisting the commission of the offence; he foresaw the commission of the offence was a real possibility; and, when he gave the advice in respect of the growing of cannabis, he intended to assist that person he had supplied to produce cannabis. So that is the offence of counselling.
Now, to return to the counts on the indictment, counts 1 and 2, just as it is a criminal offence to aid and abet the production of cannabis and just as it is an offence to counsel the production of cannabis, as I have described, so it is a criminal offence for two or more persons to agree with one another to commit these offences. That is what the defendants are charged with in respect of counts 1 and 2 on the indictment. Count 1 is an allegation that they agreed to aid and abet the production; and count 2 is an allegation that they agreed to counsel the production of cannabis. As I say, an agreement to commit an offence is called a conspiracy. That is the nature of the charge here."
The Appellants' Submissions
14. The appellants repeat the argument advanced by Mr Beck when he submitted that there was no case to answer. They further submit that the offence of conspiring to aid and abet is unknown to law, relying on the decision of the Court of Appeal given by Hodgson J in
R v Hollinshead
[1985] AC 975
. It seems to us that these two submissions are different ways of saying the same thing.
The Prosecution's Submissions
15. Mr Spencer QC for the prosecution has referred first of all to the fact that in the House of Lords in
Hollinshead
Lord Roskill expressly left open the question of whether the Court of Appeal had been correct to rule that an offence of conspiracy to aid, abet, counsel or procure contrary to
section 1(1)
of
the 1977 Act
is a legal impossibility. Lord Roskill suggested that if and when that issue arose it should be considered de novo. Mr Spencer has relied upon a painstaking analysis of the common law origin of aiding, abetting, counselling and procuring to found the submission that this is an offence that is and always has been known to law. He submitted that this invalidated the reasoning of the Court of Appeal in
Hollinshead
. When asked to expand on that, he submitted that there was a criminal offence of aiding and abetting, even if the primary offence which the offenders sought to aid and abet was never committed. Insofar as any authority suggested to the contrary, he submitted that such authority was wrong.
Discussion
16. We propose to start with the passage from the summing-up that we have already quoted. The judge directed the jury that the offence of aiding, abetting, counselling or procuring the commission of an offence could be made out even if the latter offence was never in fact committed. This direction was unsound. "There can be no conviction for aiding, abetting, counselling or procuring an offence unless the actus reus of the substantive offence is shown to have occurred": see Archbold 2008 at 18-30 and the authorities there cited. "The actus reus of an accessory involves two concepts: (a) aiding, abetting, counselling and procuring (b) an offence": see Blackstone 2008 at A5.2 and the authorities there cited. Furthermore, it is not an offence to attempt to aid, abet, counsel or procure the commission of an offence: see the
Criminal Attempts Act 1981, section 1(4)
(b).
17. It is possible of course for persons to agree to aid and abet an offence that they intend or expect will be committed by a person who is not party to that agreement, but it is hard to conceive of such an agreement constituting a statutory conspiracy contrary to
section 1(1) of the Criminal Law Act 1977
. That section insofar as material provides:
"(1) .... if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either --
(a)
will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement ....
....
he is guilty of conspiracy to commit the offence or offences in question."
18. The course of conduct to which the would-be aiders and abettors agree will, ex hypothesi, involve their performing acts that are no more than accessory to the offence intended to be committed by the primary offender. If they do all those acts, they will not amount to an offence unless the primary offender commits the primary offence. There can be no certainty that he will do so. Thus, even if the aiders and abettors do all that they agree to do, their course of conduct will not necessarily amount to the commission of an offence. This result is not surprising. It would be odd if it was an offence to conspire to aid and abet, although no offence to attempt so to do.
19. The authors of the eleventh edition of Smith and Hogan's Criminal Law argue at page 367 that the course of conduct ought to include the intended conduct of a person not party to the agreement. They conclude, however, at pages 369-370 that as a matter of construction an agreement to aid and abet an offence cannot constitute a statutory conspiracy. The relevant passage reads as follows:
"D1 and D2, knowing that E intends to commit a burglary, agree to leave a ladder in a place where it will assist him to do so. E is not a party to that agreement. If E uses the ladder and commits burglary, D1 and D2 will be guilty of aiding and abetting him to do so. Are they guilty of conspiracy to commit burglary? Conspiracy requires an agreement that will involve a 'course of conduct' amounting to or involving 'the commission of an offence'. If the course of conduct is placing the ladder, it seems clear that they are not guilty. Placing the ladder is not an offence, not even an attempt to aid and abet burglary, since the
Criminal Attempts Act 1981
makes it clear that this is not an offence known to the law. However, it is argued above that 'course of conduct' should be interpreted to include the consequences intended to follow from the conduct agreed upon, including the action of a person not a party to the agreement -- for example, V, who takes up poisoned tea left by D and E and drinks it. So it might be argued, consistently with that, that the course of conduct ought to include E's use of the ladder in committing burglary. If that should be accepted, the next question would be whether the burglary is 'the commission of any offence by one or more of the parties to the agreement'. E is not a party to the agreement, so the question becomes, do the words 'commission of any offence' include participation in the offence as a secondary party? Since all the parties to a conspiracy to commit an offence will be guilty of that offence if it is committed, but
section 1(1)
contemplates that it may be
committed
by only one of them, it is clear that 'commission' means commission by a principal in the first degree. It is submitted therefore that an agreement to aid and abet an offence is not a conspiracy under the Act."
20. The Court of Appeal in
Hollinshead
said at page 986 that they were "in complete agreement" with the reasoning in this passage. They went on to hold, however, that the facts of that case could not in any event amount to the statutory conspiracy charged. These shortly were that the appellants had manufactured and sold apparatus designed to alter the operation of electricity meters, thereby defrauding the suppliers of the electricity. The appellants were, however, wholesalers and therefore too remote from the ultimate fraudulent use of their products to be guilty of conspiring to aid and abet, even if such an offence existed. It was on the latter ground that Lord Roskill in the House of Lords held that no statutory conspiracy could be made out.
21. Whether, in these circumstances, the reasoning of the Court of Appeal remains a binding precedent may be a matter for debate. Whether it is or not, we endorse the court's conclusion that an agreement to aid and abet an offence is not in law capable of constituting a criminal conspiracy under
section 1(1)
of
the 1977 Act
. We are unable to see how the origin of the offence of aiding and abetting so studiously researched by counsel for the Crown has any relevance.
22. It follows that the indictment in counts 1 and 2 charged offences unknown to law. The judge should have acceded to the submission of no case to answer in respect of those counts. The directions that he subsequently gave to the jury were defective in law. The convictions of all three appellants on count 1 and of Fenwick and Blackshaw on count 2 must accordingly be quashed.
Count 3
23. The facts in relation to count 3 were as follows. On 2 March 2006 police searched the home address of Fenwick at 31 Carlton Road, Derby. In the cellar of the premises they found three bags containing a total of 624 grams (22.28 ounces) of "flowering tops" from cannabis plants with a THC content varying between 11 and 20%. In addition, there was a quantity of cannabis plant waste material consistent with being discarded from the crop of plants that had grown the flowering tops. The appellant Fenwick readily admitted that he had grown the plants and that he intended to use the cannabis for his own personal use, which he put at one-and-a-half ounces per week (a figure that was never disputed). Various paraphernalia and small quantities of cannabis were found elsewhere on the premises consistent with the smoking of cannabis for personal use.
24. In the cellar were found fourteen immature cannabis plants being grown in a "small-scale but quite sophisticated" hydroponic system, which would have provided a crop of a similar size to the flowering tops that were found. This was the subject matter of a further count of producing a controlled drug to which the appellant pleaded guilty earlier. These plants would have reached the harvesting point in their growth in about fourteen further weeks, which would have provided the appellant with a further supply at the point in time when the cannabis found would have been used up, given his claimed weekly consumption.
25. The system was not being used to maximum capacity as there were at least six further pots available standing empty, in which the appellant claimed that he intended to experiment with the growing of exotic plants. No "dealer lists", large amounts of money or packaging materials were found on the premises and no other evidence was adduced to show that the appellant had supplied or intended to supply any of the drugs found. The Crown advanced their case on the basis that it was possible to infer the intention to supply the cannabis from the amount found and all the circumstances of the case.
26. Mr Beck's submission is that the judge did not adequately direct the jury in relation to this offence. The only issue was whether Fenwick had this cannabis with intent to supply for his own use. In relation to this matter the judge directed the jury as follows:
"You may say, 'So far so good. We are satisfied that the prosecution have proved all those matters, because Mr Fenwick when he gave evidence admitted that he was in possession of that cannabis, the cannabis found at his house'. That is the cannabis we are talking about. But this is where the issue comes in this case. The prosecution must then go on to prove that at the time the defendant intended to supply that drug to another. Mr Fenwick says, 'No such intention whatsoever. This cannabis was for my own personal use. I was not going to supply it'. The prosecution say that he might say that, but look at the quantity he had. We will deal with the amounts in evidence. Look at the quantity and look at the circumstances. Was there more in the pipeline being grown? There was far too much for his own personal use. The prosecution say you can draw an inference that he had that amount because his intention was to supply others."
Later in the summing-up the judge said:
"Count 3 concerns Mr Fenwick alone and the issue there is: what was his intention? Are you sure he intended to supply the cannabis found in his possession to another?
That is how the defence put their case, again in general terms. On the other hand, the prosecution say, 'Let us start with count 3'. You can be sure, say the prosecution, that Mr Fenwick intended to supply that cannabis that was found at his house to other persons. Look at the amount he had, 624 grams, which was in the process of being dried or had dried. That is half a kilogram; that is 22 ounces. I use all those different measures because, as Mr Holm told us, drug users and dealers deal in both metric and imperial measure. The value, Mr Holm said, was over £2,000 if sold by the ounce, worth far more if sold in smaller amounts."
Later, when he rehearsed the evidence, the judge said:
"Mr Fenwick's home address at 31 Carlton Road in Derby was searched. That was done on 2 March and there are photographs of what was found behind divider 12. In a bedroom there was a self-seal bag with two seeds. In the cellar there was found the cannabis tops that we have spoken about. They are the subject matter of count 3 on the indictment, the cannabis that was found at Mr Fenwick's home.
Mr Holm commented in respect of the cannabis found there. He said if sold by the ounce, 22 ounces at £120 comes to £2,640. If sold by an eighth of an ounce, you would get £3,520 for it. So he is really telling you the difference in value of that cannabis if sold by the ounce or by the eighth of an ounce, but that is at £120 rather than £100 an ounce.
There was also discarded cannabis plant waste at the house, which is shown in the photographs, and immature cannabis plants that were representative of a total of about fourteen non-flowering plants that were shown there.
It was there Mr Holm commented on the growing cycle for cannabis because there were immature plants there found at Mr Fenwick's house. He said that the growing cycle for cannabis is twelve to sixteen weeks and each mature plant can yield between 14 and 56 grams; that is, a half to two ounces per plant every twelve to sixteen weeks.
As to the hydroponic equipment that was found there, it was fairly small scale, but it was quite sophisticated with all the equipment that he had there with it.
We know that the electricity account was investigated in respect of that house and it is conceded that it was not an excessive use of electricity there. The defence say that that shows that as a lot of electricity is required for the production and cultivation of cannabis, with the bill being moderate there was not a lot of cultivation going on."
Finally, the judge dealt with the evidence given by Fenwick as follows:
"Mr Fenwick said in respect of count 2, 'I accept the issue is: did I intend to supply that? Even though I had 22 ounces there ready for use, which had been valued at over £2,000', he said, 'no, it belonged to me. I was going to use it. I was going to convert it into hash, because I wanted to stop smoking. It was grown organically and it was grown for myself. I was using one and a half ounces per week and I did not intend to sell any of it'."
Towards the end of his summing-up the judge referred to the interviews, which were to similar effect. He said:
"As I say, you have got those in front of you. They refer to the amount he said he was drawing. He was asked about the cannabis itself, the 22 ounces found at his place, his house. He said that was worth about £2,000. It was grown organically. He was not selling it. He said that as well as having that cannabis that was dried, he also had other cannabis that was growing. He would not say that selling cannabis was an easy way to make money."
27. Mr Beck's submission that the summing-up did not deal adequately with the facts was coupled with a submission that, in as much we have found the summing-up in respect of counts 1 and 2 was defective, this had implications for count 3. We have not been able to follow the logic of that argument. It seems to us that count 3 stood separately on its own facts. The issue was this: Did the appellant Fenwick intend to use this cannabis solely for his own use or was he producing it in order to supply it and profit from it? That was a very simple issue. We consider that it was fairly placed before the jury by the judge and that he fairly summarised the evidence in relation to it. We see no force in the criticisms made in relation to this count. We dismiss the appeal that is made in relation to it.
MR SPENCER:
My Lord, could I enquire, with respect, whether it is the view of the court that the proceedings therefore were a nullity? I ask because it may be that if that is not the view of the court, I would have to ask this court to consider the ordering of a retrial. It is only a question of where we go from here. I can take my Lord to the relevant passages, if that would help?
THE LORD CHIEF JUSTICE:
Yes, that might be helpful.
MR SPENCER:
Page 117. My Lord, it is paragraph 1-195: "A defect in an indictment may provide a foundation for an appeal to the Court of Appeal or if the indictment is invalid pursuant to the inherent discretion if that court has to quash any conviction resulting from an invalid indictment."
I go on to the next paragraph: "The Court of Appeal has no jurisdiction to amend a defective indictment. It is not every defect which will result in the quashing. No conviction can stand if the underlying proceedings were a nullity, but it is not every uncorrected defect that will have such a consequence."
It would seem from the court's judgment that the effect is that these proceedings were a nullity.
THE LORD CHIEF JUSTICE:
In so far as they related to counts 1 and 2?
MR SPENCER:
Counts 1 and 2, indeed. Can I just take my Lords to page 1089, please, on this court's power to order a retrial? At page 1089 is paragraph 7-112 which recites the power which will be well-known to this court -- section 7 -- but then the commentary reads thus: "Where a conviction was quashed because of the defective nature of the indictment, it was still open to the Court of Appeal to order a retrial".
THE LORD CHIEF JUSTICE:
Are you applying for an order for a retrial?
MR SPENCER:
My position is that the effect of the court's judgment is that these proceedings were a nullity and that there is no need for any direction. But if I am wrong in my understanding of the court's judgment, then I need to invite this court to consider its powers under section 7.
THE LORD CHIEF JUSTICE:
As we have ruled that counts 1 and 2 charge an offence unknown to law, what is the count on which you would seek to retry these defendants?
MR SPENCER:
We would have to think of fresh charges, exactly.
THE LORD CHIEF JUSTICE:
Whatever view one takes of the position, it clearly would be inappropriate to order a retrial.
MR SPENCER:
Thank you, my Lord.
MR BECK:
I am so sorry, my Lord, might I raise another topic?
THE LORD CHIEF JUSTICE:
Yes.
MR BECK:
My Lord knows that Mr Fenwick was granted bail --
THE LORD CHIEF JUSTICE:
Yes.
MR BECK:
-- and he has enjoyed bail. On the counts that still remain on both indictments he faces a total of fifteen months' imprisonment and therefore is not eligible for immediate release. It is likely that he will go into the prison system and that at some point when he is allocated he will be the subject of a home detention curfew.
THE LORD CHIEF JUSTICE:
Yes.
MR BECK:
But that may take some days, if not longer, because as far as the prison system is concerned, he has now left the prison system. I wonder if my Lord would consider using the powers which the court would appear to have under
section 4
to adjust the sentences on counts 3 and 4 -- not that I have ever made, and do not make, any complaint about them -- so that his immediate release is allowed?
THE LORD CHIEF JUSTICE:
How long has he left to serve?
MR BECK:
He would serve until the end of August, were he not released on electronic monitoring.
MRS JUSTICE DOBBS:
But if he were released on electronic monitoring, when is that anticipated?
MR BECK:
He is eligible for it now, my Lady, and I anticipate that that will be done as soon as possible, but "as soon as possible" because he is now, as it were, a stranger to the prison system may take some time.
THE LORD CHIEF JUSTICE:
Could you refer us to our powers?
MR BECK:
My Lord, I think it is at page 1087. It is paragraph 7-108. It is
section 4 of the Criminal Appeal Act 1968
. My Lord, as I read it, it would appear that
section 4(2)
would allow an adjustment of the sentences.
MR JUSTICE UNDERHILL:
Is that not aimed at a case where there is reason to believe that the two sentences are interrelated, so that it would be unjust to allow the sentence on the part on which he has not succeeded or has not appealed --
MR BECK:
My Lord, that is right. I am trying to take advantage of that section.
THE LORD CHIEF JUSTICE:
Yes.
MR BECK:
I cannot do any other than to ask for some clemency on his behalf because I have never appealed, and can see no good grounds for appealing, any of those sentences. It just seems sad that a man who has enjoyed the benefit of bail, has turned up this morning, will now go back into the prison system for a very short time, one suspects, before his release is effected.
(
The court conferred
)
THE LORD CHIEF JUSTICE:
We do not think it would be appropriate to make the order that you seek.
MR BECK:
My Lord, I am grateful.
_________________________________________ | ```yaml
citation: '[2008] EWCA Crim 1534'
date: '2008-06-24'
judges:
- MRS JUSTICE DOBBS
- MR JUSTICE UNDERHILL
``` |
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:
2002/0981/B1
Neutral Citation Number:
[2003] EWCA Crim 3242
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Tuesday, 4 November 2003
B E F O R E:
LORD JUSTICE DYSON
MR JUSTICE MITTING
HIS HONOUR JUDGE FABYAN EVANS QC
(Sitting as a Judge of the CACD)
- - - - - - -
R E G I N A
-v-
R. R.
- - - - - - -
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 E COFIE
appeared on behalf of the APPELLANT
MR P MANN
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE DYSON: On 18th January 2002 in the Crown Court at Nottingham, the appellant was convicted of causing grievous bodily harm with intent to cause grievous bodily harm. He appeals against conviction with the leave of the full court. The judge imposed a Hospital Order under
section 37 of the Mental Health Act 1983
("
the Act
") and a Restriction Order without limit of time under
section 41
of
the Act
.
2.
The appellant has a history of mental health problems dating back to 1995, since when he has been periodically admitted to hospital for treatment on both a voluntary and compulsory basis. He was diagnosed as suffering from bipolar affective disorder which causes mood swings ranging from depression to extreme elation and excitement.
3.
In January 2001 he was living at an address in Islington. He was visited by members of the local authority Crisis Resolution Team. They decided that they needed to gain access in order to make an assessment under
section 2
of
the Act
and to that end they obtained a warrant under
section 135
of
the Act
. In fact the appellant had already left London and gone to Nottingham. He stayed at the Grisham Hotel in Nottingham between 13th and 18th January 2001. The Islington authorities made contact with their counterparts in Nottingham. Dr McCartney and Dr Tarrant, both consultant psychiatrists, were asked by Kim Sullivan, the approved social worker, to make written recommendations to enable the appellant to be admitted to hospital pursuant to
section 2
of
the Act
.
4.
The two doctors, together with the social worker and indeed three police officers went to the hotel at 9.30 pm on 18th January. Arrangements had already been made with the hotel authorities for that to happen.
5.
The appellant had a bedroom, room number 3, which he had occupied for the previous few days. Apparently the television was not functioning properly. The hotel had agreed that the appellant could use another bedroom, room number 9, for the sole purpose of watching the television in that room. The hotel authorities imposed a condition upon his use of that room that he should use it for no other purpose, that he should not use any other facilities in room number 9 and that he should not lock himself in that room. He used the room on a number of occasions during the few days that he was in the hotel.
6.
The team comprising the social worker, the doctors and the police officers arrived at the hotel as we have described. The receptionist, aware of the purpose of the visit, arranged to have the lobby cleared of all guests. Contact was made initially by the mental health team with the appellant. The police officers at that stage were in some other part of the hotel. The appellant came to the door of room number 9. The door was open and a conversation took place between the mental health team and the appellant in the doorway of the room. Dr McCartney gave evidence that he told the appellant who he was and that he had come to make an assessment for the purposes of admitting the appellant to hospital. The appellant told the doctors to go away in no uncertain terms. Dr McCartney said that he became hostile, his speech became rapid, he became difficult to follow, aggressive, agitated and aroused and said that he felt the mental health team had come to torture him and capture him. The doctors decided on this material that they had enough information to enable them to make the necessary written recommendations for the purposes of an admission pursuant to
section 2
and this they duly did. They informed the three police officers whereupon those officers came to the doorway of room number 9. The door was still open and the appellant still in the doorway.
7.
It is significant for the purposes of this appeal that no warrant had been obtained under
section 135
of
the Act
. The three police officers were WPC Higgins, Inspector Holland and PC Kirkland. WPC Higgins did most of the talking at the doorway. She told the appellant that he had been sectioned and that he had to come with them either quietly or if not then force would be used. He made it clear that he would not go voluntarily and was abusive. He said then and has maintained throughout that the police were not entitled to use force to require him to go to the hospital without the sanction of a warrant under
section 135
.
8.
What followed was to some extent a matter of dispute at trial. WPC Higgins said that the appellant's right hand was up above the doorway and she could not see at first what was in it. The officers approached him without truncheons. The appellant then moved slightly forward and produced in his hand a knife with the blade already opened. At this point all three officers drew their truncheons. The appellant then started saying that he was going to kill himself. We interpolate that the appellant has always maintained that he never said any such thing. Inspector Holland then called for support and two other officers, PC Kimbley and PC Matthews, arrived.
9.
By this time the appellant had closed the door. The officers tried to open the door and eventually forced it open. PC Kimbley moved forward and sprayed the appellant in the face with CS gas. The gas apparently had no effect according to WPC Higgins. She was unable to see what happened next or how PC Kimbley came to be injured as he was. Inspector Holland said that the appellant lunged forward when the door was broken down and appeared to strike PC Kimbley on his jacket, pushing his arm forward two or three times from waist height. He appeared to strike the officer once in the area of the heart and a second time on the left side of the abdomen. PC Kirkland said that as the officers approached him the appellant swung his right arm twice into the left lower side of PC Kimbley. He was pushing forward from about waist height with his arm straight in the direction of PC Kimbley. PC Kimbley himself said that the appellant had shut himself in the room and that they knew he had a knife. After the door had been broken down the CS gas had no effect. The appellant came out of the room and there was a struggle in the corridor. The officer tried to grab the knife from the appellant with his left hand. As he did so the appellant struck him twice to the left side above the waist. This was by means of what he described as a jabbing movement. PC Matthews said that he saw the appellant lunge forward with a knife and catch PC Kimbley on the side about waist height. He did not see the knife but he did see the officer reach out and grab the appellant's hand.
10.
The account given by the appellant at the trial was as follows. He said that he wanted to see the warrant before he would agree to go to hospital. He believed that the police had no right to break in to what he regarded as his room without a warrant. He agreed that WPC Higgins said that he would have to go voluntarily or the police would come in and get him. He refused to go. He said that the three officers then advanced towards him. He did not have a knife at that stage. He told the officers that so far as he was concerned they needed a court order and he shut the door. They then started to kick the door down and at this point he put his hand in his pocket and drew out the knife that he used to cut bread or an apple and sometimes when he was working. He opened the blade to discourage the police and place an extra barrier between himself and them. He doubted whether they were police officers at all. When the door was broken open he was immediately sprayed with gas. The officer then started to grab him. He said: "I started moving my arms about without seeing them, pushing them aside to try to get free of them." He demonstrated his hands in front and showed his arms rotating. What he also said, and we quote from the page 44C of the summing-up:
"Inspector Holland came behind him and put the baton across his chest and grabbed his arms and Woman Police Constable Higgins started punching his stomach which could have caused him to haemorrhage, he said, and the thought that he could have been killed or seriously injured. He did not say he was going to kill himself, however, or even anything similar to that. He said he brandished the knife 'because of these people were sensible, they wouldn't come in after me.' He did not want to hurt anyone. Above all -- and this is central to the case -- he said he did not intend to stab anyone or even hurt anyone with the knife."
In cross-examination he agreed that the knife had caused a cut to P.C. Kimbley's arm. He also agreed that he did not think that he had a right to stab anyone. He denied that he had thrust or pushed the knife at the officer.
11.
The sole issue that arises on this appeal concerns the directions given by the judge to the jury in relation to the effect of the fact that the officers had gone to the hotel on 18th January without a warrant issued under
section 135
of
the Act
. It is necessary therefore to refer to the relevant statutory provisions.
12.
Section 2
of
the Act
provides that a person may be admitted to a hospital in pursuance of an application for assessment made in accordance with subsections (2) and (3).
Section 6
provides that an application for the admission of a patient to a hospital under
Part 2
of
the Act
shall be sufficient authority for the applicant or any person authorised by the applicant to take the patient and convey him to the hospital within the period specified by subsection (1).
13.
Section 135
provides:
"(1) If it appears to a justice of the peace, on information on oath laid by an approved social worker, that there is reasonable cause to suspect that a person believed to be suffering from mental disorder-
(a) has been, or is being, ill-treated, neglected or kept otherwise than under proper control, in any place within the jurisdiction of the justice, or
(b) being unable to care for himself, is living alone in any such place,
the justice may issue a warrant authorising any constable ... to enter, if need be by force, any premises specified in the warrant in which that person is believed to be, and, of thought fit, to remove him to a place of safety with a view to the making of an application in respect of him under Part II of this Act, or of other arrangements for his treatment or care.
(2) If it appears to a justice of the peace, on information on oath laid by any constable or other person who is authorised by or under this Act ... to take a patient to any place, or to take into custody or retake a patient who is liable under this Act...
(a) that there is reasonable cause to believe that the patient is to be found on premises within the jurisdiction of the justice; and
(b) that admission to the premises has been refused or that a refusal of such admission is apprehended,
the justice may issue a warrant authorising any constable ... to enter the premises, if need be by force, and remove the patient."
Section 137
provides:
"(1) Any person required or authorised by or by virtue of this Act to be conveyed to any place or to be kept in custody or detained in a place of safety or at any place to which he is taken under section 42(6) above shall, while being so conveyed, detained or kept, as the case may be, be deemed to be in legal custody.
(2) A constable or any other person required or authorised by or by virtue of this Act to take any person into custody, or to convey or detain any person shall, for the purposes of taking him into custody or conveying or detaining him, have all the powers, authorities, protection and privileges which a constable has within the area for which he acts as constable."
14.
It is now necessary to consider certain passages in the summing-up. At page 12E the judge told the jury that if they accepted the evidence of the social worker and the two doctors as to what happened when they visited the hotel on 18th January:
"... the police were then entitled to move in to detain the defendant and, indeed, to use reasonable force themselves in all the circumstances in order to do that, to detain him. They did not, as the defendant thought, need to go back to the court to obtain a court order."
He added at page 12H:
"What they were not allowed to do, of course, is to use gratuitous, wilful violence beyond what was necessary in all the circumstances as it appeared to them, because that would change a lawful, legitimate detention into an unlawful one."
15.
There came a point when the judge adjourned his summing-up. At 10.30 the following morning, counsel then appearing for the appellant, not Mr Cofie who has appeared today, submitted to the judge that the jury should be told that the police had not been entitled to enter the premises on 18th January without a warrant issued pursuant to
section 135
. It is most unfortunate that this point occurred to counsel only during the judge's summing-up; but the point having been raised, the judge had to deal with it. After prolonged discussion with counsel, what he said to the jury was this, at 41C:
"Now there is no need for you to get involved in legal technicalities in relation to police powers. The policeman are, in fact, entitled to enter the room of the defendant and detain him in order to protect the defendant, as they had put it, from the point of view of the evidence that they had in front of them -- they said that he was going to kill himself -- to protect him from serious injury to himself and, indeed, in respect of public disorder that was being or had been created or might be created. The defendant claimed that the police could not enter his room without a warrant. That was what he asserted many times, as you know. Even if that were the case -- which is open to debate, it may even be the case -- the amount of force that could be used must still be reasonable only."
On behalf of the appellant, Mr Cofie submits that the judge misdirected the jury by stating that, if they accepted the evidence of the social worker and the doctors, then the police officers were entitled to enter the room and use reasonable force to detain the appellant. Mr Cofie submits that the officers required a
section 135
warrant before they could lawfully detain and take the appellant to hospital against his will. The judge should therefore have directed the jury to consider whether the degree of force used by the appellant to avoid an unlawful detention was reasonable in all the circumstances, including the circumstance that the police were acting unlawfully.
16.
The full court gave leave to appeal because they thought that the grounds of appeal raised an issue as to the relationship between
sections 2
,
6
,
135
and
137
of
the Act
. It seems to us that the starting point is that it was never disputed that a valid application for admission of the appellant to hospital had been made by the approved social worker. She had made an application founded on the written recommendations of two registered medical practitioners as required by
section 2
. This gave the applicant or any person authorised by her sufficient authority to take the appellant and convey him to hospital -- see
section 6(1)
. The police officers were undoubtedly authorised by the applicant's social worker to take and convey the appellant to hospital. It was for that very reason that they were contacted by her in the first place.
17.
The effect of
section 137(2)
was that the police officers had all the powers, authorities, protection and privileges which a constable has within the area for which they act as police officers. Those powers did not, however, include the power to use force to enter premises to remove a person simply because he was believed to be suffering from a mental disorder or was a person liable to be taken into custody under
the Act
.
18.
This brings us to
section 135
. In our judgment a duly completed application for an assessment under
the Act
does not without more provide authority for the applicant, or the police if authorised by the applicant, to effect a forced entry into the premises of the person sought to be conveyed to hospital. Such an act would, on the face of it, be a trespass and unlawful. A warrant issued under
section 135
is the means by which a forced entry, which would otherwise be a trespass, becomes a lawful act where the aim of the forced entry is to remove a person to hospital for one of the purposes specified in
section 135
. The position is otherwise where the aim of the forced entry is different, for example where the purpose is one of those specified in
section 17(1) of the Police and Criminal Evidence Act 1984
.
19.
On the facts of this case, therefore, if by entering the premises where the appellant was on 18th January 2001, the police would have been trespassers as against the appellant unless a warrant was first obtained under
section 135
then their forced entry, if that is what it was, would have been unlawful since no such warrant had been obtained. But in our judgment there was no factual basis for contending that the police entered as trespassers on 18th January, still less as trespassers as against the appellant. It is not suggested that the police were not entitled to enter the hotel itself -- it is clear from the evidence to which we have referred that the police had the authority of the hotel to enter for the purpose for which they did effect entry. The only act of forcible entry occurred when the police broke down the door to room number 9 in the circumstances that we have described. But the appellant had no right of exclusive occupation of that room. He had no right to exclude others from the room. His right to use the room was pursuant to a licence granted to him by the hotel for one purpose and one purpose only, and upon the conditions that we have mentioned. In those circumstances, he had no right to deny anybody access to that room, still less the police who were on the hotel premises with the permission of the hotel. The appellant could not have brought a civil claim in trespass against the police authorities for entering room number 9. They accordingly were entitled to be in that room on 18th January 2001 without a warrant.
20.
It is not necessary for the purposes of this appeal to decide whether the police actually entered room number 9 for the purpose of forcibly detaining the appellant or whether the forcible detention took place in the corridor. The preponderance of the evidence suggests that in fact the forcible detention took place in the corridor. But as we have said, the police would have been acting lawfully, whether the detention took place inside the room or outside in the corridor.
21.
Accordingly, the police were entitled by virtue of
section 6
to take the appellant from the hotel and convey him to a hospital and to use reasonable force in doing so. The judge was therefore right to direct the jury, as he did before the intervention of counsel to which we have referred, that the police were entitled to move in to detain the appellant and to use reasonable force in order to do so. There being only one ground of appeal, this appeal against conviction must be dismissed.
22.
The appellant's application for leave to appeal against sentence has been referred to this Court. As we have already said, the judge imposed a Hospital Order and a Restriction Order under
section 41
without limit of time. The appellant is now 54 years of age. He has no previous convictions or cautions.
23.
There were before the judge psychiatric reports which indicated that the appellant suffers from a serious mental disorder. The report from Dr De Taranto said that she had examined the appellant and he had presented as hypermanic and dismissive. He continually shouted and was abusive. He had persecutory ideas of a conspiracy between the police, the courts and the medical profession and insisted that he did not require medication or psychiatric care. She concluded that the appellant suffered from bipolar affective disorder but had no insight into his condition or the need for psychiatric treatment. He suffered from a mental illness which, while treatable, was of a nature and degree that meant that his detention in hospital was appropriate for his own health and for the protection of others. The judge took into account not only that report but also psychiatric evidence from Dr Farnham and Dr Benning, together with the oral evidence of Dr Benning that the appellant was suffering from bipolar affective disorder.
24.
The judge was fully appreciative of the seriousness of attaching a Restriction Order without limit of time, particularly given the fact that there was no previous history of convictions or violence, but that his lack of insight into his condition, his failure to accept that he was suffering from a mental condition at all and his poor history of failing to take medication were the important matters to take into account and the main areas of concern when considering the question of danger to the public and the need to protect the public. The judge said that the circumstances of the incident were very serious and terrifying. The judge accepted that the appellant had been uncertain of the legal position at the time, but given the history of medical problems, the nature of the offence, his reactions during the trial and the risk of further offences if the same situation arose again, there was a real danger of injury or serious harm to the public. The judge therefore considered that it was necessary for detention without limit of time under a Restriction Order pursuant to
section 41
.
25.
The grounds of appeal against that order are that such an order was not necessary and indeed rendered the sentence manifestly excessive because the appellant had no previous convictions; on the evidence he did not represent a threat to the public at large; he was unlikely to commit further offences if set at large and the responsibility for the serious incident that occurred on 18th January rested in large part with the authorities for failing to deal with the situation professionally and safely.
26.
We have no hesitation in concluding that the sentencing judge was fully justified in making the order that was made in this case. The judge took into account the fact that the appellant had reached the age of 54 without committing any offences, still less any offences of a violent nature. But the mental instability disclosed by the evidence and by what happened on 18th January meant that the judge was fully justified in concluding that a Restriction Order was necessary. We are unimpressed by the submission that the authorities present at the scene on 18th January were in some way responsible for what occurred on that date. For the reasons we have indicated, we would refuse this application for permission to appeal against sentence. | ```yaml
citation: '[2003] EWCA Crim 3242'
date: '2003-11-04'
judges:
- LORD JUSTICE DYSON
- MR JUSTICE MITTING
- HIS HONOUR JUDGE FABYAN EVANS 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:
200702253 A6
Neutral Citation Number:
[2007] EWCA Crim 1860
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Thursday, 12th July 2007
B e f o r e
:
LORD JUSTICE GAGE
MR JUSTICE DAVIS
HIS HONOUR JUDGE CHAPMAN
(Sitting as a Judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
ROBERT DAVID HATTON
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
MR J DUFFY
appeared on behalf of the
Appellant
,
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE DAVIS: The appellant is a man now aged 54. On 1st March 2004 at the Crown Court at Mold the appellant pleaded guilty to a number of offences and, on 10th April 2007, he was sentenced by HHJ Merfyn Hughes QC as follows: on counts 1 to 8 and 10, applying a false trademark, counts 9, 11 and 12, possessing an article for making copies of a trademark and counts 13 to 16, distributing goods bearing a false trademark he received concurrent sentences of 18 months' imprisonment; an additional order for forfeiture was made. Against that sentence he now appeals by leave of the single judge.
2.
The background facts are these. On 9 March 2006 a warrant issued under the Trademarks Act was executed at the appellant's home in Wrexham. Police officers were accompanied by Trading Standards officers and a representative of a trade association for the software publishing industry.
3.
The appellant took them to an upstairs room and told them, "This is where I do all my copying." The room had shelving all round the walls. Officers seized computer equipment, some seven DVD rewriters, at least three of which were in working order, printers and empty plastic covers for DVDs. There were approximately 20,000 discs. About 500 of those were blank discs; 11,000 individual music albums were found on computer hard drives.
4.
The retail value of the music seized, if it had been genuine, was £530,000. In addition, over 5,000 DVDs were seized, which would have had an average price of £15 to £16 each, and hundreds of computer games that retailed for much more than that.
5.
The computers contained the necessary hardware and software to duplicate and compile video data, CDs and DVDs. The hard drives contained computer games and the necessary software to decrypt that material. There were also music files and movies. The computer also contained thousands of images which were designed and intended to be used as covers for discs and disc cases.
6.
E-mails recovered listed films and computer games. They were ordered by various people. The fact that people ordered more than one copy of individual titles suggested that those people might themselves have been dealing to a certain extent on a commercial level.
7.
The Crown's case was that the appellant was to an extent wholesaling to regular retail customers.
8.
When interviewed, the appellant said that he sold discs for about £2 each, but the price of the CDs had been higher: it would have been about £5 in 2004. He said that he had no idea how much money he had made from the enterprise. He said that the majority of the master discs had been bought from a man in Manchester whose name he said he did not know. He bought the blank discs, he said, from a computer fair in Manchester at a cost of £15 per hundred.
9.
It would appear that the unlawful activities of the appellant lasted for around four or five years between 2001 and 2006. It was ultimately accepted that he personally profited from his activities in a sum of around £10,000.
10.
There was a basis of plea which was in these terms:
"1. In 2001 I began to purchase and collect compact discs, MP3 format discs, videos and digital versatile discs. This became a hobby and I quickly began to obtain a large amount of the said items.
2. I purchased the majority of these items from a computer fair in Manchester.
3. Many of the items were purchased for my own personal use. However I accept that between 2002 and 2006, I copied and supplied counterfeit MP3 discs, MP3 format discs and Digital versatile discs to friends and family.
4. On average I sold the said items for between £1 and £3 each and I accept that I made a profit from selling counterfeit discs.
5. I have never supplied discs directly to members of the public."
As for this fifth point, it appears that at one stage this was going to be an issue between the appellant and the prosecution and a
Newton
hearing had been mooted, but in the end this was not pursued.
11.
Before the judge there was a pre-sentence report which, in effect, reported favourably on the appellant and emphasised that he had showed real remorse, and he was assessed as of low risk of reoffending. It is also the case that the appellant has no previous convictions. In addition, there were a number of character and personal references reporting very favourably on the appellant.
12.
In the course of his clear and well structured sentencing remarks, the judge, amongst other things, said this:
"The retail value of goods found in your possession, namely in excess of one half a million pounds is not the only measure of your involvement but it is not irrelevant, if only to obtain a very broad indication of the level of your dishonest trading and that property does not of course include those discs which had already been sold on by you. It is recognised however that the level of sales which you made is very much less, although still substantial, estimated to be in the region of £10,000."
The judge then went on to emphasise the huge amount of materials and huge library which was found at the property, and noted that the equipment which was available for the appellant was a further measure of the sophistication required to copy the items and then to manufacture them for distribution. The judge further noted that the period between which he had been trading was one of at least four years.
13.
The judge, having referred to a decision of the Court of Appeal in
R v Woolridge
, indicated that it was appropriate that the sentence to be imposed should contain some element of deterrence. In the circumstances he imposed the total sentence of 18 months' imprisonment to which we have referred.
14.
We should perhaps add that, since being sent to prison a prison report has been provided to the court which reports in very favourable terms on the conduct of the appellant whilst in prison.
15.
Mr Duffy, in the course of his excellent submissions on behalf of the appellant, drew attention to the early plea and to the previous good character of the appellant. He further said that the profits which the appellant made were not so very great: although he necessarily had to admit that the illegal activities extended over a very significant period of time. In addition he emphasised the basis of plea and in particular that the dealing was with family or friends - that is to say, people who would know the counterfeit nature of the goods they were buying. In addition he drew attention to the age and comparative poor health of the appellant.
16.
Mr Duffy realistically accepts that the custody threshold was passed in this case; but he says that in current times prisons are, as is well known, overcrowded, and he emphasises that the sentence of imprisonment is by statute required to be the lowest term imprisonment that may be imposed, commensurate with the seriousness of the offence. In that regard Mr Duffy also has drawn attention to the decision of a constitution of this court in
R v Stark
[2007] EWCA Crim 252
. Mr Duffy in effect says that this was not a case involving any violence or sexual conduct, that the damage to the public here was of a commercial nature and, as he would say, of a commercial nature only, and in effect what it comes to, he says (although not put exactly in these words) is that there are more deserving candidates than this appellant for receiving a sentence of this order: and mercy can properly be shown.
17.
As far as the case of
Woolridge
[2005] EWCA Crim at 1086;
[2006] 1 Cr App R (S) 13
is concerned, which was referred to by the judge, that, in our judgment, is highly material to the approach which was adopted by the judge in this case. In that case a sentence of nine months' imprisonment was upheld in respect of illegal trademark activities which, on any view, were significantly less serious than in the present case, involving lesser sums of money and a lesser period of illegal activity. But of course it can be said that the facts nevertheless were special to that particular case.
18.
However, these general points were made by Silber J (giving the judgment of the court) in paragraph 13 of his judgment, where this was said:
"Our starting point is to bear in mind that trademark offences of the kind committed by this appellant entail three serious matters, of which the first is that the appellant was dishonestly exploiting and taking advantage of the reputation of the owners of the trademarks for his financial benefit. The second consequences is the purchasers of the counterfeit goods were deceived into buying goods which they would not otherwise have bought or, at least, not bought at the price which was paid for them. As I have explained, was a finding by the judge that only an expert would have realised that these goods were counterfeit goods. The third consequence of the appellant's conduct is that the appellant was receiving money from the purchasers which he would not have received if the counterfeit trademarks had not been put on the goods."
Pausing there, Mr Duffy is entitled to say that the second point is not so material in the present case, as here most of the purchasers, if not all of them, from this appellant were presumably aware of the counterfeit nature of the goods being provided.
19.
However, Mr Justice Silber also went on to say this, at paragraph 14:
"It seems clear to us that the sentence imposed for trademark offences has to contain some element of deterrence, especially as trademark offences are often difficult, time-consuming and expensive to detect. It is after all the duty of the courts to protect the interests of the owners of the trademarks, and this means frequently sentencing offenders for trademark offences to prison."
20.
Other cases which perhaps are material in it context include the decision of a constitution of this court in
R v
Gross
[1996] 2 Cr App R (S) 189
and the more recent decision of a constitution of this court in
R v Kirkwood
[2006] 2 Cr App R (S) 79
. That last case again was a case on its own facts. However, it would appear that the activities there had at least some similarities to the present, although arguably in fact were less serious. Relatively small profits were made in that case, the sales started and were made directly to family and friends and the period of the illegal activity was around three years. It is to be noted that the court in that case imposed a sentence of 21 months for that particular offending.
21.
If one concentrates simply on the personal circumstances and personal mitigation available to this appellant, there is much indeed to be said for Mr Duffy's submissions. But this court, as any sentencing court, also has to have regard to the circumstances of the offences themselves. It is to be borne in mind that counterfeit and illegal activities of this kind do have a damaging impact on the public. Further, commercial activities of manufacturing and retailing companies specialising in this field and their profits and ultimately the jobs of their employees are affected by what people such as the appellant are doing. It seems necessary in such circumstances for a court, at least in the normal way, to consider including a deterrent element in sentencing for offences of this kind. In the present case, this offending was of a serious and sustained nature; and whilst we acknowledge the personal situation of this particular appellant, and whilst it might perhaps be said that this sentence was a relatively severe one, we are not persuaded that the sentence is manifestly excessive. Accordingly this appeal is dismissed. | ```yaml
citation: '[2007] EWCA Crim 1860'
date: '2007-07-12'
judges:
- LORD JUSTICE GAGE
- MR JUSTICE DAVIS
- HIS HONOUR JUDGE CHAPMAN
``` |
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 669
Case No:
202101855 B5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Central Criminal Court
His Honour Judge Hillen
20207146
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
14 June 2023
Before :
LORD JUSTICE WILLIAM DAVIS
MRS JUSTICE MCGOWAN
and
HIS HONOUR JUDGE FLEWITT KC
- - - - - - - - - - - - - - - - - - - - -
Between :
LIELAY AREGUY
Appellant
- and -
REX
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Jeremy Dein KC and Ms Kerrie Rowan (
instructed by
Reeds Solicitors) for the Appellant
Ms Heidi Stonecliffe
KC
(instructed by CPS) for the Respondent
Hearing dates: 17 and 18 May 2023
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
This judgment was handed down remotely at 10.30am on 14 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
.............................
Lord Justice William Davis:
Introduction
1.
In 2019 Kemar Bassaragh lived in a flat at Kneller Court, Academy Gardens, Northolt. The flat was in a cul-de-sac close to the A40 Western Avenue. On 6 March 2019 shortly after 11.00 p.m. there was a knock at the door of the flat. Bassaragh went to answer the door. As he came into the hallway he was shot by someone putting a shotgun through the letter box and firing it at him. Fortunately he escaped with only minor injuries.
2.
At around 11.30 p.m. the same evening two men – Rached Itani and Leon De’Silva – were arrested in Wandsworth Bridge Road in London. They were in a stolen Range Rover. Both men were wearing latex gloves. Itani was wearing camouflage body armour. A Range Rover had been seen by witnesses driving away from the area of Bassaragh’s flat shortly after the shooting. CCTV footage confirmed this evidence. There were knives in the Range Rover but no shotgun. However, there was shotgun residue on the latex gloves being worn by Itani. There was also a Nokia unregistered mobile telephone in the car.
3.
The Range Rover had been provided by a man named Yasser Ibrahim. Ibrahim also obtained the shotgun. His father had a significant number of shotguns at his home. The attack on Bassaragh was planned and co-ordinated by two brothers, Omar Mechita and Abraham Espinosa. These men were drug dealers. They had a dispute with Bassaragh in relation to money which they said he owed them for drugs. This was the motive for the shooting.
4.
At around 9.00 p.m. on 6 March 2019 Mechita had taken Itani and De’Silva on a reconnaissance trip to Northolt. They set off from the Earls’ Court area of London, joined the A40 near Shepherd’s Bush and drove to Northolt. They then returned to Earl’s Court where Itani and De’Silva collected the Range Rover. The car used for the reconnaissance trip was a Vauxhall Astra owned by Lielay Areguy. Areguy lived in Battersea. On the evening of 6 March he drove his Astra from his home to Earl’s Court from where he collected Mechita, Itani and De’Silva before driving to Northolt. At 9.18 p.m. the Astra was caught on an ANPR camera on Church Road, Northolt. Church Road is a main road through the southern part of Northolt. Academy Gardens is reached via a side turning off Church Road a short distance beyond the ANPR camera. It was a matter of minutes later that the Astra began its return journey to Earl’s Court.
5.
During its journey to and from Northolt, Mechita, a passenger in the Astra, made telephone calls to and received calls from Espinosa. There was a flurry of calls when the Astra was in Northolt. Mechita was using the Nokia mobile phone later found in the Range Rover.
6.
In the days following 6 March 2019 there was telephone contact between Areguy and Mechita. Mechita was also in contact with Espinosa and Ibrahim. On 12 March 2019 Espinosa flew out of Heathrow to Mexico. Two days later Areguy collected a bag that Espinosa had deposited at a left luggage facility at Heathrow.
The consequent proceedings
7.
Ibrahim was arrested on 12 April 2019. Areguy was arrested on 9 July 2019. Espinosa remained out of the jurisdiction. So far as is known that remains the position. Mechita was arrested on 10 July 2019. He was bailed by the police to return on 3 October 2019. He failed to do so. Mechita was thought to have fled the jurisdiction. Whether that was right or not, he was not re-arrested until 3 October 2022.
8.
The defendants were sent to the Crown Court at different times. Itani and De’Silva were sent for trial on 9 March 2019. The provisional trial date in their cases was 23 September 2019. That date was vacated due to the sending for trial of Ibrahim on 20 August 2019. Areguy was not sent for trial until 20 May 2020. However, no trial date in relation to the other three had been set, the onset of the pandemic having created overwhelming listing problems. The trial of all four men on a joint indictment originally had been fixed to commence on 4 January 2021. The trial was postponed though the case was listed in court on 4 and 5 January 2021. The trial actually began on 1 March 2021.
9.
All four were charged with conspiracy to murder Bassaragh. De’Silva, Itani and Ibrahim were also charged with possession of a firearm with intent to endanger life. The jury convicted each of the defendants of the count or counts which with they were charged. There were other counts on the indictment to which defendants other than Areguy pleaded guilty. We are not concerned with those offences. The sentence in relation to De’Silva, Itani and Ibrahim was 27 years’ imprisonment in each case. Areguy was sentenced to 18 years’ imprisonment in respect of the count of conspiracy to murder. Mechita appeared at the Central Criminal Court on 17 October 2022. He pleaded guilty to conspiracy to murder. On 13 December 2022 he was sentenced to 20 years’ imprisonment. His sentence was reduced due to his early plea of guilty.
The applications before the court
10.
Areguy now applies for leave to appeal against his conviction. He was represented at trial by counsel: Abigail Bache and Max Mills. Ms Bache settled grounds of appeal seeking to rely on fresh evidence. Since the application involved fresh evidence, the single judge referred the application for leave to the full Court for consideration. Following the referral of the application to the full Court, new counsel were instructed by Areguy, namely Jeremy Dein KC and Kerrie Ann Rowan. Mr Dein and Ms Rowan apply to rely on a new ground of appeal not considered by the single judge, namely that the representation of Areguy at trial was so ineffective that he did not have a fair trial.
The evidential case at trial
11.
The evidence relied on by the prosecution to show participation in the conspiracy was circumstantial. Telephone evidence played a significant part in the case. There was evidence of contact between the defendants and Epsinosa and Mechita, in particular at critical times on 6 March 2019. Cell site evidence demonstrated the movement (or lack of movement) of telephones attributed to different defendants. ANPR sightings of vehicles and CCTV evidence also played a role. The scientific evidence relating to shotgun residue was of importance in relation to Itani.
12.
The circumstantial evidence was sufficiently compelling to mean that, at the trial, there was only one area where the defendants disputed the narrative we have set out above. It was accepted that around 9.00 p.m. Areguy drove his Astra from the Earl’s Court area to Northolt. De’Silva agreed that he was a passenger on that trip. Both men accepted that Mechita was in the car with them. It was agreed that the Astra then returned to the Earl’s Court area. De’Silva accepted that later on the evening of 6 March he had driven the Range Rover from Earl’s Court to Northolt and had stopped briefly at or near Academy Gardens before driving back to the point at which he was arrested.
13.
The dispute in relation to the narrative concerned the identity of those in the Astra and the Range Rover. Itani’s case was that he had not been to Northolt at any point whether in the Astra or in the Range Rover. Rather, Ibrahim said that he was the other person in the vehicle on each occasion. Itani’s evidence was that he had been picked up in the Range Rover from an address in Holland Park from where he had been driven to Wandsworth Bridge Road. That was the first time that he had been in the Range Rover. His case was that he had not been to Northolt at all on the evening of 6 March. He was wearing body armour because he feared being stabbed. He found the latex gloves he was wearing when he got into the Range Rover and had put them on at that point. He suggested that the shotgun residue had been deposited before he put on the gloves. Ibrahim gave evidence that he was the one who had gone to Bassaragh’s flat and discharged the shotgun through the letter box. He said that his intention was to cause injury to Bassaragh, not to kill him. Ibrahim’s evidence was at odds with the location and use of his telephones. Telephones attributed to him were in Earl’s Court and Fulham throughout the evening of 6 March. Moreover, when Mechita was in the Astra on the first trip to Northolt, there was call traffic between Mechita and Ibrahim.
14.
The resolution of the issue concerning the identity of the fourth person in the Astra and of the passenger in the Range Rover was of no consequence so far as Areguy was concerned. His case was that he had been called by Mechita during the afternoon of 6 March. There was no record of such a call in the telephone data retrieved in relation to the telephones of Areguy and Mechita. There was a possibility that the call had been via WhatsApp. In any event, Areguy said that Mechita had suggested that they should go out for a meal later that day with a friend of his. Areguy had gone to the Earl’s Court area to pick up Mechita. They then had picked up two other men. Areguy did not know who these other men were. Mechita had directed Areguy to Northolt. When they got there, Mechita had tried to call his friend without success. Therefore, Areguy drove the Astra back to Earl’s Court. The two men he did not know were dropped off after which he and Mechita went and got something to eat from a burger restaurant in High Street Kensington.
15.
Areguy did not give evidence in the trial. However, he gave a full account of the events of 6 March when interviewed by the police. That account was before the jury. He could not dispute the proposition that the trip to Northolt in the Astra was a reconnaissance for the later attack on Bessaragh. His case was that he did not know of the true purpose of the journey.
16.
In his summing up the judge succinctly identified the issue for the jury in relation to Areguy when he said:
“The real issue in Areguy's case, you may conclude is, whether or not that is his car in Academy Gardens, did he know what the reconnaissance, which undoubtedly you may think occurred and everybody seems to agree that it was a reconnaissance, wherever it went – did he know what it was for?”
We shall explain the reference to Areguy’s car being in Academy Gardens shortly. What was clear on the agreed evidence was that Areguy had driven people to the general area of the flat which later was to be the scene of the shooting. One of those in the car, Mechita, was an organiser of the proposed attack. He was speaking on the telephone to the other organiser when sitting in the front passenger seat next to Areguy. The jury had to consider whether the driver of the car on the reconnaissance might have been unaware of what was going on.
The course of the trial
17.
The served evidence in the case was substantial. By the conclusion of the trial 648 pages of statements had been served together with 7,345 pages of exhibits. Much of the evidence was formal in nature i.e. police witnesses producing exhibits without comment on material such as quantities of raw telephone data. The police gathered a significant amount of CCTV footage. Initially this was served as unused material. When Areguy was interviewed in July 2019 there was a brief exchange about CCTV.
DC O. “We’ve got CCTV of Academy Gardens.”
AREGUY “A what sorry!”
DC O. “Academy Gardens which is the road that the victim lives in. His block of flats, Kneller Court, is in Academy Gardens alright.”
AREGUY “Okay.”
DC O. “We’ve got CCTV in there. Now what would you say if there appears to be an Astra doing a drive round through that estate?”
AREGUY “It’s wrong”
Nothing further was said on the topic. No evidence to support the interviewing officer’s assertion was served at the point at which Areguy was sent for trial and joined with the other defendants.
18.
The very detailed opening note provided by the prosecution in anticipation of the trial on 3 January 2021 did not refer to any CCTV showing an Astra car in the estate where Bassaragh lived. It was asserted that the Astra had driven “out to Bassaragh’s address….on a recce”. It was not said that this was supported by CCTV evidence. This was in contrast to what was said in relation to the later visit to Bassaragh’s address when the shooting took place. The opening stated in terms that the Range Rover could be seen on CCTV outside the address. On 23 December 2020 the evidence of a DC Fortune had been uploaded to the DCS. DC Fortune said that he had created videos from raw footage gathered during the investigation. One of the videos he described as “Compilation of Ealing Borough CCTV at the time of the recce”. One part of the footage showed Academy Gardens for a period of around 35 minutes from 9 p.m. on 6 March 2019. DC Fortune said nothing more about the material. He did not suggest that particular vehicles could be identified on the footage.
19.
The prosecution served a further opening note on 25 February 2021 for the purposes of the trial due to commence on 1 March 2021. The further opening note was identical to the previous opening note insofar as the Astra was concerned. At some point the prosecution served video footage from CCTV cameras covering Academy Gardens at about 9.19 p.m. on 6 March 2019 with a particular vehicle picked out with an arrow. It is not clear to us whether this was part of the compilation footage served with the evidence of DC Fortune or whether it came at a later stage. For our purposes it does not matter. DC Fortune gave no evidence as to the identity of the vehicle. It was said to be “a vehicle of interest”.
20.
On 9 March 2021 Ms Bache objected to the placing of an arrow over the vehicle in the footage to be played to the jury. At the outset her objection was based on the fact that the arrow gave the “vehicle of interest” an undue prominence. In the course of argument before the judge prosecution counsel said that it was to be asserted that “it is Areguy’s vehicle because it ties in with the ANPR camera”. In response Ms Bache said this:
“….we were told this morning that the Crown would not specifically say that this was Mr Areguy’s car – only that this was a car of interest. Presumably and it’s been made clearer now, they are saying that it is Mr Areguy’s car. We have no statement from any officer explaining why they say it is his car.”
Prosecution counsel did not disagree with the way in which Ms Bache had explained the position. Rather, she said that DC Orr (who was the officer in the case) would make a further statement. From that exchange we infer that Ms Bache hitherto had been unaware that the prosecution case was that Areguy’s Astra could be seen on CCTV footage entering Academy Gardens.
21.
DC Orr’s statement was uploaded to the DCS on the morning of 10 March 2019. The relevant parts read as follows:
“Having reviewed the footage, you can see the car go past the camera at 21:20:13 and you get to see some of the body shape of the car, albeit briefly. This appeared to me upon viewing to be that of a Vauxhall Astra, with the lights and body shape being more consistent with the model of Astra Mr Areguy had (he had a saloon model rather than the more common hatchback model). This was also shortly after the ANPR activation on Church Road…. I have then also viewed camera 431…. and this covers vehicles entering onto the White Hart Roundabout travelling southbound from Church Road, and so would capture any vehicles coming out of Parkfield Drive, who have a mandatory left turn towards the roundabout. At 21.23:33 there is a vehicle that can be seen entering the roundabout and which appears to come off at some point….
This vehicle appeared to me to be a Vauxhall Astra of the same shape seen on camera earlier and that of Mr Areguy’s Astra. I have paused the footage at this time (21:23:33) and think that this vehicle is a Vauxhall Astra saloon of the shape and style that Mr Areguy possessed….
this vehicle was then marked on a compilation video….by use of white arrow to denote it as the vehicle that Police thought was the Vauxhall Astra index LM57AEX on the evening of the 6th March 2019. I would also say that from what I can see of the car indicated, that the colour would also be similar to that of the Astra index LM57AEX, which is silver.
I also think the sighting of this vehicle fits in with the times we know the vehicle was in the area, that is using call data and the sole ANPR activation in Church Road.
However I must state that this is my view from what I have viewed of the CCTV footage taking into account it’s quality and lack of colour.”
DC Orr gave evidence on the same day in the terms of his witness statement.
22.
Ms Bache cross-examined DC Orr in relation to four topics. First, she pressed him on his assertion that the vehicle was a saloon rather than a hatchback. He confirmed that it was a saloon “to me”. The significance of this was that Areguy’s Astra was a hatchback model rather than a saloon. Second, she showed him footage of the vehicle when the front passenger window was in view. She put to DC Orr that there was no front seat passenger in the car. His response was to say “I couldn’t say”. Third, she established that DC Orr’s evidence about the car on the roundabout was that “it appears to me to be a similar vehicle”. Finally, DC Orr agreed that Areguy’s telephone appeared to have used a cell site 1.9 miles from the roundabout 33 seconds after the sighting of the “similar vehicle”. He further agreed that to travel 1.9 miles in 33 seconds on urban roads was “unfeasible”.
23.
Whilst DC Orr may not have conceded that the CCTV footage showed that there was no front seat passenger in the car said to have been Areguy’s Astra, the prosecution clearly took a contrary view. Further evidence was served from DC Orr in which he suggested that the occupants of the Astra could have alighted in Academy Gardens and gone on foot whilst the Astra drove out of Academy Gardens and picked up those who had left the Astra at a point on Ruislip Road. He and a colleague videoed themselves walking the suggested route. DC Orr also made a statement in which he identified various vehicles which had activated the ANPR camera at about the same time as Areguy’s Astra. He then had analysed the vehicles shown on CCTV at a roundabout further down the road. He said that the Astra did not appear at the roundabout at the time one would have expected had it travelled straight on as the other vehicles did.
24.
On 29 March 2021 Ms Bache objected to the playing of the video of the officers walking a route out of Academy Gardens on the basis that the proposition that anyone had got out of the Astra and later met up with that car on foot was wholly speculative. The judge did not agree with the submission and permitted the jury to see the video. Following that ruling counsel for De’Silva applied for an adjournment of the trial to allow the instruction of an video analysis expert to consider the CCTV footage from Academy Gardens and to report on whether occupants could be seen in the Astra. Though it was not made explicit in the course of the application, it was apparent that the likely consequence, were the application to be successful, would be a discharge of the jury with the trial re-starting at some future date. Ms Bache did not support the application. She said that any issues could be covered within the currency of the trial. The judge refused to adjourn the trial.
25.
DC Orr, having given further evidence in relation to his additional statements, was cross-examined by Ms Bache. She dealt with three topics. First, she established from photographs of Areguy’s Astra that it had a brake light in the middle of the rear windscreen. DC Orr agreed that the car seen in Academy Gardens had braked and that no brake light in the middle of the rear windscreen was apparent. It was put to him that this meant that the car on the CCTV was a different car to that owned by Areguy to which he said “it would yes”. Second, Ms Bache investigated what could be gleaned from the CCTV footage at the roundabout beyond the ANPR camera. DC Orr agreed that the order of vehicles at the ANPR would not necessarily be repeated precisely at the roundabout. He accepted that the CCTV at the roundabout was blurry. There was a white van which was distinctive which had passed the ANPR camera just after Areguy’s Astra. This van could be identified on the roundabout CCTV. DC Orr agreed that there were two light coloured hatchbacks just behind the van. When it was put to him that one of these vehicles could be an Astra, he said that one of the cars “looks like a Golf to me”. In relation to the other vehicle he said that “I didn’t think that it was an Astra but I can’t say more than that”. Finally, Ms Bache put to DC Orr that he was purporting to see things on the CCTV that were not very clear. He said that, if he were just relying on the CCTV, he would probably concede that. He said that he was looking at everything in totality. He accepted that “the quality of the CCTV speaks for itself” i.e. the quality was poor.
The judge’s directions
26.
The judge reminded the jury of DC Orr’s evidence as it had emerged in the course of Ms Bache’s cross-examination. He then directed them as to the approach they should take to his evidence:
“….it is for you, the jury, to make your assessment of what can be seen in that CCTV. So, in particular, DC Orr's evidence about the identification of the vehicle in Academy Gardens at about 9.20 pm in which he identifies the Astra, you will no doubt wish to take into account both what he says, any supportive evidence of what he says and what the Defence submits about that. You must look at that image with care and we have just looked at it and reminded you of it and of course you will have the movie CCTV as well. Ask yourselves whether it is of sufficient quality for us, the jury, to make an identification of that vehicle as a Vauxhall Astra saloon. And is the image of sufficient quality for DC Orr to have made the identification? He says that that image was of sufficient quality for making identification of the make and type of the vehicle and you must decide, firstly, whether that is right.
The Defence submit that it is not of sufficient quality to make an identification; the footage is two-dimensional; the footage is in black and white; the footage is at night and in artificial light, shining from a different angle. You must decide if the lighting was poor; whether there were light distortions; whether there were obstructions and at what distance the camera was from the vehicle and, indeed, the angle of the camera of course and overall whether it is poor quality image. If you conclude that that image that we have just been looking at is of such poor quality that even a person viewing the footage repeatedly and over a period of time could not make an identification, then disregard DC Orr's evidence on the issue entirely. If you conclude it is of sufficient quality, then examine DC Orr's evidence on this point. He is entitled to give his opinion from his repeated watching of the footage and from his knowledge of the investigation and the facts which could support his conclusion.
You must, of course, be aware of confirmation bias; that is DC Orr convincing himself that he can see something he was expecting to see. An image which is unclear on first viewing may become clearer to the viewer on repeated viewings or it may not. You must make a judgement about that. You have the images and you judge the facts. In your case you have had the time within the trial process to make the comparison yourselves and that trial process includes the period of your retirement. If you conclude that it is of such poor quality that you as jurors with the time available during the trial process are unable to make a comparison with a known image, then you should not attempt to do so. If you are sure it is of sufficient quality, then you have the photographs of the Astra and may make a comparison yourselves. I repeat; it is for you, the jury, to make assessment of what can be seen on that CCTV.
Of course, confirmation bias can work both ways. The defence for Areguy is that he did not drive his Astra into Academy Gardens and so the Defence assert that you can clearly see the vehicle on the CCTV in Academy Gardens is not his. The question for you is, is that actually so? As I say, you must be the judges of this and you may conclude that you are sure that DC Orr's identification of the car as an Astra by its shape is spot on, supported not least by the obvious point of going on the reconnaissance and the timings he relies on. On the other hand, you may conclude that the suggested differences between the CCTV and suggesting that other vehicles that could be an Astra can be seen on the roundabout at the relevant time and the anomalies shown up by the cell siting evidence leave you less than sure on the issue.”
Once DC Orr’s evidence in relation to what could be seen on the CCTV had been admitted, no criticism is made of the directions given to the jury. We have already noted the way in which the judge summarised the core issue in Areguy’s case. Proof of the presence of Areguy’s Astra in Academy Gardens was not determinative of that issue.
The first ground of appeal – fresh evidence
27.
This is the context in which it is argued that we should receive fresh evidence. Following his conviction those representing Areguy obtained a report dated 7 September 2021 from Mr Andy Wooller from Acuity Forensics. Mr Wooller is a forensic video analyst with a particular expertise in the identification of vehicles on video footage. Mr Wooller reached three clear conclusions. First, the vehicle identified by DC Orr as Areguy’s Astra entering Academy Gardens was not definitively identifiable as a Vauxhall Astra. Second, whichever vehicle entered Academy Gardens did not emerge from the cul-de-sac as suggested by DC Orr. The car which came out of Academy Gardens was a different car to the vehicle which had gone into the cul-de-sac. Third, a vehicle likely to be a Vauxhall Astra had passed the roundabout CCTV at exactly the time that might have been expected had the Astra driven directly from the ANPR camera to the roundabout. Mr Wooller was not called to give evidence before us. We shall proceed on the basis that his report should be accepted as accurate and reliable.
28.
Mr Dein argued that, had the jury heard the evidence of Mr Wooller, their verdict may well have been different. At the core of the prosecution case against Areguy was the issue of whether his Astra went into Academy Gardens. In his written submissions Mr Dein went so far as to suggest that, in the light of Mr Wooller’s evidence, it was questionable whether the prosecution had a sustainable case.
29.
We have no doubt that Mr Wooller’s evidence is capable of belief and that it would have been admissible at trial. Whether there was a reasonable explanation for the failure to adduce the evidence at trial is not a straightforward issue. For our purposes we shall assume that there was a reasonable explanation. The critical question is whether the evidence of Mr Wooller would afford a ground for allowing the appeal. We are satisfied that it would not.
30.
Of the three conclusions reached by Mr Wooller we consider that two were established in the course of the trial. DC Orr’s evidence that he could identify Areguy’s Astra as entering Academy Gardens was fatally undermined by two aspects of the evidence. First, he said that the car which entered Academy Gardens was a saloon version of the Astra. If that was right, it was not Areguy’s Astra which was a hatchback. DC Orr believed (wrongly) that Areguy owned a saloon rather than a hatchback. He used that incorrect information to confirm his identification of the car. Second, he accepted that the car he identified as Areguy’s Astra could be seen on the CCTV to brake and that no brake light in the centre of the rear windscreen was visible. He also accepted that Areguy’s Astra had such a brake light. That meant that, on his evidence alone, the car on the CCTV was not Areguy’s Astra. DC Orr’s evidence about what could be seen on the CCTV at the roundabout was equivocal. In relation to a vehicle seen on the CCTV, he said “I didn’t think it was an Astra but I can’t say more than that”. He accepted that the quality of the CCTV footage was poor. Mr Wooller’s evidence is that it is likely that the relevant car was an Astra. This evidence goes a little further than the concessions made by DC Orr but the distinction is not significant. For a jury’s purpose it would make no difference which assessment they accepted. Neither would demonstrate that Areguy’s Astra did not proceed directly from the ANPR camera to the roundabout.
31.
The evidence that the car which emerged from Academy Gardens was not the same vehicle as the one identified as entering the cul-de-sac was not before the jury. This was not something which Ms Bache was able to establish with DC Orr. She did not have the evidential material to do so. But the fact that DC Orr erred in his evidence about the same car having entered and left Academy Gardens can be of no consequence if the evidence that Areguy’s Astra could be seen on the CCTV footage to have entered the cul-de-sac was demonstrably flawed. Ms Bache was able to establish that via DC Orr’s concessions in the course of his evidence. Mr Wooller’s conclusion about there being two different cars merely underlines the unreliability of DC Orr’s evidence. It would not have affected the jury’s view about the evidence as to what could be seen on the CCTV footage.
32.
Mr Dein argued that DC Orr’s evidence purporting to identify cars should not have been admitted at all. He said that DC Orr gave opinion evidence when he was not qualified to do so. We agree that there were serious question marks in relation to DC Orr’s expertise. Police officers who have spent a long time watching and re-watching video material are entitled to give their opinion about what can be seen on the material. However, there was little in DC Orr’s witness statement which provided a basis for expertise arising from repeated watching of the footage. Moreover, the opinions expressed by DC Orr were of such equivocality that it could have been argued that they were of no value as opinion evidence. Even if these propositions are accepted, the issue is whether the admission of the evidence of DC Orr rendered the trial unfair or led to an unsafe verdict. For all of the reasons we have given in relation to the receipt of the evidence of Mr Wooller, we are satisfied that it did not.
33.
The prosecution case against Areguy was that he drove three men from Earl’s Court to Northolt and back again. The three other men were party to a conspiracy to murder. One of them, Mechita, was speaking to other conspirators during the journey. The journey was a reconnaissance trip for the later attack on Bassaragh. As the jury found, two of the men in the car were due to carry out the murderous attack. There would have been no reason to risk taking an innocent party on the journey, the risk being that he would tell the police about the reconnaissance and who was involved once his car was identified. There was a clear inference that Mechita’s telephone conversations related to the conspiracy. Areguy was sitting feet away from Mechita when those conversations took place. The explanation given by Areguy for the trip was that they were to have a meal with a friend of Mechita. On the fact of it, this explanation was highly unlikely. At the trial Areguy did not give evidence. In all of those circumstances there was a compelling circumstantial case against Areguy irrespective of whether his Astra could be shown to have gone into Academy Gardens. The judge was right to summarise the issue in the case in the way that he did i.e. the case did not depend on whether the Astra demonstrably entered Academy Gardens.
34.
It follows that we do not admit the fresh evidence of Mr Wooller. We do not give leave in relation to the ground referred to the full Court by the single judge.
The second ground of appeal – inadequate representation
35.
The general principles in relation to leave to put forward a ground not put before the single judge are well established:
James
[2018] EWCA Crim 285
. The hurdle for the applicant is a high one. Any new ground must be properly arguable and particularly cogent.
36.
The new ground is that Areguy’s representation was so incompetent that identifiable errors and irregularities occurred in the course of the trial such as to render the trial unfair and the verdict unsafe. In the first instance the complaint is directed at the solicitors representing Areguy. Once the inadequacies of the solicitors became apparent, Ms Bache should have taken steps to remedy the position. In addition there were aspects of her conduct of the case which fell below the appropriate standards.
37.
Areguy’s solicitors from an early stage of the proceedings were Archer Maher. The solicitor identified as having conduct of the case was someone named Niraj Keshwala. However, until shortly before the trial Areguy dealt principally with a man named Yazigi. Yazigi held himself out as a solicitor. He was not a solicitor. Moreover, before Areguy was charged and sent to the Crown Court, Yazigi was charged with offences relating to the use of mobile phones in prison by those who were to become Areguy’s co-accused. Areguy was not informed of the position.
38.
According to the evidence he gave to us, Areguy at no time met Yazigi. All communication was by telephone call or WhatsApp message with documents being sent via Dropbox. This may not have been surprising given that, for much of the relevant period, a lockdown associated with the pandemic was in place. Areguy’s evidence to us was that there was little substantive contact between him and Yazigi in relation to the preparation of his case. In particular, he was never aware of the significance of CCTV footage to be relied on by the prosecution. Mr Dein described the position as lamentable.
39.
We have no difficulty in agreeing with the proposition that Yazigi should not have been involved in the preparation of Areguy’s defence. He was charged with criminal offences involving two of Areguy’s co-accused. There was the clearest risk of a conflict of interest. Attendance notes from the file of Archer Maher reveal that Ms Bache became aware of the position on 18 December 2020. She notified Keshwala of her concerns. On 22 December 2020 she stipulated that Yazigi should no longer be involved in Areguy’s case. We have a statement from Yazigi in which he asserts that all concerned – Areguy, Ms Bache, Mr Mills – knew about his arrest from an early stage. That cannot be right in respect of Ms Bache. The contemporaneous attendance notes speak for themselves. Insofar as is relevant we do not accept Yazigi’s evidence on this issue. However, of itself, the position of Yazigi had no effect on the adequacy of the preparation of the case.
40.
The extent to which Yazigi prior to 22 December 2020 engaged in proper preparation of the case was greater than described by Areguy. We reach that conclusion from what is apparent from WhatsApp messages passing between Yazigi and Areguy. Some had attachments which showed that Areguy was being sent the served papers in the case albeit on a sporadic basis. There were also references to documents being sent via Dropbox. A proof of evidence was prepared by Yasigi or someone on his behalf. The proof contained a reasonable amount of detail in relation to Areguy’s defence which can only have come from him. We accept that the quality of the representation was far from exemplary even allowing for the difficulties created by the pandemic. We do not consider that, before consideration of the issue of CCTV, it was so incompetent that the trial was rendered unfair.
41.
Once Yazigi withdrew from the case, Keshwala assumed conduct. There is no evidence that he took any active part in the proceedings. He did not attend the trial. Ms Bache said that he was available at the end of a telephone but otherwise gave no assistance in the running of the defence case. She said that this was not a position to which she was unused. As counsel she was accustomed to being left in charge of the case once it was underway. Whatever might be said about this state of affairs, it did not affect the adequacy of Areguy’s representation once the trial was underway.
42.
Ms Bache was instructed in August 2020. She was brought into the case by her junior, Max Mills. Ms Bache gave evidence to us. She had one conference with Areguy in her chambers in about September 2020. One matter dealt with in the conference was the drafting of the defence statement. The document was drafted by Ms Bache. One of the matters raised in relation to disclosure was the CCTV of Academy Gardens referred to in Areguy’s interview. She did not at that point have sight of any CCTV material. As we have explained, none had been served as evidence at this point. Ms Bache did advise that a report should be obtained from a cell site expert. The significance of telephone usage was apparent from the served evidence.
43.
Ms Bache explained to us that she went carefully though all of the served material. She also said that Mr Mills had done all that she required of him as junior counsel. She did not go through everything with Areguy because, to a substantial extent, she did not need his instructions on the served material. It was not relevant to his case. In relation to CCTV Ms Bache received the compilation footage on 27 December 2020. Prior to that she had been told by prosecution counsel that there was no footage of Areguy driving into Academy Gardens. Her evidence on this point was not challenged. The statement accompanying the compilation footage did no more than produce it. The opening note served by the prosecution made no reference to any purported sighting of Areguy’s Astra on the CCTV footage. Ms Bache told us that she could have put two and two together and realised that, notwithstanding what she had been told by prosecution counsel, there was some significance to the CCTV footage from Academy Gardens. We consider that she did herself an injustice when she said that. There was no reason for her to guess what the prosecution case might be. She was entitled to rely on what she had been told and on the content of the prosecution opening. It is of note that even as late as 17 December 2020 the prosecution were serving CCTV footage of Academy Gardens as unused material.
44.
At an early stage of the trial in March 2021 Ms Bache did appreciate that the prosecution did intend to rely on CCTV footage to show that Areguy’s Astra had gone into Academy Gardens. We have already set out what she said in court on 9 March 2021. Ms Bache did not consider instructing an expert in relative to CCTV analysis at that point. In her view DC Orr’s statement uploaded on 10 March 2021 was problematic for the prosecution. That view was well-founded. She made very substantial progress in her cross-examination of DC Orr.
45.
Her evidence was that on 9 or 10 March 2021 she showed Areguy the footage on which the prosecution now intended to rely. She was able to do so because she had downloaded the footage onto her laptop. Areguy’s evidence was that Ms Bache was unable to play the footage. All he saw was a still or a screenshot. We do not accept his evidence on this point. Ms Bache by this point understood the significance of the footage. It is inconceivable that she would have proceeded without allowing Areguy to see the relevant footage.
46.
When the further evidence from DC Orr and his colleague was served later in March 2021 the issue of an adjournment arose in order to obtain expert evidence. Counsel for De’Silva made an application to the judge which was refused. Ms Bache discussed with Areguy the prospect of supporting the application and whether expert evidence ought to be obtained. Areguy told us that this discussion took place after the judge had ruled against an adjournment. Ms Bache’s evidence in chief was that the discussion occurred before the application was made though she was less certain on the matter when she was cross-examined. We are sure that the discussion preceded any application in court. Ms Bache was clearly anxious to consult Areguy throughout the trial. The only rational point at which to discuss an application to adjourn would be before the application being made on behalf of the co-accused, Ms Bache having been put on notice of the application by the co-accused’s counsel. Ms Bache’s evidence is that she discussed the pros and cons of instructing an expert with Areguy. She explained to him why it would not be a good idea i.e given the progress already made with DC Orr and the further deficiencies in his evidence on which he could be cross-examined. Areguy’s evidence was the only discussion occurred after the judge’s ruling on an adjournment and that Ms Bache told him that she would not apply for an adjournment because it would irritate the judge. We reject that evidence. We are sure that Ms Bache’s evidence on this issue is correct. Had she thought that an application should be made, she would have made it. The irritation of the judge would have been of no relevance.
47.
We are satisfied that Ms Bache’s reason for proceeding without any expert evidence was well founded. In her further cross-examination she made further inroads into the credibility and reliability of DC Orr in relation to the CCTV evidence. As we have explained in our rejection of the application in respect of the original ground of appeal, expert evidence simply would have been confirmatory of DC Orr’s unreliability.
48.
Ms Bache was put into a difficult position by the way in which the prosecution late in the day relied on CCTV footage purporting to establish that Areguy’s Astra had gone into Academy Gardens. In our judgment she dealt with the situation with considerable skill. There was no reason why she should have been aware of the significance of the CCTV footage earlier than the early stages of the trial in March 2021. Whatever the failings of the solicitors, there is no reason why they should have been so aware.
49.
Mr Dein argued that the failure by Ms Bache to commission a report from an expert witness at any stage was a culpable failure on her part. There was ample time to commission a report. Even if the significance of the CCTV footage only became apparent on 9 March 2021, that still left a number of weeks whilst the trial was continuing. We reject this argument. As we have said, Ms Bache took a considered decision which was wholly reasonable given the way the evidence of DC Orr developed. For the reasons we have given, it did not cause any unfairness to Areguy.
50.
Mr Dein also asserted that very little was done by Mr Mills in relation to mastering the background to the evidence. We find no evidence to support that assertion. Ms Bache did not suggest that Mr Mills was not on top of the case. We have the attendance trial note prepared by Mr Mills. It is apparent that it was a rolling document covering each day of the trial. It covers 71 closely typed pages. It includes detailed references to exhibits where appropriate. Whether this note was prepared to assist Ms Bache or the solicitors or both does not matter. It shows that Mr Mills was assiduous in his attention to the trial.
51.
We do not consider that the proposed new ground relating the alleged inadequacy of representation is arguable or cogent. We do not give leave to add the new ground of appeal.
Conclusion
52.
It follows that the application to appeal against conviction is refused. The fresh evidence adduced on behalf of Areguy would not afford a ground for allowing the appeal. Areguy was represented at his trial with skill and competence. His conviction did not result from any inadequacy of representation. | ```yaml
citation: '[2023] EWCA Crim 669'
date: '2023-06-14'
judges:
- LORD JUSTICE WILLIAM DAVIS
- HIS HONOUR JUDGE FLEWITT 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.
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 202103919/A3
[2022] EWCA Crim 104
Royal Courts of Justice
Strand
London
WC2A 2LL
Wednesday 13 July 2022
Before:
LADY JUSTICE CARR DBE
MR JUSTICE FRASER
SIR NIGEL DAVIS
REGINA
V
SIMON LEDDINGTON
__________
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 J EVANS
appeared on behalf of the Appellant
J U D G M E N T
Section 1 of the Sexual Offences (Amendment) Act 1992 applies in this case. No matter relating to any complainants shall be included in any publication during their lifetimes if it is likely to lead members of the public to identify them as the persons against whom offences were committed. Reporting restrictions therefore apply in this case.
MR JUSTICE FRASER:
1.
This is an appeal against sentence brought with the permission of the single judge, who also made a representation order. Mr Evans appears for the appellant before us and we are very grateful to him for his submissions. Reporting restrictions apply in this case.
2.
The appellant was sentenced in the Crown Court at Cardiff for two sets of two offences under the Sexual Offences Act, therefore four offences in total, to all of which he had pleaded guilty at the earliest opportunity. All of the offending related to child sex offences and were committed in what is sometimes called "online sting operations". This is where people pose online as underage children to expose and catch predatory paedophiles. Sometimes, as with some of these offences, the paedophile will turn up to a prearranged meeting point to meet someone they believe to be a child interested in sexual relations with them, where instead they will be confronted and arrested.
3.
On 18 May 2021 having pleaded guilty before the magistrates, the appellant was committed for sentence pursuant to section 14 of the Sentencing Act 2020 in respect of the offences on committal number S20210357. These were for two offences, namely (1) of arranging or facilitating a child sex offence, contrary to section 14 of the Sexual Offences Act 2003 and (2) breach of a Sexual Offences Prevention Order, contrary to section 103I(1) and (3) of the Sexual Offences Act 2003.
4.
On 24 August 2021, having pleaded guilty before the magistrates, the appellant was committed for sentence under the same statutory provision in respect of the offences on committal number S20210603. These two offences were also breach of a Sexual Offences Prevention Order, contrary to section 103I(1) and (3) of the Sexual Offences Act 2003 and attempting to send sexual communications to a child, contrary to section 15A of the Sexual Offences Act 2003.
5.
The Sexual Offences Prevention Order ("SOPO") had been imposed upon the appellant when he had previously been convicted of three sexual offences on 22 December 2011. On that occasion he was sentenced to a community order of 36 months in duration and also made the subject of that SOPO for a period of 10 years, which would therefore have expired in December 2021. Amongst the prohibitions in that order were that he must not seek the company or be in the company of any child under the age of 16, that he must not have in his possession or control any device capable of accessing the internet that did not have installed a parental lock or operational history facility, that he must allow any person approved of by the Chief Constable of any police force to inspect the device and identify all websites visited by him within a period of no less than 30 days earlier, and that he must not prevent such access.
6.
He breached this SOPO in 2021 which was in its final year of operation by means of contacting those, whom he thought were underage girls, by messaging their online profiles and starting conversations with them. Neither of these girls existed, as we have said. We shall refer to the first occasion using the false name of the profile, namely "Leona". Those offences were those contained on committal number 20210357. The other two related to the false name of "Rebecca" or "Bex" and were on committal number 20210603.
7.
The proceedings did not have a smooth course to the Crown Court due to some problems with the magistrates attempting to re-commit the same offences under committal number 0357, even though they had no power to do so. There were also difficulties and delays caused in the Crown Court and a number of adjournments. However by the time the offences came to be sentenced all these issues had been resolved and we refer to this only for completeness.
8.
For these offences he was sentenced in the Crown Court as follows (although we have received written and oral submissions from the appellant about the sentence for the section 14 offence which related to Leona to which we will shall return). For the section 14 offence which related to Leona he was sentenced to an extended sentence of eight years with a custodial element of four years and an extended licence period of four years; for the two breaches of the SOPO he was sentenced to 24 months' imprisonment on each, those sentences ultimately being ordered to run concurrently; and for the section 15A offence relating to Bex he was sentenced to six months' imprisonment, also to run concurrently. He also received ancillary orders including the imposition of a Sexual Harm Prevention Order ("SHPO") until further order and forfeiture of various electronic devices. That order was also made on 16 November 2021. The SHPO put restrictions on his use of the internet and social media and required the use of risk management software and placed other restrictions on his electronic devices. It also prohibited contact with those aged under sixteen, save for strict exceptions such with the express permission of the child's parent or guardian.
9.
Although the Crown Court Record Sheet indicates that a SHPO was made pursuant to section 103 of the Sexual Offences Act 2003, in this case the correct provision should have been section 345 of the Sentencing Act 2020. The earlier legislative provision has been mis-recorded due to an inability on the Crown Court IT system to reflect the current changes brought about by the Sentencing Code. It does not affect the validity of the order itself which we re-confirm.
10.
The facts of his offending are as follows. The offences relating to Leona resulted from a sting operation carried out by a group of paedophile hunters who set up a decoy profile of a child on an internet dating platform called Meet24. On 11 May 2021 the appellant responded to a profile on that platform. The decoy profile responded to his message giving her name as Leona and saying she was 12-years-old and was from Leeds. The conversation moved to WhatsApp and the appellant asked the girl to meet him at a car park in his home down of Monmouth in Wales. Although she mentioned her age on several occasions, he continued with the chats. He told her he would be her brother, that it would be okay for them to talk, and he said he talked to lots of other girls.
11.
On 16 May 2021 the appellant attended the car park opposite the ambulance station in Monmouth where he had arranged to meet the girl. He was met by a number of men from the paedophile hunter group who approached him and challenged him. The men told him they were aware he had been engaging in sexual conversations with children and had been sending explicit photographs to children online. The appellant admitted doing what they accused him of. and the men contacted the police who attended and he was arrested. He answered no comment in interview. Police officers who searched his home seized 20 items including a laptop, mobile phones, PlayStations, a memory stick, a SIM card and a hard drive.
12.
The other set of offences were also a sting operation set up by another group of paedophile hunters and the appellant was in contact with a decoy profile called "Bex" on a social media site called FastMeet. The appellant had originally made contact in around February 2021. They chatted on WhatsApp and the conversations included the appellant calling Bex "cute", "gorgeous", "honey" and "lush". Pictures were exchanged between them. The appellant sent emojis showing kissing and licking. He asked Bex for different pictures and told her that her legs were sexy. He said she was very special to him and that age did not matter. He said he fancied her and she should keep it a secret. He told her he would show her how to kiss and wanted to cuddle her in bed with him.
13.
He sent a picture of him wearing pyjamas and one of him wearing boxer shorts. On 13 May 2021 he sent two pictures of a male penis and told her it was for her to see and they must promise each other not to tell anyone. He asked her for a picture of her chest. She replied she was scared to do that because they were private parts of her body. The next day he asked again for such pictures, said he would sneak into her house so they could cuddle in the same bed and he would kiss her from the feet all the way up. Throughout the conversations the decoy profile told the appellant she was 14 years old and made several references to school and she was scared and said that she did not want to get into trouble.
14.
He was sentenced on a basis of plea which was accepted by the Crown regarding both sets of offences, namely that the activity contemplated was no more than kissing and cuddling. That basis of plea forms an important part of the substance of this appeal.
15.
His previous convictions related both to the offending for which he received a SOPO in 2011 but also that offending had resulted in a community order of 36 months which he had completed. That offence had involved him ultimately lying on a bed with a girl under the age of 16, kissing and cuddling her and engaging in masturbatory activity online.
16.
In terms of the offences to which this appeal relates, the Crown placed the breach offences in Category 1A of the relevant guideline. For the section 14 offence it is necessary to consider the guidelines for the substantive sexual offence, which in this case is said to be section 10 of the Sexual Offences Act, which is causing or inciting a child to engage in sexual activity. That offence together with section 9 (and the sentencing judge considered both at the same time) both had the same guideline matrix. The Crown placed that offence in Category 3A which has a starting point of 26 weeks and a range of a high level community order up to three years. There is no definitive guideline for a section 15A offence but the maximum sentence under that section is one of two years.
17.
In sentencing him the judge, who had the benefit of a pre-sentence report, first went through what sentence he considered should be passed on each of the four offences individually. He then considered dangerousness and after finding that the appellant was dangerous passed an extended sentence of eight years which he undoubtedly imposed upon the section 14 offence relating to Leona. Both the Crown Court Record and accordingly the CAO summary, and in the final passage of his sentencing remarks he makes this clear and this is also recorded in the DCS system which state that the sentence of eight years was passed on the count in relation to section 14.
18.
However counsel for the appellant has drawn our attention to what he submits is a different sentence, and he challenges the accuracy of that summary, and points out that in other passages of the sentencing remarks the sentencing judge explained that he had reached a sentence of only six months on that count.
19.
The reason for this difference in view in what sentence was actually passed at the Crown Court is a surprising one, but relates to what the sentencing judge actually said at different stages of the sentencing remarks. During stage one of the process which we have described, namely considering the differing sentences on each count, due to his choice of terminology and expression he explained the following:
"Before considering any additional aggravating or mitigating factors or credit for plea, I adopt the start point provided by the applicable guidelines. In relation to attempt to communicate sexually with a child, I take a start of 6 months' imprisonment. In relation to each of the breaches of the Sexual Offences Prevention Order, 3 years. In relation to the offence against section 14, 6 months."
20.
That passage is consistent with another to similar effect, and when they are read together the meaning appears clear. At page 4C of the transcript of the remarks the judge says he is increasing sentences on each of the other offences by three months to nine months, by which he means the non-breach counts, which include the section 14 offence. He then gives credit for guilty pleas on those two same counts and says the reduction would be "in relation to each of the other offences by 3 months to 6 months." This suggests he was giving a sentence of six months on each of the section 14 and section 15A offences. That is the only sensible explanation for his use of the plural “offences”.
21.
In respect of totality he said:
"First, the offences in relation to Bex must be concurrent with each other. Second, the offences in relation to Leona must be concurrent with each other but consecutive to those passed in relation to Bex because they are different victims and separate harm must be considered."
22.
He increased the sentences for the breach offences from a starting point of 36 months up to 42 months for aggravating factors, and then reduced them down for the pleas of guilty to arrive at 28 months, which he reduced further down to 24 months for totality because he was ordering them to run consecutively. That reached an aggregate of four years. In considering dangerousness he said the following:
"In these circumstances both conditions of section 280, subsection 1(e) of the Sentencing Act 2020 apply. That is, the earlier offence condition and the custodial term condition.
I consider the question of dangerousness. Despite the overwhelming evidence to the contrary, you told the probation officer writing the Pre-Sentence Report that you are not sexually attracted to children. That report identifies that there is an evident pattern of sexually motivated offending towards children and you both lured Leona to Monmouth and set out to meet her, indicating that this was not an offence where you are confined to obtaining sexual gratification online. You intended to have physical contact with a child."
23.
However, having considered and found the appellant dangerous, he then returned to the sentence on the section 14 count and stated:
"I follow the totality guideline as it applies in these circumstances and sentence you to an extended sentence of imprisonment in relation to the charge under section 14, which comprises a 4 year custodial term and an extended licence period of 4 years, 8 years in all ... In light of this, I impose concurrent determinate sentences as follows..."
24.
He then imposed the other sentences: two for the breach offences and the section 15A offence which he ordered to be served concurrently.
25.
We are clear, as is demonstrated by the Crown Court Record itself that the sentence ultimately passed upon the section 14 offence was one of eight years, namely an extended sentence of four years' custody and a four year extended licence. Given the maximum sentence under the relevant substantive offence for offences under section 10 is 14 years, that is not an unlawful sentence. Although in the circumstances we understand the confusion on the part of the appellant as to the sentenc he in fact received on this count and this could have been explained more clearly, we are of the view that the eight-year sentence was lawfully imposed. That does not however mean that it is not capable of challenge upon appeal and the test for this court is whether the resulting sentence in all the circumstances was manifestly excessive.
26.
First we turn to the issue of dangerousness and the imposition of an extended sentence on this appellant. We return to the basis of plea. This was the only activity intended by the appellant, which was kissing and cuddling. This was the same activity as he had been engaged in during 2011. We do not wish to undermine the seriousness of sexual contact of any type with children below the age of 16 and we do not wish our judgment in this case to suggest that this type of activity could never in any circumstances constitute serious harm. However where a basis of plea has been accepted by the Crown and no
Newton
hearing has been held a defendant must be sentenced on that basis. Where, as here, that basis involved only relatively limited sexual activity, with the same limited sexual activity having occurred in 2011, we do not consider in all the circumstances that it is justified on the facts of this particular case to conclude that there is a significant risk of the appellant causing serious harm to members of the public by the commission of further specified offences. This is required by section 280 of the Sentencing Act 2020, which was formerly section 226A of the Criminal Justice Act.
27.
It follows therefore that we are persuaded that passing an extended sentence of eight years on the section 14 offence resulted in a sentence that was manifestly excessive.
28.
We turn therefore to the correct sentence and categorisation of the offence under section 14. We are of the view that it is indeed an offence that should be categorised under Category 3A and it was correctly considered and analysed by the sentencing judge in arriving at the sentence that he discussed in the earlier part of his sentencing remarks when he concluded that a sentence of six months' imprisonment for that count alone was justified.
29.
In considering therefore what sentence should be passed on the section 14 offence, we agree with and adopt his reasoning and calculation in the first part of his sentencing remarks and arrive, as he did, at a figure of six months' imprisonment, having adjusted it down from nine months to reflect the appellant's guilty plea. That is the correct sentence that ought to be imposed for the section 14 offence. The other sentence of six months for the section 15A offence is not manifestly excessive taken in isolation.
30.
However, turning to the two breach offences, the judge imposed a sentence on each after credit for plea of 24 months assessing those offences as Category 1A. Mr Evans has urged upon us a categorisation of Category 2B. We consider that the sentences passed by the sentencing judge for the two breach offences were indeed manifestly excessive. In our judgment the two breach offences are on the cusp of category 1A only, taking account of harm, or at the very top of the category range 2B. This means that a figure prior to discount for plea should be either at the bottom of the range for Category 1A (which is two years, because the range for that offence is two to four-and-a-half years) or at the top of Category 2B (which is also two years). There is therefore the same figure of two years regardless of whether one takes the very top of Category 2B or the very bottom of Category 1A. Applying the discount for plea that figure becomes reduced by one-third and goes to one of 16 months' imprisonment on each count for breach of the SOPO.
31.
We therefore need to consider how to structure these four sentences. We are unpersuaded that the judge was wrong in principle or failed to have sufficient regard to the important principle of totality in the passage of his sentencing remarks where he concludes that the offences in relation to Leona should be ordered to run consecutively to those in relation to Bex. That was his clear conclusion prior to his coming on to consider dangerousness, and before his ultimate conclusion on the section 14 offence, which is that it should have attracted the extended sentence which we have explained.
32.
We consider that imposing the two sets of sentences consecutively was the correct approach. Both sets of offences were each in a pair, they were separate and were committed against different victims, albeit fictitious ones. They therefore represent separate criminality. They were both separate breaches against the existing SOPO. The overall criminality of the appellant is properly reflected by dealing with each pair with concurrent sentences for the offences against each fictitious victim, but consecutive to the other sentence for the other fictitious victim. We take account of totality.
33.
Therefore we impose sentences as follows, keeping the sentences for the two breach offences consecutive to one another. We allow the appeal, quash the extended sentence of eight years on the count under section 14 of the Sexual Offences Act 2003 and we quash the sentences of 24 months on each of the two counts for breach of the SOPO. We leave the sentence of six months on the section 15A offence undisturbed. We quash the order that the three determinate sentences be served concurrently. We substitute a sentence of six months’ imprisonment on the section 14 offence and substitute sentences of 16 months on each count of breaching the SOPO. We order that the two sentences under committal 20210357 be served concurrently with one another and those under committal number 20210603 be served concurrently with one another under that same committal number, but that the sentences under each committal number be served consecutively to one another.
34.
The result of this is that the total period of imprisonment becomes one of 32 months’ imprisonment, governed by the longest sentence under committal number 0357 of 16 months, being served consecutively to the longest sentence also of 16 months under committal number 0603.
35.
The appellant will be entitled to release after one-half of that overall term, that is as a result of the operation of section 244 of the Criminal Justice Act 2003 in calculation of the requisite custodial period under section 244(3). All other ancillary orders, including the imposition of the Sexual Harm Prevention Order remain undisturbed. It therefore follows that the appeal against sentence is allowed on that basis.
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: '[2022] EWCA Crim 104'
date: '2022-07-13'
judges:
- LADY JUSTICE CARR DBE
- MR JUSTICE FRASER
- 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:
[2006] EWCA Crim 2
Case No:
2005 02438 C5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEEDS CROWN COURT
HIS HONOUR JUDGE BENSON
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
11/01/2006
Before :
THE RIGHT HONOURABLE LORD JUSTICE RIX
THE HONOURABLE MR JUSTICE BELL
and
SIR JOHN ALLIOTT
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
- and -
Russell Joseph Bakewell
Appellant/ Defendant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Andrew Mitchell QC & Ms Camille Morland
for the
Crown
Mr Alistair MacDonald QC & Ms Gillian Batts
for the
Appellant
Hearing date : 12 October 2005
- - - - - - - - - - - - - - - - - - - - -
Judgment
This is the judgment of the court :
1.
This appeal arises out of a confiscation order made by HHJ Benson on 12 April 2005 at the Crown Court at Leeds under
section 6(2) of the Proceeds of Crime Act 2002
(“
POCA
”). He then made an order against the respondent to this appeal, Mr Russell Bakewell, in the sum of £10,000 with six months imprisonment in default of payment. The appellants are Her Majesty’s Revenue and Customs on behalf of the Queen (“HMRC”) who, subject to leave, have a right of appeal under sections 31(1) and 89(1) of that Act. HMRC submit that the judge erred in making an order limited to the sum of £10,000. They say that he should have made an order in the sum of over £400,000 representing the total tax (customs duty, excise duty and VAT, the “duties”) evaded by Mr Bakewell on the smuggling into this country from abroad of a consignment of 2.3 million cigarettes. On 12 October 2005 we heard HMRC’s application for leave to appeal, granted that application, heard their appeal and allowed it to the extent of substituting a confiscation order against Mr Bakewell in the sum of £403,959.67, with two years imprisonment in default of payment. We reserved our reasons, which are now contained in this judgment.
2.
On 18 October 2004 Mr Bakewell had pleaded guilty, on re-arraignment, together with his co-defendants Steven Cullen and Kenneth Wall, at the Crown Court at Bradford before Judge Benson, to the charge of being knowingly concerned in the fraudulent evasion of the duty chargeable on goods contrary to section 170(2) of the Customs and Excise Act 1979. On 29 November 2004 he was sentenced by Judge Benson to a term of six months imprisonment. His co-defendants received community punishment orders of 120 and 80 hours respectively.
3.
Mr Bakewell had pleaded guilty on a basis of plea. To understand it, it is necessary first to set out the facts of the offence.
4.
The cigarettes entered the United Kingdom at Felixstowe on 31 December 2003. They were shipped in a container from Dubai hidden behind large tyres used for commercial vehicles. The contents of the container were consigned to Mr Bakewell trading as RB Contracting. The shipping documents referred to “32 used earth moving tyres”. On 23 December 2003 Mr Bakewell had contacted a haulage company, Rutland Worldwide Freight, concerning their reception and onward transportation. On 31 December, on the container’s arrival, it was covertly inspected by HMRC and the cigarettes were found hidden behind the tyres. On 2 January 2004 Mr Bakewell gave instructions to Rutland to deliver the container to a demolition site in Huddersfield.
5.
The container was delivered to the site on 8 January 2004. Mr Bakewell was not there, but his two co-defendants were. Kenneth Wall was working at the site under his instructions. Mr Bakewell had instructed Mr Wall to unload the container into a van driven to the site by Steven Cullen. The judge was not satisfied that Mr Wall’s instructions extended to dealing with the cigarettes as distinct from the tyres. This was, as it seems to us, an odd distinction to make, but HMRC accept that on this appeal they are bound by the judge’s finding. Mr Cullen was acting on behalf of the originator of the consignment and the owner of the cigarettes, known only as “John”.
6.
During the transfer of the cigarettes into the van, customs officials who had been covertly observing the operation made themselves known. The prosecutions followed.
7.
Mr Bakewell’s basis of plea was as follows:
“1. I was approached by a male I know as John at a plant auction at Ferrybridge.
2. John and I agreed to import a container from Dubai. My understanding was that the container would be used to import a quantity of tyres and cigarettes.
3. I agreed to allow my details to be used by John. My name and address appears on the shipping documentation. I made arrangements with Rutland Worldwide Freight in the United Kingdom. I had no input into events in Dubai.
4. For allowing my details to be used and facilitating the importation of cigarettes I was to receive the tyres free of charge.
[This was the extent of my benefit.]
5. The cigarettes remained John’s property throughout. I was not involved in the distribution of the cigarettes. I was not going to receive any profit from the sale of the cigarettes.”
8.
The sentence in square brackets in italics was in the original version of Mr Bakewell’s basis of plea. It was objected to by HMRC and was deleted from the final version which went before the court.
9.
In the confiscation proceedings Mr Bakewell relied on his basis of plea to submit that the only benefit he received for the purposes of
POCA
were the tyres, whose value was agreed at £10,000. HMRC on the other hand argued that his benefit was either the resale value of the cigarettes as a whole or alternatively the pecuniary advantage of evading the duties for which he was liable on the cigarettes’ entry into the United Kingdom.
10.
In his ruling of 12 April 2004 the judge preferred Mr Bakewell’s submission. In doing so he distinguished two authorities with which he was pressed by HMRC and to which we will refer in greater detail below. One was
R v. Cadnam Smith
[2001] UKHL 68
, [2002] 2 Cr App R(S) 37,
[2002] 1 WLR 54
where the defendant had also evaded duty on the importation of cigarettes. As here, the cigarettes were seized and forfeited. The House of Lords agreed with the sentencing judge that the defendant had obtained a pecuniary advantage in the form and amount of the evaded duty and was therefore subject to a confiscation order up to the amount of his realisable assets accordingly. Judge Benson, however, distinguished this authority on the ground that there the defendant was to have some role in the sale and some benefit from the proceeds of sale of the cigarettes. The second authority was
R v. Ellingham
[2004] EWCA Crim 3446
(2 December 2004). That also involved the smuggling of cigarettes. The defendant there had entered a basis of plea to the effect that he was neither the organiser of the importation, nor the financier, nor the end user. His only reward was the promise of a payment of £10,000, of which he had received half. His only involvement was that, like Mr Bakewell, he had facilitated the importation and freight arrangements. It was, however, common ground there that the importation had given rise to a pecuniary advantage in the sum of over £1.1 million reflecting the evaded duty. It was held that the defendant had obtained a benefit to that extent. Judge Benson, however, distinguished this case on the ground that on the facts Mr Bakewell had less control over the transport operations than Ellingham.
11.
Thus Judge Benson cited the submission on behalf of Mr Bakewell that it would be incompatible with the basis of his plea to adopt the line taken by HMRC and continued:
“Of course there was in the case of
Ellingham
a basis of plea and so I have had to look and see whether the facts of this case can be distinguished from those in
Ellingham
. I have decided on balance that they can…Mr Ellingham took a much more controlling part in the importation, in my judgment, than did Mr Bakewell, because like Mr Bakewell he arranged with the freight forwarders to have the consignment delivered to a particular address, but that address was his own premises of which he had complete physical control. Not only that, he employed specifically for the purpose two young men to unload the consignment that contained the contraband cigarettes. That is distinguishable in some measure, and in my judgment a significant measure, from the role played by Mr Bakewell in this case…[E]ach case turns particularly on its own facts and here it seems to me that I cannot say in reality that the benefit to Mr Bakewell could be calculated either at the value of the cigarettes as part of the consignment or at the pecuniary advantage derived from the evasion of duty. It seems to me that his role was one step back from that of Mr Ellingham in that case, and so it seems to me that justice demands that the measurement of the benefit should be the estimate of the value of the tyres, which was £10,000.”
POCA
12.
Other than a passing reference at the start of his ruling to
section 6(4)(c)
Judge Benson did not cite any of POCA’s provisions. Perhaps that was unnecessary, for those and the very similar provisions of earlier statutes dealing with confiscation orders are no doubt very familiar to the judges of the Crown Court. However, it would perhaps be prudent to have before us at any rate a minimum of the provisions to which the court is obliged to give effect.
13.
Section 6
is headed “Making of order”.
Section 6(1)
, (2) and (3) sets out the conditions under it which it is mandatory for the Crown Court to proceed to consider the making of a confiscation order. There is no dispute in this case that those conditions applied.
14.
Section 6
then continues as follows:
“(4) The court must proceed as follows –
(a) it must decide whether the defendant has a criminal lifestyle;
(b) if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct;
(c) if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct.
(5) If the court decides under subsection (4)(b) or (c) that the defendant has benefited from the conduct referred to it must –
(a) decide the recoverable amount, and
(b) make an order (a confiscation order) requiring him to pay that amount.
(6) But the court must treat the duty in subsection (5) as a power if it believes that any victim of the conduct has at any time started or intends to start proceedings against the defendant in respect of loss, injury or damage sustained in connection with the conduct.”
15.
In the present case, HMRC did not allege a criminal lifestyle, but put its case on the particular criminal conduct to which Mr Bakewell had pleaded guilty. Therefore the judge was obliged to make a confiscation order in the amount (subject to the “available amount”, see section 7(2) and section 9) in which he found the defendant to have benefited from his conduct.
16.
Thus
section 7
, headed “Recoverable amount” provides:
“(1) The recoverable amount for the purposes of
section 6
is an amount equal to the defendant’s benefit from the conduct concerned.
(2) But if the defendant shows that the available amount is less than the benefit the recoverable amount is –
(a) the available amount, or
(b) a nominal amount, if the available amount is nil.
(3) But if
section 6(6)
applies the recoverable amount is such amount as –
(a) the court believes is just, but
(b) does not exceed the amount found under subsection (1) or (2) (as the case may be).
17.
Section 76
also contains relevant provisions regarding “Conduct and benefit”:
“(3) Particular criminal conduct of the defendant is all his criminal conduct which falls within the following paragraphs –
(a) conduct which constitutes the offence or offences concerned…
(4) A person benefits from the 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.”
18.
There was no dispute on this appeal (a) that Mr Bakewell had become liable as the importer of the cigarettes to pay the duties payable on their import; and (b) subject only to the submission that his basis of plea made it impermissible to take account of this fact, that he had obtained a pecuniary advantage on the importation of the cigarettes in the value of the duties payable but evaded (see
section 76(5)
above).
19.
There was some discussion during the appeal as to whether, if Mr Bakewell were to be rendered liable to a confiscation order in the amount of the pecuniary advantage so obtained he would be doubly penalised in that he would also remain liable to pay the duties evaded. However, we were informed by Mr Andrew Mitchell QC, counsel for HMRC, that where a confiscation order was obtained reflecting the duties payable but evaded, it was the policy of HMRC to seek no other recovery. In this connection, no reliance was placed on behalf of Mr Bakewell, either here or in the Crown Court, on
sections 6(6)
and
7(3)
. If those provisions apply to the possible recovery of evaded duty by HMRC, then in theory they are a means by which the possible unfairness of a double liability can be avoided. As it is, HMRC eschew any intention of seeking to enforce such a double liability.
The submissions
20.
On behalf of HMRC Mr Mitchell submitted that the judge had erred in law in seeking out minor factual distinctions between this and previous authorities. Such distinctions were irrelevant once it was clear that Mr Bakewell had obtained a pecuniary advantage in the amount of the evaded duties, had thus obtained property, viz a sum of money equal to the value of the pecuniary advantage, and had therefore benefited from his criminal conduct in a like amount: see sections 6(4)(c), 6(5), 7(1) and 76(1) to (5). It was therefore irrelevant that on his basis of plea Mr Bakewell had denied any other benefit than receiving the tyres. He could not, and did not, deny his liability for and evasion of the duties: that was the essence of the criminal conduct for which he had pleaded guilty. This case therefore fell within
Cadnam Smith
and
Ellingham
.
21.
On behalf of Mr Bakewell, Mr Alistair MacDonald QC did not deny the liability for and evasion of the duties but nevertheless submitted that the basis of plea was the absolute solution to the case and had to be wholly respected by the court. On that basis of plea Mr Bakewell had made clear the limits of his benefit, namely the tyres. He relied on
R v. Lunnon
[2004] EWCA Crim 1125
,
[2004] 1 Cr App R(S) 24
as a pertinent illustration of that principle. Subject to the basis of plea, however, he agreed that there was no escape from the principles laid down in the authorities relied on by HMRC.
22.
It followed from Mr MacDonald’s submissions that he took his stand on different ground from that which the judge had taken. Judge Benson had acknowledged that
Ellingham
was itself a basis of plea case, but nevertheless distinguished it on the underlying facts relating to the degree of control which the defendant had there exercised over the operations. Mr MacDonald, on the other hand, had in logic to say that what distinguished
Ellingham
from this case was that the bases of plea in them respectively differed. Likewise he set aside all other cases relied on by HMRC, for instance
Cadnam Smith
itself, on the simple ground that they were not basis of plea cases.
HMRC’s case at the Crown Court
23.
There was some uncertainty as to whether HMRC had put their case below on the basis of the obtaining of a pecuniary advantage in the form of the duty evaded, or solely on the basis of the obtaining of property in the cigarettes themselves. On consideration it appears, however, that their case was put in the alternative – as the citation from Judge Benson’s judgment above itself demonstrates. It was for this reason that HMRC’s submissions were complicated by their attempt to quantify both of their approaches. The documents demonstrate some of the difficulties involved in their calculations. Even the calculation of the duties (itself divided into customs duty, excise duty and VAT, but by far the greater part of this is the excise duty) depends on establishing a base value for the cigarettes. Since the brand in question was unknown in the UK a notional figure of £0.65 per packet of 20 was adopted. HMRC at various times put forward differing rates for the customs duty involved, leading to different total figures. On appeal HMRC restricted their claim to the lower total, amounting to £393,959.67.
24.
The alternative claim depended on valuing the disposal value of the cigarettes and presented far greater difficulties: HMRC’s estimate for this was £422,036.73, based on the cheapest cigarettes on sale at an ASDA supermarket. The judge was sceptical, pointing out that the reality was that the cigarettes would have been sold into the market at a discounted price.
25.
The various figures put forward at different times by HMRC may have led to some justifiable confusion on the part of the judge. Indeed, the fact that one, perhaps even the first, of their alternatives for the benefit obtained was the cigarettes themselves may perhaps explain the judge’s apparent gut feeling that Mr Bakewell had obtained no benefit other than the tyres. As he said: “all this is speculative and it does indicate the difficulties of this sort of application”.
26.
So much so that following the ruling of 12 April 2004 HMRC returned to the judge on 6 May 2004 with an application that he vary his decision under “the slip rule” (a reference to section 155 of the Powers of the Criminal Courts (Sentencing) Act 2000) so as to make an amended confiscation order in the amount of the duties evaded. That application was successfully resisted by Mr Bakewell. The judge said –
“it seems to me that it would be wholly inappropriate to accede to the Crown’s submissions that because the matter wasn’t put fully before me on the previous occasion I should now revisit it and take an action which would increase the confiscation order of £10,000 by a sum in excess of £400,000. It seems to me that that would never be an appropriate basis for operating the power that I have under section 155, and that to do so would be oppressive…”
27.
We do not doubt that the judge was fully entitled to refuse that application and leave the dispute to HMRC’s right of appeal. We are, however, satisfied that the two alternatives were always before the judge and that we are entitled on this appeal to consider the sole way in which HMRC now wish to put their case, which is that, despite the basis of Mr Bakewell’s plea, he has benefited in the form of a pecuniary advantage which he obtained at the time of importation in the value of the duties evaded.
The authorities
28.
The leading authority, although a basis of plea was not in issue in that case, is
Cadnam Smith
, the essential details of which we have already set out above. The defendant there imported the cigarettes in a boat which had been bought for him by the organiser of the smuggling operation. The House of Lords restored the confiscation order of the sentencing judge, who had found that the defendant had benefited both from the pecuniary advantage of the duty evaded and from the purchase of the boat in his name. This was even though both cigarettes and boat had been forfeited. The relevant provisions of the
Criminal Justice Act 1988
(as amended) were in substantially the same terms as
section 76(4)
and (5) of
POCA
. The court of appeal had overturned the confiscation order on the ground that the defendant had received no benefit from the cigarettes and remained liable for the duty. The position would have been different if the cigarettes had been sold on, for then the duty evaded would have been part of the profit on that sale.
29.
Lord Rodger of Earlsferry, however, with whose speech their other Lordships agreed, pointed out that the fate of the cigarettes was irrelevant to the advantage gained by evading duty: the cigarettes may have been lost after importation but before sale (for instance in the sinking of the boat) but that would not have affected the fact that the importer was better off by evading duty than if he had paid it. Lord Rodger went on to refer by way of analogy to the position in the case of the proceeds of drug trafficking, citing
R v. Banks
[1997] 2 Cr App R(S) 110: such proceeds were not confined only to profits but covered all sums which were the product of drug trafficking whether profits or not. Lord Rodger continued:
“26. If, then, the value of property obtained as a result of or in connection with the commission of an offence is simply the value of the property to the offender when he obtained it, even if it is subsequently destroyed, damaged or forfeited, one would expect the same general approach to apply in the case of a pecuniary advantage. And indeed subsections (4) and (5) of
section 71
of
the 1988 Act
produce that result…
27. That being so, the fact that the respondent and his co-accused were unable to realise the value of the contraband cigarettes is irrelevant to the question whether they derived a pecuniary advantage from fraudulently evading the excise duty on them. If the cigarettes had not been seized and the respondent and his co-accused had been able to sell them, then the money which they received from selling them would have been “property” in terms of
section 71(4)
. In that situation they would not only have derived a pecuniary advantage in terms of
section 71(5)
from evading the duty but would also have obtained property in terms of
section 71(4)
in the form of the sale receipts. Their benefit from the commission of the offence would have been made up of these two elements.
28. Mr Emmerson sought to support the approach of the Court of Appeal to the application of
section 71(5)
by arguing that the question of whether an offender had derived a pecuniary advantage from his offence was a question of fact, to be determined in the particular circumstances of each case. In some cases – for example, where the contraband goods were sold – the position would be clear. The same might apply where someone smuggled in a Cartier watch and subsequently wore it for some months. In this case, however, where the customs officers had forfeited the cigarettes as soon as the boat reached Goole, it was impossible to say that the respondent had derived any pecuniary advantage whatever from evading the duty. Apart from all the other difficulties, this approach introduces a degree of uncertainty that is out of place in the application of a penal provision of this kind. This was highlighted by counsel’s understandable reluctance to indicate how long the respondent would have had to have the cigarettes after evading payment of the duty before he could be said to have derived a pecuniary advantage from his offence. Would a day have been enough? Or a week? The test to be applied in answering such a question is altogether too obscure. For this reason alone, the approach advocated by Mr Emmerson would be unworkable and must be rejected.
29. I am accordingly satisfied that the decision of the Court of Appeal on this point was wrong. It is worth adding that, if adopted, their interpretation would go a long way to making the confiscation provisions ineffective against smugglers. After all, there will be few, if any, cases where the customs officers will fail to seize contraband goods which they find in the hands of smugglers. The decision of the Court of Appeal would mean that in any such case, for the purposes of
section 71(5)
, the smugglers would derive no pecuniary benefit from evading the excise duty and so no confiscation order could be made against them. Fortunately, the terms of the legislation do not lead to that result.”
30.
Finally, Lord Rodger considered the case of the boat. Since the defendant’s realisable assets did not even stretch to meeting the duty evaded, the question of whether he was liable for the value of the boat as well was academic. There was no separate question on appeal to the House of Lords to deal with that issue. Nevertheless, Lord Rodger said that it was not clear on the available evidence what the value of the boat would have been to the defendant at the time when he obtained it. Therefore Lord Rodger would have left that question, if it had arisen, open.
31.
A consideration of Lord Rodger’s speech in our judgment demonstrates that the liability of a smuggler who evades duty which he becomes liable to pay on importation is a pecuniary advantage obtained rendering him liable to a confiscation order in the amount of the duty evaded irrespective of whatever the fate of the contraband may be and indeed whatever the smuggler’s role would have been in dealing with or profiting from that contraband. If the importation had gone undetected and the contraband sold, it may be that the defendant, if he had obtained any share of the proceeds, would have been liable in that amount too: although the question of double counting might arise, which did not have to be considered in
Cadnam Smith
. Nor is it clear to us what might be the position if the defendant smuggler in question was the owner of the contraband (not our present case, nor even perhaps the case in
Cadnam Smith
) and thus might be said to have obtained the property of the cigarettes themselves (for the purposes now of
section 76(4) of POCA)
. However, HMRC no longer relied in this appeal on that aspect of the matter. We can well understand that their former reliance on the cigarettes themselves as property and thus a benefit obtained by Mr Bakewell, when he was only a facilitator and was never going to have any interest in them or their disposal, may well have been a confusion which precipitated the judge’s decision. However, if consideration is confined to
section 76(5)
and the matter of pecuniary advantage obtained by the evasion of duty, it is clear that the House of Lords’ solution is a matter of principle and does not depend, as Mr Emmerson sought there to submit, on the particular circumstances of each case. Therefore, we think that Judge Benson was to this extent in error in seeking to find that the principle of
Cadnam Smith
could be avoided by distinguishing Mr Bakewell’s position, either with respect to his interest in the disposal of the cigarettes or with respect to his control over the precise details of the operation of the transport of the cigarettes, from those of any other defendant.
32.
The question remains whether Mr Bakewell’s basis of plea makes all the difference, as Mr MacDonald submits. For these purposes the linchpin of Mr MacDonald’s submission is
Lunnon
. That was a case of drug trafficking not involving the evasion of duty. The defendant there pleaded guilty to conspiring to supply cannabis on the basis that he had derived no financial benefit from his involvement in the conspiracy, although he had been promised £200 for his role in transporting a sum of money for the purchase of the drugs. He had also driven a van in which the drugs were concealed without any discussion regarding additional payment. It was also conceded by the Crown that it accepted that he had had no prior involvement in drug trafficking. He was ordered to pay £12,371 under a confiscation order on the basis, apparently, that a Golf car he was assumed to own was a benefit which he had derived from drug trafficking. In coming to this conclusion the sentencing judge had applied the statutory assumptions contained in
section 4(3) of the Drug Trafficking Act 1994
, holding that there was nothing to displace them in the light of the defendant’s lies and a paucity of documentation in respect of his business. (Those assumptions, the equivalent of which are found in
section 10 of POCA
, require a court considering a confiscation order to assume that any property in the defendant’s hands at any time during the period of six years before the commencement of the proceedings represented the proceeds of drug trafficking or crime as the case may be. In the case of
section 10 of POCA
, however, those assumptions only apply if the court decides under
section 6(4)(a)
and (b) that the defendant has a criminal lifestyle.) Eady J, giving the judgment of this court, observed (at para 9):
“It is thus apparent that the learned judge put to one side in this context the agreed basis of plea and, in particular, the acknowledgment of the Crown that the appellant had no previous involvement in drug trafficking.”
33.
The Crown sought to meet this difficulty head-on by submitting that “a defendant may properly be sentenced on the basis that he has not previously been involved in drug trafficking, yet have a confiscation order made against him relating to previous drug trafficking” (at para 15). No authority is referred to as supporting this paradoxical submission. Eady J observed (at para 17):
“No doubt one could envisage circumstances where the Crown has discovered prior to the conclusion of a confiscation hearing that such a concession has been wrongly made. Further information may have come to light which demonstrates this to have been the case. In such circumstances, the appropriate course would be for the Crown to notify the defendant that the concession has been withdrawn and that, accordingly, he will have the choice of proving on the balance of probabilities that he was, after all, a first-time offender, or of inviting the court to be satisfied that there would be a serious risk of injustice, for some other reason, if the statutory assumption were to be applied. What is plainly unacceptable is for the concession to be made part of the sentencing process, without qualification, but for reliance to be placed, tacitly, on the assumptions when it comes to the confiscation hearing.”
34.
The confiscation order was therefore quashed.
35.
Mr MacDonald also relied on
R v. Lazarus
[2004] EWCA Crim 2297
,
[2005] 1 Cr App R(S) 98
, a case of drug trafficking dealt with under
POCA
, where
Lunnon
was considered but distinguished. Lazarus pleaded guilty to one count of supplying cocaine and six further counts of possession. As a result of two searches of his home, police found packages of drugs and £13,880 cash on one occasion and £600 on another. His basis of plea, however, was that he had allowed his home to be used for the six month period charged in the indictment as a safe house for the storage of money for someone else; and that the drugs found were for his own use. The issue on the confiscation proceedings was whether the substantial sums of money passing through the defendant’s bank account in the previous six years were the proceeds of drug trafficking. The sentencing judge applied the statutory assumptions in
section 10 of POCA
, disbelieved the defendant, who gave evidence, and found that the relevant sums amounted to £51,345. It was submitted on appeal that because Lazarus’s basis of plea was accepted, there must be a serious risk of injustice if the statutory assumption was made in relation to any money passing through his hands other than during the six-month period when he admitted that he was involved in the supply of cocaine by storing money for the dealer. However, this court held that the basis of plea was not inconsistent with prior drug trafficking, the Crown had never been invited to agree, as they had in
Lunnon
, that there had been no previous trafficking, the defendant had known perfectly well from shortly after the acceptance of his plea that the Crown were seeking to rely on the statutory assumptions and had had ample opportunity to rebut them. This court therefore upheld the making of a confiscation order in the amount found by the judge, but more correctly substituted an order under
the 1988 Act
for the order incorrectly made under
POCA
.
36.
In our judgment these authorities do not assist Mr Bakewell. They are not concerned with a liability to pay duty evaded through smuggling of contraband or with the concept of a pecuniary advantage. They merely demonstrate both the principle and the limits of the principle that a confiscation order cannot be made in the teeth of an inconsistent basis of plea accepted by the Crown. Indeed
Lunnon
turned not so much on a basis of plea, as a concession by the Crown that simply flew in the face, as their submission on appeal demonstrated, with a confiscation order premised on previous drug trafficking.
37.
Of much greater relevance is
Ellingham
, which is both a basis of plea and a pecuniary advantage case. The facts were very similar to those of the present case. Ellingham was involved through his company of which he was the sole director in the freight forwarding aspects of the importation of contraband cigarettes. That was his only involvement, and his sole reward was to be £10,000 of which he had received half. He pleaded guilty on that basis. It was accepted at the confiscation proceedings, however, that the importation had given rise to a pecuniary advantage in the sum of the duty evaded.
Lunnon
was not referred to in the judgment of this court given by Pill LJ (and may not have been cited) although a basis of plea point was taken (at para 18) in order to seek to distinguish that case from
Cadnam Smith
: but the submission failed. Pill LJ said (at para 20):
“It was the appellant who was responsible for the importation and storage of the goods, whatever reward he might eventually have been expecting, and, in our judgment he derived a pecuniary advantage within the meaning of the subsection upon the importation. We follow the reasoning of Lord Rodger, in
Smith
.”
38.
In our judgment those words apply to this case. We would go further. Mr Bakewell’s basis of plea simply did not address the question of the pecuniary advantage he had obtained by importing the cigarettes and evading the payment of duty on them. His basis of plea was intended to emphasise that his involvement in the smuggling operation was a limited one, and that his reward was also limited to the value of the tyres which were given to him as his payment. It is entirely consistent with that basis of plea that he also obtained the pecuniary advantage of evading the duty he was liable to pay on importation. Indeed, that was in effect accepted by his plea of guilty. In any event the Crown successfully objected to the (arguably merely conclusary) sentence “This was the extent of my benefit”. This case is an a fortiori example of the situation in
Lazarus
.
39.
Mr MacDonald has suggested that this result is unfair. It seems to us that it is not. Until the duties are paid, Mr Bakewell continues to maintain the pecuniary advantage which he obtained on importation. The ultimate fate of the cigarettes is irrelevant, as Lord Rodger’s speech demonstrates. The potential for unfairness lies only in the possibility for a defendant to be liable both for a confiscation order in the amount of the duty evaded and for the payment of that duty on top. However, Mr Mitchell has made it clear that HMRC rest content with the confiscation order. No reliance has been placed by Mr Bakewell on
sections 6(6)
and
7(3)
.
Conclusion
40.
In the event, to obviate the need for any remission to the Crown Court (see section 31(2)), it has been agreed that the relevant sum of the pecuniary advantage is £393,959.67. To this must be added the sum of £10,000 representing the value of the tyres which were in any event property which, as Mr Bakewell concedes, he obtained as a result of or in connection with his criminal conduct. The total sum of the confiscation order must therefore be £403,959.67. There is no problem in this case about available assets. For these reasons this appeal was allowed and the confiscation order varied so as to stand in the amount of £403,959.67. A period of two years imprisonment (in place of the six months ordered by the judge) was ordered to be served in default of payment. | ```yaml
citation: '[2006] EWCA Crim 2'
date: '2006-01-11'
judges:
- THE RIGHT HONOURABLE LORD JUSTICE RIX
- 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}
======
| Neutral Citation Number:
[2005] EWCA Crim 890
Case No: 200405725 A8 & 200405726 A8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE PAGET QC
THE CENTRAL CRIMINAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 22
nd
April
Before :
LORD JUSTICE AULD
MR JUSTICE BEATSON
and
MR JUSTICE WAKEREEY
- - - - - - - - - - - - - - - - - - - - -
Between :
REGINA
Applicant
- and -
STEPHEN RONALD HERBERT
and
GARY COLIN BEARD
Respondents
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Aftab Jafferjee
for Her Majesty’s Attorney General
Mr John Hurlock
for the respondent, Herbert
Miss Susan Rodham
for the respondent, Beard
Hearing date :
18
th
January 2005
- - - - - - - - - - - - - - - - - - - - -
Judgment
Auld LJ :
1.
On 1
st
July 2004, before His Hon Judge Paget in the Central Criminal Court, the offenders Stephen Ronald Herbert and Gary Colin Beard, pleaded guilty to three counts on an indictment in which they were jointly charged: 1) with conspiracy to manufacture prohibited weapons; 2) conspiracy to sell or transfer prohibited weapons; and 3) conspiracy to possess firearms with intent to enable others to cause fear or violence.
2.
On 10
th
September 2004 the Judge sentenced each of them to concurrent terms of six years imprisonment on each count, having expressly taken nine years as a starting point and having given them “full credit” for their pleas of guilty.
3.
This is an application by the Attorney-General under
section 36 of the Criminal Justice Act 1988
for leave to refer those sentences to this Court as unduly lenient.
4.
The Court grants leave and treats the application as the hearing of the reference.
5.
The offenders, Herbert and Beard, are respectively 47 and 45 years old. Over a ten months’ period from April 2002 to February 2003 they obtained from two suppliers in London a vast quantity of blank-firing hand-guns and corresponding blank ammunition. One of these suppliers was Dennis Target, who supplied the items from his shop premises called Target Arms in Lordship Lane. The second was Guner Salih, who stands accused of the same conspiracies and has yet to be tried. He had a shop called Moderne Buckles in Bethnal Green Road at which he sold a variety of blank firing hand-guns, camouflage clothing and the like.
6.
Over the ten months period of the conspiracies Herbert and Beard converted the weapons and ammunition from those sources into effective lethal barrelled prohibited weapons capable of firing the ammunition. They then sold the firearms and ammunition direct to interested criminal parties or through Salih’s shop. Although the prosecution could not precisely quantify the enormous scale of their manufacture and trade in the weapons, its evidence showed, on a conservative basis, a figure of more than 150. It was plain from that scale of manufacture and trade, and from individual instances of provable or attempted sales of the weapons, that they were destined for the criminal fraternity – for the purpose at the very least of putting potential victims of crime in fear.
7.
The conspiracies began in April 2002 with Herbert approaching Target, saying that he needed large quantities of blank-firing guns and corresponding ammunition for him to sell as a market trader. Target sold him a quantity at discounted prices. Two months later, in June 2002, Beard introduced himself to Target as a friend of Herbert, and took over the purchasing there, again at discounted prices.
8.
Overall, in a period of five months from April to August 2002, Herbert and Beard, between them, bought from Target 160 8 mm blank-firing handguns, 1,700 rounds of 8 mm calibre blanks and a number of boxes of air pellets. The pellets were for use in converting the blanks into bulleted ammunition suitable for the hand-guns once converted into weapons. There was evidence of specific instances in May and July of Herbert dealing in the converted weapons and ammunition.
9.
Thereafter, Herbert and Beard turned to Salih as their main supplier. In October 2002 the police began a surveillance operation on Herbert, which they later extended to Beard. This produced evidence: of a number of visits by Herbert to Salih’s shop to purchase the blank-firing hand-guns and ammunition; of their visits to premises of Beard at Mountacre Close in South East London, which they used as the factory for the conversion of the purchases into lethal barrelled prohibited weapons; and of their visits to a small lock-up shed near Rivets House in Coopers Road SE2, which they used as a store for the converted weapons and ammunition.
10.
The police surveillance continued into January 2003 when Beard, as well as Herbert was observed making purchases from Salih - and also Target - and taking them to the factory at Mountacre Close. There were also meetings at the store in the shed at Rivets Close.
11.
On 24
th
February 2003 the police moved in and arrested the two men, bringing the conspiracies to a close. Searches of the factory at Mountacre Close revealed the tools of their unlawful trade, a number of converted weapons and some yet to be converted. Similar searches of the store shed in Rivets Close showed a number of converted and partly converted weapons, some awaiting conversion, and also quantities of ammunition of various sorts.
12.
In police interviews, both Herbert and Beard declined to answer any questions.
13.
On 25
th
February 2003 the police charged them with these offences. As will appear, it was not until 15 months later, on 1
st
July 2004, the first day of trial and just before the jury were sworn, that they pleaded guilty to the offences. Those pleas followed the failure of pre-trial submissions by their respective counsel, Mr John Hurlock and Miss Susan Rodham, to exclude certain evidence and the following events.
14.
Shortly after the Judge’s dismissal of the pre-trial submissions, Mr Hurlock, received a message from the Judge, via the court clerk, that, if the offenders were prepared to plead guilty to the three counts, the Judge would allow them a full discount for such pleas. That prompted Mr Hurlock to take instructions from Herbert, from which he prepared a written basis of plea to the counts. It contained an assertion that “he was not responsible for the manufacture of all the guns” the subject of count 1 – namely over 300 referred to in the prosecution papers as having been manufactured within the period of the conspiracies. Beard’s counsel, Miss Susan Rodham, also discussed with him a possible basis of plea, in which he would accept guilt on all three counts, but as to count 1, only on the bases that: 1) although he had been a party to the conspiracy charged in count 1 to manufacture the weapons, he had played a minimal role in their direct manufacture; 2) the conduct charged in the other two counts was incidental to that charged in count 1; and 3) he had a lesser role than Herbert, in particular he had not been involved with Salih.
15.
Mr Hurlock and Miss Rodham then, in the presence of Mr Mark Gadsden, prosecuting counsel, sought an indication from the Judge in chambers as to his likely approach to sentencing. Mr Hurlock asked him whether, if Herbert were to plead guilty to counts 1 to 3 at that stage, he would receive “full credit” for his plea. The Judge replied that he could see no basis for not giving him and Beard “full credit” for their pleas and that his provisional view was that he would sentence concurrently on the three counts since they were “part and parcel of one enterprise”.
16.
After a short adjournment in which to allow counsel to take instruction from their lay clients, on return to court, Mr Hurlock put before the Judge the written statement of the basis of Herbert’s proposed plea of guilty, Miss Rodham indicated that she too had prepared such a statement on behalf of Beard and outlined it to him in summary terms. And they asked for the indictment to be put again to their respective lay clients. Before that was done, Mr Gadsden indicated that while he could not, on behalf of the prosecution, agree the proposed bases of plea, there were some assertions of fact in them that the prosecution could not “gainsay”. In particular, he indicated that, regardless of the points being advanced by offenders in those statements in diminution of their respective roles, the prosecution case was that the numbers of guns in which they had been involved as conspirators, though not necessarily in actual physical conversion, was in the hundreds. Mr Gadsden also indicated that, for the purpose of sentencing, the prosecution did not agree with the proposition indicated provisionally by the Judge, that the three counts should be treated for sentencing purposes as all part of one offence, a matter that the Judge impliedly acknowledged he would have to leave open until considering sentence.
17.
The offenders were then re-arraigned, and each pleaded guilty to the three counts. The matter of sentence, including how the Judge should approach the offenders’ respective statements of basis of plea, was then adjourned to 10
th
September 2004.
18.
On the adjourned hearing, Mr Gadsden, in his outline of the prosecution case, whilst again indicating that he could not “gainsay” some of the matters relied upon by the offenders in their statements of basis of plea, described the case as the largest case in the country of conversion of blank firing weapons into fully functional prohibited weapons. He said that the number of weapons with which the offenders had been involved were in the hundreds. The Judge, in the course of Mr Gadsden’s opening, in seeking confirmation of the maximum sentence available and that imposed in another case, accepted that the quantity here was “enormous”.
19.
In the course of their mitigation counsel on behalf of both offenders placed considerable emphasis upon the respective basis of plea statements and upon the prosecution’s inability to “gainsay” them. They also relied upon the imprecision of the prosecution case and evidence as to the number of guns with each of them had directly dealt. And they urged the Judge to treat the conduct charged in each of the three counts as all part of one matter for the purpose of sentence.
20.
In the case of Herbert, Mr Hurlock acknowledged on his behalf that he had been involved in the manufacture and storage of, and in dealing with, some guns, but not all those identified in the prosecution evidence. In the case of Beard, Miss Rodham suggested that he was only involved with the guns supplied to Target and that he had a lesser role in time, responsibility and function than Herbert.
21.
The Judge, in his sentencing remarks, said that, as he had already indicated, he would give them full credit for their pleas of guilty, albeit entered late, and, in doing so would take into account their respective bases of plea. However, he went on to say that that was their only mitigation. He described their criminality, although differently identified in the three counts, as part and parcel of a single course of conduct in which they were running a gun factory and selling the converted weapons through the two shopkeepers, conduct that he could appropriately deal with by concurrent sentences. In sentencing each of them to concurrent terms of six years imprisonment, he said that he could see no reason to distinguish between them as to culpability and that, but for their pleas of guilty, the sentences would have been nine years in each case.
22.
After sentence, the offender Herbert, turned to Beard and said very audibly “we got away with that”. Extensive national media coverage was given to that remark.
23.
The maximum sentence for each of the statutory conspiracies is 10 years imprisonment, by virtue of
section 1A of the Firearms Act 1968
, as amended by the Criminal Justice and Public Order Act, Sched 8, Pt III.
24.
Mr Jafferjee, in supporting the Attorney General’s reference indicated that it proceeds upon the basis that the quantity of weapons involved in the conspiracies was significantly less than that to which he had referred in his opening of the matter to the Judge. However, he submitted that, allowing for caution, the quantity involved could not realistically have been less than about 150 guns, which was less that the amounts proved to have been acquired by the offenders from Target Arms alone. He suggested that any suggestion that the quantity could have been less than that was so wholly implausible that a factual determination of it by a
Newton
inquiry (
R v Newton
77 Cr App R 13) would not have been warranted.
25.
Mr Jafferjee identified the aggravating features of the offences as: 1) the vast quantity of weapons involved; 2) the length of the conspiracies – 10 months; and 3) the offenders’ intention as part of the conspiracies to equip criminals with fully functioning firearms to put fear into others. He identified as the only mitigating feature, the offenders’ pleas of guilty. He maintained that, in the light of those aggravating features, the total sentence of six years’ imprisonment in each case failed to mark the gravity of the offences and public concern about such a vast scale of offending with firearms, and that in order properly to mark such gravity the Judge should have dealt with the matter by way of consecutive, not concurrent, sentences. He submitted that in each case the overall sentence was unduly lenient and one to which Part IV of the
Criminal Justice Act 1988
applies.
26.
In so submitting, Mr Jafferjee relied upon a number of authorities indicating the upward trend in sentencing for serious firearms offences such as these. He referred principally
R v Avis
[1998] 2 Cr App R(S) 178, in which Lord Bingham CJ (as he then was), giving the judgment of the Court, spoke of the dangers of the increasing availability of firearms to criminals to commit serious offences involving the taking of life or causing serious injury, and indicated that since the increase in maximum sentences effected by the 1994 Act, sentencers should consider higher sentences for firearms offences than had customarily previously been imposed. Giving guidance for the future, Lord Bingham stated that sentencers should usually consider four matters, namely: 1) the nature of the weapon and whether it has a lawful use; 2) the use, if any, made of it; 3) the seriousness of unlawful intent in possession of it; and 4) the defendant’s record, if any, of offences involving firearms or of violence. Lord Bingham said that if the result of those considerations are adverse to the offender the sentence should be at or approaching the maximum in a contested case.
27.
Mr Jafferjee also drew the attention of the Court to
section 51A of the Firearms Act 1968
, introduced by
section 287 of the Criminal Justice Act 2003
, which introduced minimum sentences in the absence of exceptional circumstances for certain firearms offences. Notwithstanding, as he acknowledged, that this new provision had no retrospective application to these offences, he mentioned it as a further instance of statutory encouragement of an upward trend in sentencing for firearms offences.
28.
Given all those factors, in particular the considerations indicated by Lord Bingham in
Avis,
he submitted that, in the case of each offender, the aggravating features clearly outweighed the single mitigating factor of the pleas of guilty, so as to require the sentence to be at or near the maximum of ten years. But he could not stop there, for, on the face of it, the Judge, having undertaken to give each of the offenders a “full discount” for his pleas of guilty, and having expressly indicated a starting point of 9 years, but for those pleas, had complied with the guidance of Lord Bingham in
Avis.
However, that would follow only if it was appropriate in the circumstances to impose concurrent sentences for the three counts by treating them as part and parcel of a single course of criminal conduct. Mr Jafferjee’s stance on this was, as it had been before the Judge. He submitted that there were different and mutually aggravating elements in the conduct charged in each of the counts and that, given the maximum of ten years imprisonment for each offence, the overall criminality of the enterprise could only be adequately reflected by the imposition of consecutive sentences so as to produce a longer term than six years.
29.
Mr Hurlock prefaced his response to the reference by challenging the volume of guns attributed by the prosecution to Herbert’s involvement in count 1 of the conspiracy. In doing so, he referred, not only to the generality of the prosecution evidence as to the manufacture and disposal of guns, but also to limitations in that evidence as to his direct involvement with particular guns. In this respect, he relied upon Mr Gadsden’s acknowledgement to the Judge before re-arraignment that there were certain matters of such sort that the prosecution could not gainsay. He also submitted that the Judge correctly treated the conduct the subject of the three counts - manufacture, sale and possession for the purpose of providing guns to criminals to frighten others – all as part and parcel of one criminal course of conduct, and that he was right to deal with it by way of concurrent sentences.
30.
Miss Rodham, on behalf of Beard, repeated the similar arguments that she put to the Judge and also those with particular reference to his basis of plea. She supported the Judge’s treatment for the purpose of sentence of the offences charged in the three counts as being part of one course of criminality.
31.
What should have been a comparatively straightforward sentencing exercise for the Judge was muddied from the start by his initial offer through the court clerk, and then his commitment to the offenders in the discussions with counsel before re-arraignment, to given them “full credit” for their pleas of guilty. This was a case where the prosecution evidence against both men was strong, where they had declined to answer any questions in interview and where they delayed tendering pleas of guilty until 15 months later until the first day of trial. It was plainly not a case for a full discount for pleas of guilty.
32.
The second potentially “muddying” element were the bases of pleas put forward by each defence counsel, going principally to the number of guns referable to the conspiracies individually and as a whole, and also to the part played directly by each of the offenders in relation to different parts of the process and to individual guns or consignments of guns. Notwithstanding the strength of the prosecution evidence demonstrating their involvement in each of the conspiracies overall, the prosecution evidence identifying each of the offenders in particular overt acts was - not unusually for such cases – in some respects tenuous. In such circumstances Mr Gadsden adopted the only stance that was properly open to him, namely not to agree the bases of pleas advanced by the offenders, but to indicate that in some respects he could not controvert – or, as he put it - “gainsay” them.
33.
Accordingly, as Mr Hurlock and Miss Rodham acknowledged in their submissions to this Court, it was never contended by them that the Judge was bound in any sense by the basis of pleas. Those untied ends were, therefore, left for the Judge to determine if he could, whether by way a
Newton
inquiry or otherwise. No suggestion was made by counsel to him that he should conduct such an inquiry, and he did not do so. It is plain from his sentencing remarks that he felt able to form his own view, from the abundant evidence implicating each offender, of the nature and seriousness of their respective overall responsibility for each of the conspiracies. That is not surprising given the nature of the charges to which the offenders pleaded guilty, statutory conspiracies, rather than substantive offences constituting overt acts in such conspiracies. It was no doubt with that in mind that Miss Rodham expressly stated to the Judge in the discussions before re-arraignment that the points taken in Beard’s basis of proposed plea statement were not substantial and probably would not affect his sentencing decision. In addition, the sort of matters that the offenders were advancing in their basis of plea statements fell within the third exception established by cases to the
Newton
requirement to hold such a hearing, namely they were matters that did not contradict prosecution evidence but merely sough to minimise by assertion as to detail the overall effect of it.
34.
Accordingly, the only matter left for consideration is whether, given the enormity and seriousness of this criminal conduct, charged by way of separate conspiracies to commit different forms conduct each individually capable of constituting a substantive offence under
section 5 of the Firearms Act 1968
, the overall sentences of 6 years imprisonment were unduly lenient. In some cases, the prosecution and the evidence may be confined to one only of those forms of conduct: in others, like this, they may embrace the whole chain of criminal conduct from manufacture to sale and to holding possession for future distribution to criminals. In the latter case, where, the true culpability of the persons to be sentenced can properly be marked by concurrent sentences for what could be regarded for the purpose as one course of criminal conduct, it is within the sentencer’s discretion to adopt that course. But where, as here, the seriousness and range of the individually indicted components of the criminal conduct charged as a conspiracy, looked at overall, calls for a higher sentence than that permitted for any one of them considered on its own, the sentencer should reflect that seriousness by consecutive sentences.
35.
In our view, that is what the Judge should have done here. Despite his early indications that he had provisionally in mind concurrent sentences, he gave no commitment before re-arraignment to adopt that approach, and the offenders can have had no legitimate expectation that he would impose the concurrent sentences that he did when the time came. Whatever the uncertainties at the edge of the prosecution case as to the precise numbers of guns involved and the direct involvement of each of the offenders in the various stages of the conspiracies, the plain effect of the evidence available to the prosecution was to show their involvement in a massive gun making and distribution exercise, designed to provide criminals with the means of terrifying, if not maiming or killing, their victims. The conspiracies required sentences of a very high order. In our view, the appropriate starting point for sentence for such criminality would have been a total of about 15 years’ imprisonment in each case. From that starting point there should be a reduction to 9 years after allowing for the “full discount” promised to the offenders by the Judge and a period to allow for the double jeopardy inherent in this reference. Staying loyal to the Judge’s view that the conduct charged in the three counts was, in the circumstances, all part of a single course of conduct and that there was no reason to differentiate between the two offenders, the only appropriate way of achieving that outcome is to deal with the matter in each case by way of three consecutive sentences of 3 years’ imprisonment. each reduced to that low level only on account of totality and the element of overlap between the three offences charged.
36.
Accordingly, we grant the reference and substitute for the Judge’s overall sentence of 6 years imprisonment a total sentence of 9 years imprisonment made up as we have indicated. | ```yaml
citation: '[2005] EWCA Crim 890'
date: '2005-01-18'
judges:
- LORD JUSTICE AULD
- MR JUSTICE BEATSON
- MR JUSTICE WAKEREEY
``` |
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:
[2007] EWCA Crim 538
Case Nos: 2006/4470/A1, 2006/3349A3, 2006/2539A8, 2006/3101A4, 2006/3625A6, 2006/4842 A5, R –v- S, 2006/4720/A4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
08/03/2007
Before :
LORD JUSTICE LATHAM
MR JUSTICE MITTING
And
MR JUSTICE TEARE
- - - - - - - - - - - - - - - - - - - - -
Between :
R
- and -
MICHAEL EDWIN REYNOLDS
ABDUL MUSISI LUBWAMA
JOHN PAUL WEBB
JAMES HONORE
EDWARD SLANEY
CRAIG MARK DOWNING
‘S’
AMELIO THOMPSON
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
DAVID PERRY, QC appeared on behalf of the Crown in all Cases
DAVID EVANS appeared on behalf of the Crown in REYNOLDS
ALEXIS LEWIS appeared on behalf of the Crown
WILLIAM CHAPMAN appeared on behalf of the Crown in WEBB, LUBWAMA & HONORE
SIMON HEPTONSTALL
appeared on behalf of the Applicants REYNOLDS & WEBB
ANDREW THOMPSON appeared on behalf of the applicant SLANEY
FRANCIS LAIRD appeared on behalf of the applicant DOWNING
VANESSA MARSHALL appeared on behalf of the applicant ‘S’
GRAHAM BLOWER appeared on behalf of the applicant THOMPSON
7
Hearing dates : 8th December 2006
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Latham:
1.
These eight cases have been listed together because they raise yet another facet of the difficulties sentencers face when seeking to apply the provisions of Chapter 5 Part 12 of the
Criminal Justice Act 2003
(“
the 2003 Act
”) relating to dangerous offenders. The leitmotif is the problem presented to this court in the event that the sentencing judge is mistaken as to his powers under Chapter 5 of
the 2003 Act
, or otherwise misapplies its provisions. The most significant issue of principle with which we are concerned is the effect of
section 11(3) of the Criminal Appeal Act 1968
(“
the 1968 Act
”) which sets out the powers of this court when dealing with appeals against sentence, and which restricts that power so that the court is precluded from making an order which will result in the appellant being dealt with more severely on appeal than he was in the Crown Court. They raise, in a different context, problems akin to those considered by this court in
R –v- Norman et al
[2006] EWCA Crim 1792
which concerned mistakes made by the sentencing court in crediting periods spent in custody and the appropriate mechanisms for correcting such mistakes. One of the appeals with which we are concerned,
Reynolds,
provides an opportunity to revisit the provisions of
Section 155 of the Powers of Criminal Courts (Sentencing) Act 2000
(“
the 2000 Act
”), the so called “slip-rule”, which this court has recently considered in
R –v- Gordon et al
[2007] EWCA Crim 165
.
2.
The provisions of Chapter 5 of
the 2003 Act
have now being extensively reviewed and explained in
R –v- Lang
[2006] 2 Cr App R(S) 3 and
R –v- Johnson
[2006] EWCA Crim 2486
.
They provide a mandatory sentencing framework for all offenders convicted of a “specified” offence committed on or after the 4
th
April 2005, where the court is “of the opinion” (
sections 225
and
226
of
the 2003 Act
) or “considers” (
sections 227
and
228
of
the 2003 Act
) that the defendant poses a significant risk to members of the public of serious harm occasioned by the commission by him of further “specified” offences (the criteria of dangerousness: see
section 229
of
the 2003 Act
). “Specified” offences are violent offences or sexual offences specified in
Schedule 15
to
the 2003 Act
. The substantial change to pre-existing sentencing regimes is that where the two conditions are met, namely the nature of the offence and the criteria of dangerousness, only two forms of sentence can be passed, either an indeterminate sentence, or an extended sentence.
3.
For the purposes of determining which of those is appropriate, “specified” offences punishable in the case of a person aged 18 or over by imprisonment for life or imprisonment for a determinate period of 10 years or more, are “serious” offences. Where a person aged over 18 is convicted of a “serious” offence, and the criteria of dangerousness are met, the sentence must be an indeterminate sentence, either life imprisonment, or imprisonment for public protection (
section 225
of
the 2003 Act
). If a person aged 18 or over is convicted of a “specified” offence other than a “serious” offence, and the criteria of dangerousness are met, then he must be sentenced to an extended sentence (
section 227
of
the 2003 Act
). A person under 18 convicted of a “serious” offence who meets the criteria of dangerousness and would be liable to a sentence of detention for life under
section 91
of
the 2000 Act
must be sentenced to detention for life otherwise the court has a choice between detention for public protection (
section 226(3)
of
the 2003 Act
) or an extended sentence (
section 228
of
the 2003 Act
). If a person aged under 18 is convicted of a “specified” offence other than a “serious” offence, and the criteria of dangerousness are met the court must impose an extended sentence of detention (
section 228
of
the 2003 Act
).
4.
We have not thought it necessary to set out the statutory provisions in any further detail. The important point is that these provisions create a discrete code for the sentencing of what are described by the Chapter heading as “Dangerous Offenders”. Subject to the court’s assessment of whether or not the criteria of dangerousness are met, its provisions are mandatory. They replaced provisions in
the 2000 Act
relating to violent or sexual offenders which included longer than commensurate determinate custodial sentences, extended periods of supervision on licence, and the “automatic” life sentence for a second serious offence. As will be seen, one of the common mistakes exemplified by the present appeals and applications is the imposition of extended sentences, in particular in sexual offences, rather than an indeterminate sentence where the offence is a “serious” offence. As we have explained above, the court has no discretion in the case of a person over 18 if the offence is a serious offence. It has to be an indeterminate sentence. And the same applies to those under 18 if the offence is one which would render him liable to a sentence of detention for life. Otherwise, pursuant to
section 226(3)
the court’s discretion is limited to a choice between an indeterminate sentence and an extended sentence.
5.
Before turning to the particular problems with which we have to deal in these cases, it seems to us that we should make some general comments about the difficulties facing sentencers in relation to these provisions. In doing so we are acutely conscious that we are merely reiterating what has been said before. Nonetheless it seems to us to be necessary to do so. Parliament, for good or ill, has imposed on the courts a sentencing regime with which the courts are required to comply where the offence is a “specified” offence committed on or after 4
th
April 2005. That regime requires the court to carry out a careful step by step evaluation of the sentencing consequences of the type of offence, the age of the offender and the assessment of his dangerousness. What follows is a synopsis of the way in which that exercise should be carried out.
(a)
As far as the type of offence is concerned, the first question to ask is whether or not the offence is a “specified” offence, and the second is whether it is a “serious” offence.
(b)
If it is a “specified” offence, whether “serious” or not, the court
must
determine whether the defendant meets the criteria of dangerousness. In doing so the judge will be guided by the decisions of this court in
Lang
(supra), and
Johnson
(supra).
(c)
If the criteria of dangerousness are met and the defendant is aged 18 or over,
(i)
where the offence is a “serious” offence, he
must
be sentenced to an indeterminate sentence under
section 225
of
the 2003 Act
,
(ii)
otherwise he
must
be sentenced to an extended sentence under
section 227
of
the 2003 Act
.
(d)
If the criteria of dangerousness are met, and the offender is under 18:
(i)
If the offence is a “serious” offence and an offence to which he would be liable to a sentence of detention for life under
section 91
of
the 2000 Act
, and it justifies (together with any associated offence) detention for life; he
must
be sentenced to detention for life;
(ii)
if the court considers in such a case that such a sentence is not justified, and, pursuant to
section 226(3)
of
the 2003 Act
, it considers that an extended sentence under
section 228
of
the 2003 Act
would be inadequate to protect the public, it
must
impose detention for public protection;
(iii)
in any other case the defendant
must
be sentenced to an extended sentence under
section 227
of
the 2003 Act
.
(e)
By virtue of
sections 227
and
228
of
the 2003 Act
a court
must
impose an extended sentence on a defendant who meets the criteria of dangerousness if he has been convicted of a “specified” but not “serious” offence, even if he has been convicted at the same time of an offence carrying an indeterminate sentence, and has been sentenced accordingly.
6.
The problems to which we referred in paragraph 1 are that sentencers, not surprisingly given the complexity of the legislation, are making mistakes as to their obligations under Chapter 5. As we have said, a common mistake is the failure to appreciate that a “specified” offence is a “serious” offence. As we have said, that is particularly so in sexual offences. It may well be that this is, in part, because courts had become familiar with imposing extended sentences under
the 2000 Act
, particularly in sexual offences. And extended sentences are often recommended in pre-sentence reports in cases where the ultimate conviction may well be of a “serious” offence. The fact that so many mistakes are still being made means that we must reinforce what this court has said time and time again, and the Lord Chief Justice has recently underlined in
R –v- Cain
[2006] EWCA Crim 3233
about the duty of both prosecuting and defence counsel to ensure that they are fully aware themselves of the potential impact of Chapter 5 of
the 2003 Act
on their case, are prepared to assist the judge in that respect, and are alert to any mistakes that the judge makes in passing sentence, so that any problem can be resolved before it is too late. We understand that the Attorney General is reconsidering his Guidelines on the Acceptance of Pleas and the Prosecution’s Role in the Sentencing Exercise originally issued in October 2005. We would welcome any reinforcement he considers appropriate. We would urge NOMS to do whatever it can to draw to the attention of those preparing pre-sentence reports that they must be careful about the distinction between offences which are merely “specified”, and those that are both “specified” and “serious” and the implications that has for sentencing. As far as judges themselves are concerned, we would recommend that they have the Statute itself available so that its provisions can be readily referred to.
What happens if things go wrong?
7.
Provided any mistake is identified quickly enough, the court can exercise its power under
section 155(1)
of
the 2000 Act
to vary the sentence within the period of 28 days beginning on the day on which the sentence or other order was imposed. There is no doubt that this power can be exercised to reduce or increase the sentence: see
R –v- Hart
(1983) 5 Cr App R (S) 25,
Commissioners of Customs and Excise –v- Menocal
[1980] AC 598
, and
R –v- Hadley
(1993) 16 Cr App R(S) 358. However, this court has made it clear that the power to increase the sentence should be exercised with care: see
R –v- Woop
[2002] 2 Cr App R (S) 65. But in our view, the power to increase the sentence would be properly exercised if the mistake was that the Court had failed to appreciate for example that the “specified” offence was a “serious” offence, so that the mandatory provisions of Section 225 or 227 required an indeterminate sentence as opposed to an extended sentence. Equally the power could be exercised where the mistake was a failure to recognise the offence as a “specified” offence, as a result of which an ordinary determinate sentence or other disposal has been imposed. Whatever inhibition there may be on increasing sentences cannot apply if the court is merely seeking to comply with its statutory obligations.
8.
There may, however, be cases in which the mistake has been identified within the 28 day period, but, for whatever reason, the court is either unable to deal with the matter by way of variation of sentence within 28 days or considers that sentencing should be delayed beyond the 28 day period. That situation arose in the case of
Reynolds
which is one of the cases with which we are concerned, and to which we will return in detail later. In that case the relevant mistake having been identified, and the matter brought back before the judge within the 28 day period, the judge acceded to a submission from defence counsel that the matter should be adjourned to enable the appellant to put before the court more material in order to try to persuade the court that he did not meet the criteria of dangerousness. Accordingly the judge exercised his power under
section 155
of
the 2000 Act
to rescind the original sentence, and then adjourned the sentencing hearing to a later date.
9.
In
R –v- Stillwell and Jewell
(1992) 94 Cr App R 65
, this court was faced with a very similar situation. Both appellants were originally sentenced to imprisonment. The judge later reconsidered the case and decided that he should have had social inquiry reports before passing sentence. The appellants were then brought back before the court within the 28 day period. The judge rescinded the sentences, and adjourned the matter for the preparation of social inquiry reports, remanding the appellants in custody. They were brought back before him after the expiry of the 28 day period, and sentenced to the same sentences that he had originally imposed. This court held that he had no jurisdiction to do so. Having considered the historical genesis of section 47(2) of the Supreme Court Act 1981 (the predecessor to
section 155
of
the 2000 Act
) as described by Lord Edmund Davies in
Menocal
(supra), Morland J, giving the judgment of the court said at page 70:
“The 28 day period is not elastic. It cannot be extended by rescinding a sentence and then remanding the prisoner for sentence to a date beyond the 28 day period..... This court therefore quashes those sentences and orders the immediate release of the appellants. The convictions stand, but we make no further order with regard to sentence, the course adopted by this court in
Bradford
(1911) 7 Cr App R 42
,
Brook
(19493) 33 Cr App 92 and
Chapman
(April 5, 1990 - unreported).”
10.
The uncomfortable consequence of this decision is that appellants in such a case have been convicted but not sentenced and are apparently entitled to be released. The authorities given for taking that course do not seem to be directly in point. In those cases this court quashed sentences, and made no further order, because in each case the appellant had already served an appropriate sentence by the time that this court came to deal with the appeals. If that principle were applied to cases involving dangerous offenders, the consequences would be unfortunate, and clearly contrary to Parliament’s intention.
11.
One solution in such a case might be to recharge the offender. Because he has not been punished, he cannot plead autrefois convict: see
Richards –v- R
[1993] AC 217
. But that would be a cumbersome way to put right what could be considered a mere technicality, if the ultimate sentence is otherwise a perfectly good sentence. Like this court in
Gordon
(supra) we have been encouraged to look again at the provisions of
section 155
of
the 2000 Act
by the commentary on
Norman
(supra) by Dr David Thomas Q.C. in the Criminal Law Review for December 2006 at page 1073. We respectfully agree with the analysis of this issue contained in paragraphs 41 off of the judgment in
Gordon.
We accordingly do not consider that a solution can be found in the decision of the House of Lords in
Soneji and Bullen
[2006] 1Cr App R (S) 79
. Like this court in
Gordon
we consider that the problem should be approached in the light of the decision in
Annesley
[1975] 62 Cr App R 113
, in which the jurisdiction of the Crown Court to adjourn sentence was considered.
12.
In
Stillwell and Jewell
(supra) this court felt constrained by the speeches in
Menocal
(supra) and in particular the opinions expressed by Lord Salmon at page 162 and Lord Edmund Davies at page 167. Lord Edmund Davies explained how the 28 day provision had its origin in the
Courts Act 1971
which created the Crown Court as a superior court of record. The 28 day period was intended to replace the original power at Assizes or Quarter Sessions for the Court to vary any sentence imposed at any time prior to the end of the Assize or Quarter Session. This was on the recommendation of the Royal Commission on Assizes and Quarter Sessions. It was clearly intended to ensure that a time limit of some sort should be imposed on the exercise of the power in order to achieve certainty. In
Annesley
(supra) it was argued that the
Courts Act 1971
provided a complete code in relation to the powers of the court. The question in issue was whether or not the court had any power to adjourn or otherwise defer part of a sentence other than in accordance with the express provisions of the Courts Act. Bristow J, giving the judgment of the courts said as follows at page 115:
“In the judgment of this court it is clear from these authorities and the statutory provisions that the Crown Court still enjoys the common law jurisdiction vested in its predecessors to put off passing the whole of a sentence or indeed part of a sentence, if the circumstances make it necessary.”
13.
A fuller reference to this passage is contained in paragraph 45 of the judgment in
Gordon
(supra); but this extract is sufficient for our purposes. Its relevance is that in
Stillwell and Jewell
(supra) the court, when considering the meaning of the word “rescind” in
section 155
of
the 2000 Act
, said at page 67:
“There is no meaningful distinction in fact or in law between rescinding, quashing, and annulling a sentence.”
14.
If that is the meaning to be given to the word “rescind”, which in our judgment it is, the consequence of rescinding a sentence is that the convicted offender is, as a result of the quashing of his sentence, back before the court as a convicted but unsentenced defendant. It seems to us to follow that the court is then in the same position as it was at the time that the original sentence was imposed. It, accordingly, has all the powers it had at that time. It is difficult, therefore, to see why the court should not have jurisdiction, in accordance with
Annesley,
to adjourn sentence, having quashed the original sentence, if the justice of the case so requires.
Annesley
was not brought to the attention of the court in
Stillwell and Jewell
. And indeed, the court was there not strictly concerned, in practical terms, with the consequences of the view it then took. Quashing the sentences in that case produced no consequence which could be said to have been contrary to public policy.
15.
We have come to the conclusion that for those reasons we can, and should, revisit the question of whether or not the court is entitled in pursuance of
section 155
of
the 2000 Act
, to exercise the power to rescind and then exercise its common law power to adjourn. The consequential adjournment no more offends against the principle of certainty than a decision of the Crown Court to adjourn in the first instance. Clearly, as a matter of good sentencing practice, the defendant is entitled to know his sentence as soon as possible. But there may be many situations in which it would be in the defendant’s own interest for there to be an adjournment. In our judgment, therefore, the Crown Court has power, after rescinding all a part of its original order to adjourn final sentence to a later date. We would, in any event, support the suggestion in
Gordon
that the period specified in
section 155
be extended.
16.
If the court has not exercised its power under
section 155
of
the 2000 Act
, more difficult problems may arise. If the court has, by mistake, imposed an indeterminate sentence for a “specified” but not a “serious” offence, then the matter can clearly be put right on appeal. And if a judge concludes that an offender meets the criteria of dangerousness, but has in any other way either misunderstood or misapplied that consequence to the offender’s disadvantage, again the matter can be put right on appeal. Likewise, if the Attorney General seeks a reference to this court under
section 36 of the Criminal Justice Act 1988
, (
the 1988 Act
) this court will have the power to put right any mistake.
17.
But where a mistake has been made which is to the benefit of the offender, the Attorney General will not always be able to refer the sentence to this court. The mistake may go unnoticed by the prosecution. And the function of
section 36
of
the 1988 Act
is not to provide a general right of appeal to the prosecution. It is a means of ensuring by judicious selection of cases, that issues of principle in relation to sentencing can be resolved, and sentences corrected, in cases where public confidence in sentencing could otherwise be undermined. It is where the error in favour of the offender emerges as a result of an appeal by an offender, that the real difficulties arise, as exemplified in some of the present cases. If it becomes apparent during the course of an appeal that the sentencing court has failed to appreciate, for whatever reason, that either a mandatory sentence should have been imposed, or alternatively an indeterminate sentence should have been imposed as opposed to an extended sentence, what should this court do?
18.
In one sense, the sentence is an “unlawful” sentence which this court would normally feel obliged to correct. But in the two scenarios to which we have just referred, the necessary consequence would be to increase an ordinary determinate sentence to an extended sentence or an extended sentence to an indeterminate sentence. The powers of this court are constrained by the provisions of
section 11(3)
of
the 1968 Act
which is in the following terms:
“On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may –
(a)
quash any sentence or order which is the subject of the appeal, and
(b)
in place of it pass such sentence or make such order as they think appropriate for the case and as the court below had the power to pass or make when dealing with him for the offence.
But the court shall so exercise their powers under this sub-section that, taking the case as a while, the appellant is not more severely dealt with on appeal that he was dealt with in the court below.”
19.
It is common ground before us, and in particular it is accepted by counsel instructed on behalf of the respondent, Mr Perry QC, to whom we are immensely grateful, that the imposition of a mandatory extended sentence by this court where the sentencing court had imposed a determinate sentence, or the imposition of an indeterminate sentence where the court had imposed either a determinate sentence or an extended sentence, would almost invariably mean that the appellant was being dealt with more severely than he had been by the sentencing court. In 1968 there was, in effect, only one mandatory sentence, namely life imprisonment for murder. Since then, mandatory sentences have proliferated. The statutory cap on the powers of this court in
section 11(3)
of
the 1968 Act
sits uneasily with these changes.
20.
In most cases, of course, those who do not receive the mandatory sentence are unlikely to appeal; and if they do appeal, they usually find out the problem in time to abandon their appeals. But in the case of offences to which Chapter 5 applies, there are many appellants whose appeals are essentially based on a challenge to the judge’s conclusion as to whether or not the criteria of dangerousness have been met. In other words they are seeking to avoid being caught by the provisions of Chapter 5 at all. If an appellant appeals on this basis against an extended sentence which is wrongly imposed for a “serious” offence, is the court bound by reason of the mandatory provisions of
section 225
or
226
of
the 2003 Act
to impose an indeterminate sentence, or is the court precluded from doing so because to do so would be beyond the powers of the court under
section 11(3)
of
the 1968 Act
? We have come firmly to the conclusion that
section 11(3)
of
the 1968 Act
prevails. This court is a court created by statute, and only has the powers given to it by the statute. The only express powers that this court has to increase sentences are the power contained in
section 36
of
the 1988 Act
and the limited power in
section 29
of
the 1968 Act
to give directions as to the loss of time. Otherwise the court is, as we have said, constrained by
section 11(3)
.
21.
Mr Perry, in seeking to help this court, submitted that the wording of
section 11(3)
suggests that the cap could only apply to discretionary sentences. A sentence which is an “unlawful” sentence, in that the court has failed to comply with its duty to impose the mandatory sentence, is a sentence which must be quashed, in which event this court is bound to impose the “appropriate” sentence, namely the mandatory sentence.
22.
The difficulty with that argument is that, as we have indicated, the only power that the court has to interfere with the sentence is the power contained in
section 11(3)
(subject to the two exceptions to which we have already referred) and that section requires us to apply the cap. Further, it seems to us that the justification for the application of the cap to appeals against sentence generally is equally applicable to appeals against sentence involving consideration of the mandatory sentence provisions of any statute.
The 1968 Act
was preceded by the Criminal Appeals Act 1966. This repealed the power given by the
Criminal Appeal Act 1907
, its predecessor, to this court to increase sentences. The major justification for this change was that it was considered that the power to increase sentences was a significant deterrent to defendants who wished to challenge their sentence. As we have said, in the present context many appeals are essentially based upon the argument that the judge was wrong to conclude that the appellant met the criteria of dangerousness. If the consequence of seeking to persuade the court of that, is to risk an increase in sentence from an extended sentence, say, to an indeterminate sentence, the very mischief which
the 1968 Act
was intended to avoid would be reintroduced by a side wind in this category of case.
23.
For these reasons, we are satisfied that
section 11(3)
of
the 1968 Act
precludes this court from interfering with any sentence, even if the provisions of Chapter 5 mandate a different, ex-hypothesi more severe, sentence. Although this means that there will be sentences which will be “unlawful” in the sense that the court has failed to apply the mandatory sentence, that does not seem to us to create difficulty or absurdity. If the sentence in question had not been appealed, the sentence would have been a perfectly valid and effective sentence. As Lord Scarman explained in
R –v- Cain
[1985] 1AC 46
, at page 55, a sentence of a Crown Court cannot be a nullity. It remains an effective order unless and until varied or quashed. An extended sentence, for example, passed when there should have been an indeterminate sentence, therefore remains a perfectly valid and effective sentence. Further, unlike, for example, a detention and training order for three years, which is beyond the powers of the court, an extended sentence is within the powers of the court. In that sense, also, it is not an “unlawful” sentence.
24.
It seems to us that in those circumstances, where the judge has properly concluded that the criteria of dangerousness have been met, this court should respect that finding so far as it can. As it is, in our view, unable to substitute the mandatory sentence where the Crown Court has failed to impose it, this court in the exercise of its discretion, should not interfere with the sentence in fact imposed, even though that results in a sentence which is not in accordance with Chapter 5. The only other solution would be to quash the finding that the criteria of dangerousness have been met and substitute a determinate sentence. We consider that to be a solution which would not properly reflect the intention of Parliament or respect the findings of the judge.
25.
We turn therefore to the individual cases.
Reynolds
26.
On the 21
st
February 2006 at the Crown Court at Exeter, the appellant pleaded guilty to five counts of possession of indecent photographs of children, six counts of making indecent photographs of a child, two counts of inciting another to distribute or show indecent photographs, and two counts of attempting to cause a child to watch a sexual act. On the 8
th
May 2006 he was sentenced as follows:
a.
For possession of indecent photographs of a child, no separate penalty.
b.
For making indecent photographs of a child an extended sentence of five years made up of a custodial term of one year imprisonment and an extension period of 4 years on each to be served concurrently and concurrent to all other sentences.
c.
On the two counts of inciting another to distribute or show indecent photographs an extended sentence of seven years made up of a custodial term of 3 years and an extension period of 4 years, to be served concurrently and concurrent to all other sentences.
d.
For attempting to cause a child to watch a sexual act an extended sentence of seven years made up of a custodial term of three years and an extension period of 4 years to be served concurrently and concurrent to all other sentences.
The total sentence was therefore an extended sentence of 7 years.
27.
A Sexual Offences Prevention Order under
section 104 of the Sexual Offences Act 2003
was made; and the defendant was required to comply with the provisions of
Part 2
of that Act indefinitely.
28.
The terms of the Sexual Offences Prevention Order were finally clarified on the 16
th
May 2006 and included in particular the following prohibitions:
“.......
4.
Entering or remaining upon any “cyber cafe”/library/other premises offering internet facilities.
.....
9.
Denying police officers access to his home address during visits by dangerous offenders at reasonable times of the day in order to check the above conditions are being complied with”
29.
On the 17
th
May 2006 the judge was made aware of the fact that all the offences to which the appellant had pleaded guilty other than the offences of possessing indecent photographs (the first five counts in the indictment) which were “specified” offences, were “serious” offences for the purposes of
Part 5
of
the 2003 Act
. Having found that the criteria of dangerousness were met, the judge appreciated that he was required under
section 225
of
the 2003 Act
to impose an indefinite sentence on the appellant. Counsel for the appellant then sought to persuade the judge that he could revisit the finding that the criteria of dangerousness were met or at least to adjourn the matter so that he could obtain material on behalf of the appellant to persuade the judge that the criteria had not been met. The judge then rescinded the sentences that he had imposed on the 8
th
May, and adjourned the matter for further argument as requested on behalf of the appellant.
30.
At the resumed hearing on the 30
th
June 2006, having heard counsel for the appellant and read the further material produced on his behalf, the judge concluded that the criteria of dangerousness were met, and sentenced him to imprisonment for public protection. The specified period was 18 months less the 45 days spent on remand; the Sexual Offences Prevention Order was reimposed as was the requirement to comply with the provisions of the
Part 2
of the Sexual Offences Act 1973 and he was further disqualified from working with children under
section 28 of the Criminal Justice and Court Services Act 2000
. This sentence was made up of concurrent sentences of imprisonment for public protection with a specified period of 18 months for the two offences of inciting another to distribute or show indecent photographs and the two offences of attempting to cause a child to watch a sexual act. Concurrent sentences of imprisonment for public protection with a specified period of six months were imposed for the six counts of making an indecent photograph of a child. No separate penalty was imposed in relation to the five counts of possessing indecent photographs of a child.
31.
The grounds of appeal were directed essentially at the making of the orders under Chapter 5 of
the 2003 Act
. It was submitted that where a Sexual Offences Prevention Order had been made, consideration should be given to the question of whether that would not be sufficient to enable the court to say that on release, the appellant would not meet the criteria of dangerousness. The Order would provide sufficient controls. Alternatively, it was submitted that such an order should not have been made in addition to the Licence provisions which would apply on his release from custody was a sentence of imprisonment for public protection imposed. In any event, it has been submitted to us that the two specific terms of the Order to which we have referred were too widely drawn.
32.
The facts in the light of which the judge had to consider sentence can be relatively shortly stated. On the 15
th
November 2005 police executed a warrant at the appellant’s address. Computer equipment and other items were seized. These disclosed 1,757 still photographs and eight movies at level 1; 1404 stills and 46 movies at level 2; 54 stills and 2 movies at level 3; 22 stills and one movie at level 4; and 7 stills at level 5. It became apparent that for some considerable time the appellant had been taking part in computer chat rooms passing himself off inter alia as a 16 year old boy. He was attempting to get young girls to bare their bodies and send photographs to him over the internet. On a number of occasions he sent pictures of his erect or semi-erect penis to those girls. Although in his first interview, he made no comment on the advice of his solicitor, at his second interview, he was fully cooperative.
33.
As we have said in our general introduction, we consider that the judge was entitled to exercise his powers under
section 155
of
the 2000 Act
to rescind the original sentences, and adjourn the matter as he did. Turning then to the main ground of appeal, it must be remembered, as this court has explained in
Richards
[2006] EWCA Crim 2519
, the two schemes for the protection of the public created by the
Sexual Offences Act 2003
and Part 12 Chapter 5 of the
Criminal Justice Act 2003
are distinct. That does not mean that they cannot impact on each other. They clearly can; and it may well be relevant in many cases for a judge to evaluate the best method of protecting the public whilst ensuring that no greater restrictions than are necessary are imposed on a defendant. It may well be possible to argue in some cases that the defendant is a person who is likely to abide by the restrictions imposed by a Sex Offenders Protection Order so that he would not pose a significant risk to members of the public of serious harm occasioned by the commission by him of further such offences. Equally, a court could come to the conclusion that the control exercised by the licence requirements after release were an indeterminate sentence to be imposed would be sufficient to prevent the defendant from posing a risk of causing sexual harm. But that does not mean that the court is precluded from imposing both an indeterminate sentence and a Sex Offenders Protection Order if the circumstances justify it.
34.
In the present case, this appellant has previous convictions of a sexual nature, in particular a conviction of five counts of taking indecent photographs of children in February 2000 for which he was fined and placed on the Sex Offenders Register for five years, and a caution for an offence of indecent exposure when he was caught masturbating in a shop whilst watching children. In these circumstances, and in the light of the real concerns expressed in the pre-sentence report, we do not consider that the judge can properly be criticised for concluding that a detailed Sex Offenders Protection Order was required, in addition to licence, to protect the public.
35.
Turning to the Order itself, there seems to us to be little criticism that can be made of clause 9; but clause 4 is accepted by the respondent to be too widely drafted. The term should read:
“Accessing the internet in any cyber café/library/other premises offering internet facilities to visitors/members of the public.”
36.
There is, however, one respect in which the sentence imposed by the judge fails to comply with the provisions of
the 2003 Act
. As we have said in the general introduction, a court is required by the mandatory provisions of, in this case,
section 227
of
the 2003 Act
, to impose an extended sentence in respect of the “specified” offences in the first five counts in the indictment. We can correct that without infringing
section 11(3)
of
the 1968 Act
, by imposing extended sentences of 2 years imprisonment in respect of each concurrent, comprising a custodial term of 12 months and an extension period of 12 months.
37.
We accordingly allow the appeal to the extent of the amendment to the Sexual Offences Protection Order which we have referred to in paragraph 28 above and we order that the extended sentences of two years imprisonment should be substituted for no separate penalty in Counts 1 to 5 in the indictment.
Lubwama
38.
On the 12
th
May 2006 in the Crown Court at Southwark Abdul Lubwama pleaded guilty to one count of assault occasioning actual bodily harm and a second count alleging cruelty to a person under 16 years of age. On 16
th
June 2006 he was sentenced on count 2, to an extended sentence of 7 years made up of a custodial term of 2 years and an extended period of licence of 5 years, and, on Count 1, to 12 months’ imprisonment concurrent. He appeals with leave of the full Court against his sentence.
39.
The facts regarding the offences were as follows. At about 7.00 pm on the 14
th
October 2005 the appellant went to the home address of Lydia Baah to pick up his children, Ella, aged 4, and Amira, aged 1. Lydia Baah had been baby sitting and told the appellant that Ella was playing outside. He left with Amira to collect Ella. A few minutes later Ella banged on the front door screaming “My dad is going to kill me”. The appellant was seen to walk up behind Ella and hit her across the back with what appeared to be the branch of a tree. The door was open and Ella ran inside. She tried to hide behind Lydia Baah’s legs; but the applicant grabbed her and whipped her with the branch. Lydia Baah shouted at the appellant to stop; but he replied “She is my daughter”. A daughter of Lydia Baah pulled at the appellant to get him away from Ella causing Ella to fall to the floor. The appellant was seen to kick Ella a number of times (though this was not accepted by the appellant in his basis of plea) The police were called and the applicant dragged Ella outside by her hair towards his car. Lydia Baah and her daughter were able to stop him from taking Ella away.
40.
In hospital Ella was treated for multiple red wheals over her arms, head and back. She had bruises near her left elbow and a series of lesions over her forehead.
41.
The judge considered the provisions of the
Criminal Justice Act 2003
. Whilst he appeared in one part of his judgment to conclude that there was no significant risk to members of the public of serious harm occasioned by the commission of further specified offences, in another part of his judgment he concluded that the appellant posed a “significant risk and danger to your daughter” and sentenced him to an extended sentence in respect of count 2.
42.
For the reasons we have explained, if the judge was thereby holding that the criteria of dangerousness has been met, an extended sentence was not in accordance with the requirements of Chapter 5 since count 2, cruelty to a person under 16, is a “serious” offence within the meaning of
section 224 of the CJA
2003. But we do not consider that his findings in this respect are consistent. He appears to have concluded that the appellant met the criteria for the purposes of
section 227
of
the 2003 Act
, but not for the purposes of
section 225
of
the 2003 Act
. That is not permissible. The criteria do not depend on the nature of the particular count of which the defendant is guilty. They are either met or they are not met. We cannot be sure therefore that his conclusion was soundly based. And on the material before us, we do not consider that we ourselves can be satisfied that the criteria are met. In those circumstances we propose to quash the judge’s findings as to dangerousness and substitute a determinate sentence.
43.
It has been submitted that a determinate sentence of 2 years on count 2 was excessive and that a sentence of 12 months would have been appropriate. The appellant is aged 39 and had no previous convictions. He pleaded guilty, accepting that what he did went far beyond lawful chastisement. In this regard we were referred to the following cases,
Kelly
[1998] 2 Cr App R (S) 368,
O’Gorman
1999 2 Cr App R (S) 280 and
Sujan Ali
[2002]
2 Cr App R (S) 542. From these cases it appears that a sentencing bracket of 12 months to 2 years is appropriate for cases of this type. It follows that the 2 years “custodial term” suggested by the judge was at the top end of the appropriate bracket but cannot therefore be said to be excessive.
44.
For these reasons we allow the appeal. The extended sentence on count 2 is quashed and we substituted a sentence of two years imprisonment. The sentence of 12 months concurrent on count 1 remains.
Webb
45.
On the 5
th
September 2005 in the Crown Court at Luton John Paul Webb pleaded guilty to attempted robbery, count 1, and possession of an imitation firearm at the time of committing a scheduled offence, count 2. On the 3
rd
October 2005 he was sentenced (on each count concurrent) to an extended sentence of 13 years made up of a custodial period of 5 years and an extended licence period of 8 years. Having committed these offences before the expiry of an earlier custodial sentence he was ordered to be returned to prison to serve the remaining period of 1 year and 28 days. The extended sentence was to be served consecutively to that. 95 days spent on remand was ordered to count towards his sentence. His application was referred to the full court by the registrar.
46.
The facts regarding the offences were as follows. At about 13.45 on the 30
th
June 2005 the applicant was seen acting suspiciously in Bedford town centre. He removed two toy handguns from their packaging, concealed one on his person and placed the other in a nearby dustbin. He then went to the O2 mobile telephone store in which there were three members of staff and three customers. The applicant said to the manager “Give me the money”. When the manager refused the applicant said: “I have a gun in my pocket, give me the money”. He then produced the imitation handgun and held it in front of him with both hands. The manager pressed the panic alarm and the applicant left the store, holding the imitation handgun out in front of him so that it was clearly visible. He was arrested shortly afterwards.
47.
The judge considered that there was a significant risk to members of the public of serious harm occasioned by the commission of further specified offence. He did not consider that a sentence of life imprisonment was justified but proceeded to pass an extended sentence on each count of “4 years imprisonment ... a term of 12 months’ imprisonment on top of that” and ordered that the applicant be “on licence for a period of 8 years.” The recorded sentence is an extended sentence of thirteen years being a custodial period of 5 years plus the extension period of 8 years.
48.
An extended sentence was not in accordance with the requirements of Chapter 5, since the offences to which he had pleaded guilty were “serious” offences within the meaning of
section 224 of the CJA
2003. But by reason of the terms of
section 11(3) of the Criminal Appeal Act 1968
and for the reasons we have explained, this court has no power to impose a sentence of imprisonment for public protection which was, on the judge’s apparent findings, the mandatory sentence. We do not therefore interfere with the imposition of the extended sentence save that the extension period cannot stand. By
section 227(4)(a)
of
the 2003 Act
, the maximum extension period for a specified violent offence is 5 years. Turning to the length of the custodial period, on behalf of the applicant it was accepted that a determinate sentence of 4 years, the first period of imprisonment mentioned by the judge, could not be said to be excessive. We agree. However, the judge plainly had in mind a custodial sentence of 5 years, made up of 4 years plus 1 year and the order so records. In our judgment a custodial period of 5 years cannot be said to be excessive for each of these offences on a plea of guilty.
49.
For these reasons we extend the time for seeking leave to appeal, we grant leave to appeal and we allow the appeal, to the extent only that the extension period is reduced to a concurrent period of 5 years, so that the sentences are extended sentences of 10 years on each count, concurrent, comprising a custodial term of 5 years, and an extension period of 5 years.
Honore
50.
On the 9
th
January 2006 in the Crown Court at Chelmsford James Honore pleaded guilty to robbery. On the 24
th
April 2006 in the Crown Court at Southwark he pleaded guilty to assault occasioning actual bodily harm. On the 25
th
May 2006 he was sentenced to 12 months in custody on the assault and 2 years’ imprisonment, consecutive, on the robbery charge. In addition the judge imposed an extended licence period of 2 years’ pursuant to
section 227 of the CJA
2003. 219 days spent on remand were to be counted towards his sentence. He has applied for leave to appeal against his sentence and his application has been referred to the full court by the registrar.
51.
The facts regarding the offence of assault are as follows. On the 20
th
August 2005 the applicant assaulted his girlfriend, Marlene Herbert, by grabbing her around the throat and banging her head against the kitchen cabinets several times. He also hit her with a bottle and a belt. The victim sustained bruising around both eyes which were closed with swelling. She also received bruising behind her left ear and on her chest, arms, left shoulder, lower back and right thigh.
52.
The robbery occurred on the evening of the 17
th
October 2005. The victim, John Baker, was cycling home when he was stopped by the applicant who demanded that he get off his bicycle. The applicant then hit the victim on his head and threatened to shoot him unless he handed over his bicycle. The victim was wearing a helmet and so was not injured but was placed in fear by the applicant and allowed the applicant to take his bicycle.
53.
The applicant is aged 35 and has previous convictions. However, the previous conviction for violence was an assault in 1997 for which he was sentenced to 3 months’ imprisonment. Before that there were 6 offences between 1988 and 1992, none of which was for violence though one (in 1988) was for possessing an offensive weapon in public.
54.
The judge considered that because of problems that the applicant was having with drugs there was “a significant risk of continuing harm ... of serious injury to people” and so a “sentence for public protection is necessary”. The judge then proceeded to pass the sentences which we have described.
55.
In the light of these findings and for the reasons which we have given, an extended sentence was not the correct sentence for robbery, which is a “serious” offence within the meaning of
section 224 of the CJA
2003, for which an indeterminate sentence was mandatory.
56.
It may be that the judge took the merciful view that the facts which gave rise to the assault charge, together with his drugs problem, were the real cause for concern for the future, rather than the robbery charge. But once the judge had answered affirmatively the question of whether the appellant met the criteria of dangerousness, for whatever reason, the mandatory provisions of
section 225
of the 203 Act applied. And he was entitled to conclude that the criteria were met.
57.
For the reasons we have given, we cannot increase the sentence. But the sentence in the present form is unclear as to how the extension period is calculated. The custodial periods have been expressed to run consecutively. The extension period has not been specified or attached to either. The judge’s intention would appear to have been a total sentence of 5 years, 3 years being the custodial term, and two years the extension period. That sentence is not manifestly excessive. It can be accommodated best by adjusting the sentences so that the sentence for assault is an extended sentence of 2 years, with a custodial period of one year and an extension period of one year; and the sentence for robbery will be an extended sentence for of 3 years, comprising a custodial sentence of 2 years and an extended period of one year, those to be served consecutively. The application is granted; and the appeal allowed, but only to that extent. This is a case in which consecutive sentences were clearly called for. For reasons which will be set out fully in a decision of this Court to be handed down shortly (
“C” et al
) such a sentence is not wrong in principle, nor impracticable to operate. The fact that we are restrained to amend the sentence as we have is the inevitable consequence of the constraints imposed by
section 11(3)
.
Slaney
58.
On the 26
th
May 2006 at Northeast Sussex Court the appellant pleaded guilty to 6 offences of sexual touching of a child family member contrary to
section 25 of the Sexual Offences Act 2003
. He was committed for sentence to the Crown Court at Ipswich and on the 27
th
June 2006 was sentenced by HHJ Holt to two concurrent extended sentences of five and a half years made up of a custodial term of 2½ years and an extension period of three years. In addition, an indefinite Sexual Prevention Order was made and he was disqualified from working with children for life. He was subject to the notification requirements of
Part 2
of
the 2003 Act
indefinitely. The only element of the sentence that is challenged is the three year extension period.
59.
The facts can be shortly stated. The victim of each offence was a 15 year old girl who had been placed with the appellant and his wife as a foster parent. She had learning difficulties and functioned at the level of a child of seven or eight. When she was alone with the appellant in the swimming pool, he had touched her vagina and chest on more than one occasion. On a separate occasion he had taken her to the spare room of the house and laid on top of her with his penis exposed and simulated sexual intercourse until he ejaculated on her stomach. When arrested and interviewed, he eventually accepted that he had done what was alleged. He admitted that his actions were for his own sexual gratification.
60.
The appellant was 67 years of age, and of previous good character. The judge made no finding that there was a significant risk to members of the public of serious harm occasioned by the commission of him of further specified offences. Accordingly, the judge had no power to impose any sentence other than a determinate sentence. Had he found that the appellant did meet the criteria of dangerousness he would have been required to impose an indeterminate sentence under
section 225
, as the offences to which he pleaded guilty carry a maximum sentence of 14 years imprisonment and were accordingly “serious” offences. No criticism is made of the two and a half years determinate term imposed by the judge but for the reasons that we have given, the appeal must be allowed and the extension period quashed.
Downing
61.
On the 1
st
September 2006 at the Crown Court at Northampton, the appellant pleaded guilty to two counts of sexual activity with a child contrary to
Section 9
of the Sexual Offences 2003. He was sentenced by HHJ Wide, QC to an extended sentence of 7 years imprisonment, made up of a custodial term of 4 years and an extension period of three years concurrent. He was disqualified from working with children and was subject to the notification requirements of
Part 2
of the Act indefinitely.
62.
The victim was a vulnerable 13 year old. She had been the victim of abuse, some of it sexual, since the age of four at the hands of others. The appellant was a 33 year old man with an extensive criminal record, though without previous convictions for sexual offences. On the 20
th
June 2005 he was released from prison. By prior arrangement, he went to stay at the home of the victim and her mother. On the 22
nd
June at about half past midnight he asked the victim if she wanted to have sex with him; she agreed. The appellant went into her room and woke her up. He took off her trousers and penetrated her with his penis. She consented, but was concerned that she might become pregnant. Two days later, once again in the early hours of the morning, he woke her and suggested and attempted sexual intercourse with her. He did not succeed in penetrating her on this occasion because she was too tense.
63.
In July, the victim admitted to her mother what had occurred. She was interviewed by the police on the 13
th
July. The appellant was arrested on the same day and denied the offences. Subsequently scientific analysis of semen found on the victims underwear revealed a DNA profile matching that of the appellant. He pleaded not guilty on arraignment but changed his plea to guilty on the day on which he was sentenced. The judge discounted the custodial sentence he would have imposed after trial by 20% to reflect that fact. No criticism is made of the discount.
64.
The author of the pre-sentence report assessed the future risk of serious and significant harm to pre-pubescent and young females as high. The judge accepted this conclusion and expressly found that the criteria of dangerousness had been met. The offences to which he had pleaded guilty were offences for which the maximum sentence on conviction on indictment is 14 years imprisonment. Accordingly it is a “serious” offence. The judge therefore should have imposed an indeterminate sentence of imprisonment pursuant to
section 225
of
the 2003 Act
. But, for the reasons that we have already given, we do not propose to interfere with the imposition of an extended sentence.
65.
It was submitted on behalf of the applicant that the custodial period of 4 years, was, however, manifestly excessive. We do not agree. This was a bad case of an older man exploiting an exceptionally vulnerable child in her own home for his own sexual gratification. Had the judge imposed the proper sentence under
section 225
of
the 2003 Act
, a minimum term based on a determinate term of four years imprisonment could not have been faulted. In those circumstances we refuse this application.
‘S’
66.
On the 16
th
August 2006 at the Nottingham Crown Court, the applicant was convicted by a jury of wounding the victim with intent to cause him grievous bodily harm contrary to section 18 of the Offences Against the Persons Act 1861. He pleaded guilty to a separate assault causing actual bodily harm contrary to section 47 of the 1861 Act on the same victim. On the 11
th
September 2006 he was sentenced by HHJ Mitchell to six year’s detention under
section 91
of
the 2000 Act
, on Count 1, and a concurrent term of one year’s detention on Count 2.
67.
The victim had driven, with his girlfriend, to a square in Calverton to find his parents. On walking through the square, he encountered a large group of youths including the applicant. Although he did nothing to provoke any of them, they took offence at his presence. Four of them encircled him and punched him to the ground. When he got up, the applicant was standing in front of him with a Stanley knife in his right hand which he used to slash the victim’s face and then made a slash across his stomach, but in the event only damaged his clothing. The slash to the face resulted in a 1 cm laceration to the lip and a defensive injury to the victim’s left hand. He also sustained a 2 cm laceration of the left eyebrow which had been caused by a punch. The jury rejected the applicant’s evidence that he had played no part in the attack.
68.
The offence under section 18 of the Offences Against the Persons Act 1861 is a “serious” offence and accordingly the applicant was at risk of the imposition of a sentence of detention for public protection under
section 226
or an extended sentence under
section 228
if the judge had made a finding that he met the criteria of dangerousness. Although he had been convicted of an offence of street robbery on the 9
th
January 2006 for which a three year supervision order had been made that conviction post dated the offence for which he fell to be sentenced by Judge Mitchell and accordingly the judge was not required to make the statutory assumptions provided for in
section 229(3)
of
the 2003 Act
. The judge, in his sentencing remarks, said:
“The suggestion that you are not dangerous, I reject. You are a dangerous young man who arms themselves with a weapon before they go out at night.”
69.
We accept that the judge did not intend by those remarks to indicate that he made a finding that the criteria of dangerousness were met for the purposes of
the 2003 Act
. And the fact that he did not impose either an indeterminate sentence, or an extended sentence, supports that conclusion. But we are wholly unpersuaded that the judge was not entitled to consider that this was an extremely serious example of unprovoked violence which should be marked by a significant sentence of detention. In our view the judge was accordingly right to invoke the court’s powers under
section 91
of
the 2000 Act
; and a detention period of 6 years is not in our view manifestly excessive.
70.
However, he was not entitled to impose a sentence of detention under
section 91
of
the 2000 Act
for the offence of assault occasioning actual bodily harm. The only practicable course was to impose no separate penalty for this offence. We accordingly give leave to appeal, and allow the appeal to the extent of quashing that element of the sentence.
Thompson
71.
On the 22
nd
June 2006 at the Central Criminal Court, the applicant was convicted by a jury of attempted murder. On the 25
th
June 2006 at the Inner London Crown Court, he pleaded guilty on re-arraignment to possession of a class A drug, crack cocaine, with intent to supply. On the 23
rd
August 2006 he was sentenced by HHJ Simon Smith to 18 years’ detention in a young offenders’ institution for attempted murder and to six years detention in a young offenders institution for the drugs offence, to be served concurrently. He directed that only forty days of the 204 days which had been spent in custody on remand would count towards sentence.
72.
The facts were on the 11
th
September 2005, the applicant entered the Ocean Centre in Dalston Lane armed with a loaded handgun. He shot a man called Dayne Thompson at close range. The bullet passed through his kidney and gall bladder. The injuries were life threatening and required several surgical procedures, including removal of his gall bladder. The victim identified the applicant by identification procedure. The motive for the crime was never established, but was plausibly assumed by the judge to have been a revenge attack with a background of drug dealing.
73.
On arrest, the appellant was found to have concealed in his buttocks 15 cling film wraps, containing 2.67gms of crack cocaine at 55% purity. On arrest, and until 40 days before he was sentenced, the appellant maintained that he was his younger brother Omaro Thompson, aged 17 whereas his name is Emelio Thompson, and he is aged 20. It was for this reason that the judge declined to credit the time which he had spent on remand while claiming to be his brother.
74.
It is submitted on his behalf that the sentences imposed were manifestly excessive in two respects. Firstly it is said that 18 years’ detention was too long; and secondly it is said the judge should have credited the whole period spent in remand. We do not accept either submission. This was an attempted execution. If it had succeeded the starting point would have been detention for life with a minimum term of 30 years (i.e. the equivalent of a determinate sentence of imprisonment of 60 years). But for the defendant’s age an even longer term might well have been appropriate. The judge did not expressly state in his sentencing remarks that he had decided not to impose an indeterminate sentence under
section 225
of
the 2003 Act
. Given the nature of the offence, either sentence may well have been appropriate. The judge may have been affected by the fact that he made a recommendation for deportation which, if acted upon, will ensure the protection of the public in this country at any rate on his release. It would, however, have been better sentencing practice, in view of the fact that the attempted murder offence was a “serious” offence for the sentencing judge to have dealt expressly with the question of whether or not the applicant met the criteria of dangerousness. Turning then to the submission that the judge should not have reduced the number of days spent of remand which would be credited against his sentence, we can see no justification for interfering with the exercise of the judge’s discretion in this respect. The applicant was clearly intending to obtain some advantage by pretending to be his brother. And so long as he maintained that deception, the judge was entitled to conclude that he should not obtain the benefit of credit for those days served. The application is dismissed. | ```yaml
citation: '[2007] EWCA Crim 538'
date: '2007-03-08'
judges:
- LORD JUSTICE LATHAM
- MR JUSTICE MITTING
- MR JUSTICE TEARE
``` |
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:
200602616/D2
Neutral Citation Number:
[2006] EWCA Crim 2425
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Monday, 9th October 2006
B E F O R E:
LORD JUSTICE RIX
MRS JUSTICE DOBBS DBE
SIR CHARLES MANTELL
- - - - - - -
R E G I N A
-v-
RICHARD CHARLES HUMPHRIES
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR S DREW
appeared on behalf of the APPELLANT
MR I POLE
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
MRS JUSTICE DOBBS: On 10th March 2006 at the Stoke-on-Trent Crown Court, this appellant pleaded guilty to three counts of indecent assault and one count of indecency with a child. He was sentenced to an extended sentence of four-and-a-half years, being made up of a total custodial term of two-and-a-half years and an extension period of 2 years. He was sentenced as follows: for count 1 on the indictment, 12 months' imprisonment; on count 2, two-and-a-half years' imprisonment concurrently; count 3, that is the indecency, 12 months imprisonment concurrently and count 6, another indecent assault, 12 months' imprisonment. He appeals by leave of the Single Judge who also granted the extension of time within which to appeal.
2.
The co-accused, Andrew Evans, pleaded guilty to two counts of indecent assault and received an extended sentence of three-and-a-half years comprising a custodial sentence of 18 months with a 2 year extension period.
3.
The facts are as follows. The appellant had become friendly with the family of the victim, Miss H, and would regularly attend family events such as parties and barbecues. At around the age of 12 she began to develop a serious crush on him and began showering him with kisses and greetings which escalated. Eventually the appellant responded and kissed her back.
4.
During the year when she was 12 (June 2000 to 2001), they regularly kissed intimately and he began to touch her breasts and thigh. That represents activity in relation to count 1.
5.
The sexual activity continued almost every time they saw each other and increased in seriousness. While she was 12 the appellant began to digitally penetrate her. That is the subject matter of count 2. During the course of this relationship, Miss H began to masturbate this appellant and this also became a regular occurrence and that represents count 3, and was activity which carried on over 3 years.
6.
The appellant allowed the sexual relationship to develop between them and continue until KH was 14. He allowed her to drink and smoke in his presence and to behave in a way that was wholly inappropriate for her age.
7.
KH had a school friend, S, to whom she had confided her relationship with the appellant. She introduced this school friend, who was aged 13, to the appellant. The two girls went round regularly to the appellant's house, where they would drink alcohol, smoke cigarettes. There they met the appellant's friend, a co-accused, Mr Evans. Again, like KH, S was allowed to behave in a way beyond her years. On one occasion, when S had her head on the appellant's shoulder on the sofa downstairs, they began kissing and he touched her on the vagina over her clothing. That is the subject matter of count 6.
8.
This matter came to light in September 2005, some 2 years after the relationship had ended when KH disclosed to her mother what had happened. As a result of that disclosure the appellant was interviewed.
9.
In his first interview he denied any inappropriate sexual contact although accepting that she had become a friend, and he denied allowing her to drink alcohol. In the second interview he agreed that on one night there was alcohol drunk by him and he had woken up in the morning to discover the girls in bed with him but could not recall sexual activity taking place.
10.
This appellant was born on 3rd October 1971. He was of previous good character. There was a pre-sentence report in front of the court, which indicated that he had expressed remorse. However the view was taken he sought to place blame on both girls by maintaining that they had made the advances towards him, which he had succumbed to eventually. He was assessed as posing a high risk of harm, especially towards children, although his risk of reoffending was assessed as low to medium.
11.
When sentencing, the judge noted that the law was sometimes required to protect children against themselves and this applied particularly in this case. Both the two men were mature men and were involved in grooming the two children. They took advantage of the children, fed them alcohol and cigarettes and the appellant in particular was, in the judge's view, in great breach of trust. He knew the family; he was trusted, yet he seduced the child and allowed her to be besotted with him. He gave full credit for the plea and noted the appellant's good character and the remorse expressed.
12.
The grounds of appeal as set out were, first of all, that the learned judge erred in passing a sentence of more than 2 years' imprisonment as the custodial term on count 2. This was relying on the convention that a defendant should not be sentenced to more than 2 years' imprisonment when he has been prosecuted for indecent assault where the complainant is 13 to 15 and consented but where there can be no prosecution for unlawful sexual intercourse. Secondly, that the sentence was manifestly excessive, bearing in mind the mitigation in front of the court.
13.
Counsel before us today has modified his approach in a sense, in relation to the convention -- if we can call it that -- and says that it is a matter that the court should bear in mind when dealing with cases of indecent assault under the old legislation.
14.
However, his real ground of appeal is that given all the mitigation in this case, the sentence is manifestly excessive.
15.
The maximum sentence for indecent assault is 10 years. In this case the prosecution had indicted counts of indecent assault which as was made quite clear by prosecuting counsel did not relate to any incidents of unlawful sexual intercourse.
16.
It is against that background that we consider the sentence passed. This was, as the judge found, a serious breach of trust by the appellant. Moreover, the judge found that he encouraged the relationship, fed the girls alcohol and cigarettes and in effect he had groomed the girls, being fully aware of their ages and also being fully aware that the relationship was inappropriate. There was, as we note, a substantial age difference between them. Against that, he pleaded guilty at the first opportunity. He was a man of good character, with a good work record. He had expressed remorse, although this has to be set against his insistence on blaming the girls for making the first approaches. There was some delay in the allegations being made.
17.
Although this was a course of conduct, it was a course of conduct over 3 years. The counts reflect the different sexual activity which increased in seriousness as the relationship developed. We also note, in relation to one of the counts that the girl herself had said "no" to sexual intercourse and no doubt this was the matter that affected the judge's mind when he made the comments about grooming.
18.
We take the view that there could have been no criticism if the judge had passed consecutive sentences had he wished. This is conceded by counsel. Our task is to look at the totality of the sentence in the circumstances of the case. Having done so, and even bearing in mind that the victim here was a fully willing and enthusiastic partner, we take the view, in particular in the light of the judge's findings that the sentence in all the circumstances was not manifestly excessive. It follows, therefore, that this appeal against sentence is dismissed. | ```yaml
citation: '[2006] EWCA Crim 2425'
date: '2006-10-09'
judges:
- LORD JUSTICE RIX
- MRS JUSTICE DOBBS DBE
- SIR CHARLES MANTELL
``` |
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:
200303780/B1/4605/B1
Neutral Citation Number:
[2004] EWCA Crim 2341
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Wednesday, 28th July 2004
B E F O R E:
LORD JUSTICE ROSE
(Vice President of the Court of Appeal, Criminal Division)
MR JUSTICE TREACY
SIR EDWIN JOWITT
- - - - - - -
R E G I N A
-v-
DENNIS RAYMOND ALEXANDER AND GEORGE STEEN
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR P SINGER QC
appeared on behalf of Alexander
THE APPLICANT STEEN
appeared In Person
MR R LATHAM QC AND MR G POUNDER
appeared on behalf of the Crown
- - - - - - -
J U D G M E N T
1.
THE VICE PRESIDENT: On 23rd June 2003 at Southwark Crown Court, following a five and a half month trial before His Honour Judge Goymer, three defendants, Alexander, Andrews and Steen, were convicted by the jury of conspiracy to defraud. Subsequently they were sentenced respectively to two, five and six years' imprisonment.
2.
All three were given leave to appeal against conviction by the single judge on one ground arising out of a communication sent by the woman foreman of the jury to leading counsel for the prosecution 11 days after the jury's verdicts. They were refused leave to appeal by the single judge on all other grounds. Andrews has abandoned his appeal. Alexander and Steen seek leave before us to pursue other grounds on which leave was not granted by the single judge. Steen also seeks leave to appeal against sentence and that application has been referred to the Full Court by the Registrar.
3.
The conspiracy alleged against the three defendants was an advance fee fraud. Alexander and Andrews were partners in a firm of finance brokers called Corporate Advances. The period covered by the indictment was from 1st January 1996 to 16th June 1999, on which latter date the three defendants were arrested. Alexander had resigned from the partnership on 31st October 1997, but he was shown after that time to have continued as a paid consultant to Corporate Advances and was still involved in the conduct of the firm's business. Steen ran a company called Peninsular Holdings whose purported business was to offer large commercial loans to would-be borrowers, to whom we shall refer as applicants. 90 per cent, or more, of the applicants to whom Peninsular Holdings were introduced came via Corporate Advances. Steen claimed to have access to substantial funds outside the jurisdiction of this Court, which were available to be lent on terms which met the criteria imposed by the lenders.
4.
It was the prosecution case that applicants were to be persuaded to part with substantial fees in anticipation of a loan being made. But the defendants expected, and intended, that the loans would not be made, because of a requirement that an assignable collateral bond should be provided which guaranteed repayment of the loan and which could not be purchased out of the money loaned. The expectation of the defendants, according to the prosecution, was that the applicants would not be able to meet that condition. However, if an offer of a loan were made, and that condition was not met, the advance fees already paid by the applicants would not be returnable and would, effectively, be dishonest profit in the hands of the defendants.
5.
Most, if not all, of the applicants, of whom 21 gave evidence before the jury, and many other applicants who did not give evidence, were not people who, in the ordinary way, would be regarded as blue chip borrowers. They needed to borrow the whole of the money which they wanted to promote their respective schemes. The security they had to offer consisted of the assets of the schemes, including any assets which already existed and were to become part of the scheme if it went ahead. They had no other significant assets. Interest rates were higher than for a loan made by a bank to a borrower with a sounder scheme who was not seeking a 100 per cent loan. There was nothing sinister or unusual about this. Some of the schemes were said by the defence to be ill-thought out, or hopeless, with no prospect of ever coming to fruition, or of raising the finance required, and no doubt that was so. Some applications were rejected as hopeless by Corporate Advances, or Peninsular Holdings, with no fees being paid beyond an administration fee.
6.
The first fee, a reading fee, was payable to Corporate Advances by an applicant before ever the applicant's proposals were considered at all. There was also an administration fee, initially £5950, raised later to £6950. If Corporate Advances told an applicant it thought a loan could be obtained, his application would be referred to Peninsular Holdings, and, in due course, if all went well, a letter would be sent to him to that effect. The next stage was for the applicant to pay a due diligence fee on a sliding scale which might run to tens of thousands of pounds according to the amount of the loan sought. This was payable before any commitment was made by Peninsular Holdings offering a loan. Until it was paid, applicants would not receive a commitment letter. The purpose of the due diligence fee was to cover the costs of the investigations which would have to be made into the bona fides of the scheme and of the applicant, in particular in relation to his ability to service the loan. Investigation of the due diligence aspect would not begin until a loan offer had been made by commitment letter and the requirements in relation to the collateral bond complied with by the applicant. Applicants, on the evidence, often did not know about any requirement for a collateral bond until they received the commitment letter, by which time, as we have said, they would have spent substantial sums of money by way of the three fees which we have identified.
7.
The security provided by the required collateral bond was to be in addition to any other security provided. We have already referred to the further condition that no part of the borrowing could be used for the purchase of the collateral bond. The cost of such a bond varied between 23 per cent and 40 per cent of the money to be borrowed, depending upon the credit rating of the bond and its terms. It is apparent that it would be impossible for applicants to comply with the combination of these two conditions. As a number of the applicants said in evidence, they made no commercial sense, and they would never have handed over any money to Corporate Advances or Peninsular Holdings had they known about the conditions from the outset, or that they would be required to comply with them. If they had assets with which to purchase the required collateral bond, they would never have needed to borrow money on the market which the defendants were purporting to operate.
8.
The jury were entitled to ask, as it seems to us, whether any business man would think it was an honest business if he took fees from applicants in return for an offer of a loan which he knew the applicants would never be able to take up. One applicant, by way of example, Mr Delucca, said that when the defendant Steen refused to waive the requirement for a collateral bond, and he asked him and Corporate Advances if they could help him to find a finance house from which he could purchase such a warranty, he was given no assistance or advice at all. If the jury accepted that evidence, it must have spoken volumes about the dishonesty of the business conducted by the two firms.
9.
We have said that some applicants learned for the first time of the requirement of a collateral bond after they had paid the due diligence fee. This did not continue to be the case throughout the period alleged in the indictment, and, when he was cross-examined by the Crown, Steen said that none of the applications he received through Corporate Advances ever proceeded to completion. He accepted he must have asked himself what was going wrong, and he realised the applications had foundered because the applicants did not have funds available. Steen said he realised something had to be done, but the lender's conditions were outside his control and did not permit him to dispense with the need for a bond. So, he said, he did nothing. But he had also said that sometimes, in the early stages, specimen letters, setting out terms, were provided. Then he adopted the practice of sending, in advance of payment of the due diligence fee, a specimen commitment letter so that borrowers would know what the terms were.
10.
The evidence was that it was Andrews who dealt with the individual applicants. If they queried the requirement for a collateral bond, Andrews explained the requirement away, saying, variously, that it would not be insisted upon, or what would, in effect, be a promissory note would suffice, and what they had been shown was a document which set out terms which did not all have to be part of the terms offered in their particular case. He told them there was no cause for anxiety, and those who succumbed to his blandishments and paid the due diligence fee discovered to their cost, when they received the letter of commitment, that the conditions relating to the collateral bond formed part of the offer and were not negotiable.
11.
Steen said his business held 3 million dollars in off-shore accounts on behalf of applicants, though he had never written to any of them to tell them that. Corporate Advances had sent hundreds of application to him, but all turned out to be completely the wrong sort. He accepted, however, that these applications were producing an income for him, and that an explanation of what was involved would have weeded out more applications at the beginning. He said that he had asked himself many times why it was all going wrong.
12.
It is to be noted that the conspiracy alleged by the prosecution did not require that there should be any lender in the background ready and able to lend money.
13.
Steen in the course of the trial did not produce any documents, although he claimed they existed out of the jurisdiction, to show that there were lending sources ready to lend money. Once Steen went into the witness box he was clearly vulnerable to adverse comment arising from his failure to produce any of the relevant paperwork.
14.
As we have said, the applicants' main contact among the defendants was Andrews. Indeed, there was no evidence of any meetings between Alexander and the applicants, or, indeed, of any communication directly between Alexander and the applicants. He told the police that Corporate Advances received a share of the due diligence fees from Steen. The evidence also connected very few of the applicants by way of direct dealings with Steen. When Andrews was interviewed by the police, he chose to say nothing. He did not give evidence before the jury, nor did Alexander, although he had answered questions when he was interviewed, and to those interviews we shall later return.
15.
Alexander's case was that he had no knowledge of any deceptions being practised upon applicants by Andrews; that also was Steen's case. He and Alexander said they had no knowledge of any fraud and were not part of a conspiracy. Steen said he had trusted Corporate Advances and was carrying on an honest and legitimate business.
16.
Against that background we turn, first, to consider the grounds of appeal which Mr Singer QC, on behalf of Alexander, now seeks leave to pursue. The first of those grounds asserts that there was no evidence upon which a reasonable jury properly directed could have convicted him and the judge was wrong not to stop the case at the close of the prosecution. Mr Singer points out that the allegations against the defendants, as reflected by amendments to the indictment, narrowed as time went on. He is critical of the terms of the summing-up, which, he claims, was inadequately structured and failed properly to deal with issues raised by the defence, particularly in relation to Alexander's interviews, which, Mr Singer complains, ought to have received from the judge highlighting in five particular respects, which it is unnecessary to rehearse.
17.
As we have said, Alexander did not give evidence. It is to be noted that the jury had transcripts of the interviews and a detailed index to each of the matters with which they dealt. The jury had also heard tape recordings of parts of the interviews, and, indeed, a recording of part of one of the interviews was played by Mr Singer as part of his closing speech.
18.
The nub of Mr Singer's argument is that the applicants who gave evidence were induced by lies told by Andrews in relation to the requirement of a collateral bond. But, Mr Singer submits, unless Alexander knew of those deceptions he could not be convicted. The judge should have so directed the jury, but did not do so, and there was no evidence that Alexander had any contemporaneous knowledge of the deceptions. Mr Singer seeks to sustain that argument by virtue of the fact that the judge told the jury in clear terms, more than once, that, unless they were sure Steen knew of the kinds of deceptions being practised by Andrews upon applicants, they must acquit him.
19.
The need for that direction in relation to Steen clearly lies in two aspects of the evidence in relation to him. First, he was not a member of Corporate Advances and there was no evidence that he was privy to the initial discussions between Andrews and the applicants, which would, had he been aware of them, have alerted him to the fact that they would never be able to provide a collateral bond. Secondly, once advance notice of the requirement of a collateral bond was given to many of the applicants, it was open to Steen to say that they were not tricked into paying the due diligence fee at a time when they had no knowledge of this requirement and with which they would find it impossible to comply.
20.
A conspiracy to defraud does not include as an essential element that lies be told to the victims. But, because of those two aspects of the evidence in relation to Steen which we have identified, it was necessary for the Crown to prove that he knew of the nature of the deceptions being practised upon applicants so as to obtain fees. In the case of Alexander, however, the prosecution did not have to surmount those hurdles, for he was a partner in Corporate Advances, a very small business in terms of geographical space and membership, until he withdrew from the partnership and, thereafter, he was still actively involved in running the business. It was not necessary for the prosecution to prove that he knew of the lies being told by Andrews. If he did, that clearly strengthened the case against him, but, if there was other evidence of Alexander's guilt, the issue of whether or not he knew of those lies was not, by any means, central to proof of his guilt.
21.
There was other evidence against Alexander. It came in a variety of forms. We do not need to rehearse it in detail. It was dealt with by the judge in his ruling at volume 1 pages 85 to 92 and in the summing-up at volume 4A at pages 44 to 46, and it is set out in the skeleton argument for this Court of Mr Latham QC for the prosecution at pages 10 and 11. In essence it was that Alexander prepared in his own hand dozens and dozens of bank movement sheets, as they were referred to, which he could not have prepared without knowing details of the income and expenditure of the business. He also knew that no loans were ever made and that there were complaints made by applicants. The business premises, as we have said, consisted of a tiny office, in which, intermittently, throughout a two and a half year period, he and Andrews had been sitting together. From January 1996 the business was a total failure in achieving the objective of procuring loans, yet it was one which produced a substantial income from the introductory fees. With that knowledge, the prosecution said, Alexander must have known the business was dishonest and he continued to participate in it with that knowledge, making him a participant in the conspiracy to defraud.
22.
The other ground on which Mr Singer seeks leave is based on the judge's refusal to discharge the jury following Mr Latham's cross-examination of Steen. It is said that Mr Latham repeatedly, over a number of days, endeavoured to move back the starting date of the conspiracy to a point two years before the indictment identified it as beginning. The effect of that cross-examination is said to have been so unfairly destructive of the defendants' chance of a fair trial that the judge should have acceded to the application, when it ultimately came, to discharge the jury.
23.
It is to be observed that there were three teams of leading and junior counsel defending the three defendants in this case. At no time during the cross-examination was any significant protest made during the many intervals when the jury were not present, or, indeed, at any other time, that Mr Latham was transgressing the bounds of fairness. In fact, as it seems to us, the objection to his cross-examination is based on a misunderstanding of the way in which conspiracy can be proved, when, as in the present case, it depends on circumstantial evidence. It was legitimate for the prosecution to explore the unsuccessful history of loan applications during the period prior to the initial date of the conspiracy, as alleged in the indictment, in order to demonstrate that those charged had not come freshly to the situation, but already had enough experience to know that applicants of the kind we have described would be unlikely ever to be able to meet the terms on which a loan would be offered and so would be paying fees in a hopeless cause. The jury were entitled to consider, if they were satisfied the defendants knew this, whether, in carrying on the business in the same way, they were behaving dishonestly in pursuit of a conspiracy to defraud and to conclude that they were.
24.
In our judgment, the judge was entitled to exercise his discretion against discharging the jury and there were grounds justifying that decision. He also, in due course, gave appropriate directions to the jury on this aspect of the case. In our judgment, there is no arguable substance in the additional grounds sought to be advanced by Mr Singer on behalf of Alexander, and we refuse leave to appeal in relation to those grounds.
25.
Steen in written grounds of his own composition, submitted over the period between 20th October 2003 and 16th July 2004, makes essentially five complaints. First, it is said there was inequality of arms between prosecution and defence because of inadequate disclosure by the prosecution, inadequate time and facilities to prepare the defence and the failure of the Serious Fraud Office to pursue, with the same diligence which they devoted to eliciting evidence supporting the prosecution, matters which might have assisted the defence. Also, it is said the prosecution have withheld material from Steen which might help his appeal.
26.
There are, as it seems to us, several difficulties in these contentions. There were three years between the date of Steen's arrest and his trial. He must have known what his sources of funds available for lending were, and yet in his police interviews he was, to put it no higher, extremely vague about them. He did not, at trial, as we have already said, produce the paperwork which he now claims would have supported his defence. And, pending his trial, it is to be noted that there were no restrictions on the inter-continental movement of his wife. He also declined to pay, when offered the opportunity, for the photocopying of documents by others. The prosecution disclosed to those defending Steen all the documents which were in their possession and power.
27.
The court during the trial sat what are called Maxwell hours, whereby the afternoons were free for appropriate investigations and perusal and assimilation of documents to take place. There was unfettered defence access to the documents throughout the trial. When adjournments were sought by the defence, they were granted; sometimes for substantial periods. Throughout his trial, Steen was represented by highly experienced leading counsel and by junior counsel and solicitors. No complaint was made by them during the trial about the supposed inadequacies of the opportunity for access to documentation. That first ground is, accordingly, without merit.
28.
Secondly, it is said that inadmissible material, the so called "Dooley letter", was improperly introduced during the trial and, thirdly, that the judge should, in consequence, have discharged the jury.
29.
A letter from a firm of Liverpool solicitors, called Dooley and Co, confirming a loan from Philippine Finance to Minter Construction, was, in edited form, in the jury bundle throughout the trial by agreement with, among others, those representing Steen. The original letter had been recovered from Steen's office and had initially formed part of the unused material. Steen in his evidence-in-chief accepted that copies of it had been distributed to the loan applicants, but he said that this was without his authority.
30.
In cross-examination the prosecution sought to show that the letter had nothing to do with the loan scheme operated by the defendants. The court adjourned to allow Steen to familiarise himself with the file. The judge said it would have been better had such cross-examination first been canvassed in the absence of the jury, but he refused to discharge the jury. He ruled that there had been no prejudice sufficient to justify that course, and, in any event, the issue had arisen because of the evasion, or lack of co-operation, of Steen himself.
31.
In our judgment, the judge applied the proper test as to whether or not the jury should be discharged, and the exercise of his discretion in refusing so to order is not susceptible to effective challenge. We have dealt at an earlier stage in relation to Alexander with other aspects of the application to discharge the jury. There is, in our judgment, nothing in these second and third grounds.
32.
Fourthly, criticism is made of the summing-up for being selective in relation to the evidence. Following a five and a half month trial this is unsurprising. But, in any event, at the behest of Steen's counsel, the judge rehearsed in his summing-up a list of points derived from cross-examination on which Steen's defence relied. The summing-up was not, in our judgment, unfair or inadequate in the way in which it put Steen's defence. Bearing in mind that Steen chose to absent himself from the summing-up by going abroad in breach of his bail conditions, this ground is deeply unattractive. Further, it is devoid of substance.
33.
Steen's fifth ground relates to the jury foreman. It was argued on his behalf, as well as on behalf of Alexander by Mr Singer. Before turning to Mr Singer's submissions, we make the observation that the physical assault unhappily made on leading counsel for the Crown towards the end of April 2003 and the disagreements between counsel, sometimes in the absence of the jury and sometimes in the jury's presence, add nothing of substance to the allegation in relation to the alleged bias point in relation to the jury to which we now turn.
34.
On behalf of both appellants, Mr Singer QC submits, rightly, that the relevant test to be applied is that enunciated by the Master of the Rolls in
In re Medicaments
[2001] 1 WLR 700
at page 727, paragraph 85 of the judgment:
"The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased."
35.
The ground arises, as we have said, in the present case because of communications, by e-mail and handwriting, on 4th July, that is to say 11 days after the jury's verdict, from the woman who was the foreman of the jury to leading counsel for the Crown. The e-mail was headed "summons to attend", and it identifies, as the witness to whom it was addressed, leading counsel for the Crown. It said:
"You are required to attend: a dinner date.
Date: On or around 26th of July 2003.
Time: 7.30 p.m. onwards.
Prosecutor: [the name of the juror was given].
Case outline: To answer the following question:
What does a lady need to do to attract your attention?
1. Attend court.
2. Give sustained eye contact.
3. Be patient (5.5 months).
4. Wait until the case has finished.
5. Let the man know that she's interested.
To start deliberations ring: [and a telephone number is given]
Or e-mail: [and an e-mail address, starting with the word 'champagne', is given]."
36.
There was a bottle of champagne delivered, together with a handwritten note, dated Friday 4th July 2003, in these terms:
"Richard.
I really enjoyed the past five and a half months. Your delivery was superb -- really outstanding. You deserve to crack open a bottle of champagne -- hope you enjoy it!"
And it was signed in the first name of the woman foreman.
37.
Mr Latham, understandably and properly, wrote immediately to Mr Singer QC, indicating what had happened, and confirming, as one would expect, that he had never at any stage, during the trial or since, spoken to the juror. Furthermore, Mr Latham's clerk sent an e-mail to the e-mail address provided, seeking an address to which the bottle of champagne could be returned.
38.
In response to that e-mail there was a further e-mail on the afternoon of the same day, 4th July, from the woman juror, giving her address, the e-mail going to Mr Latham's clerk, and saying:
"I was unaware of the Bar code of conduct -- sending and receiving gifts even after the trial has ended. I appreciate that acceptance of a gift could have the potential to be misconstrued by others. Sincere apologises. You can return the champagne to the following address."
39.
In the light of the decision of the House of Lords in
Mirza
[2004] 1 AC 1118
, this Court earlier this year directed that no enquiries should be made of any member of the jury in relation to these matters.
40.
Mr Singer sought to distinguish three decisions of this Court, to which, a little later, we shall come.
Cunningham
[2003] EWCA Crim 1769
, was, as Mr Singer points out, a case involving a note after verdict in a one week case. He submitted that observations in paragraph 20 of the judgment, which we shall a little later rehearse, should be viewed with circumspection, because, on their face, as Mr Singer recognised, they present him with something of a difficulty. As to
Nickerson
, Court of Appeal Criminal Division transcript of 25th January 1993, Mr Singer pointed out that the trial in that case was short, the juror involved was not the foreman, and the only form of social contact there sought was conversation or a drink. As to
Godfrey and Hardiman
, Court of Appeal Criminal Division transcript of 1st July 1994, Mr Singer said that the circumstances there, which involved a communication to one of the defending counsel were different from those in the present case. Furthermore, Mr Singer submitted, rightly, that, so far as
Nickerson
and
Godfrey and Hardiman
are concerned, those cases were decided before the coming into force of the
Human Rights Act
and before the decision of the House of Lords in
Gough
was, to a small extent, modified by the judgment of the Master of the Rolls in
In Re Medicaments
. Therefore, submits Mr Singer,
Nickerson
and
Godfrey and Hardiman
should be viewed with even more circumspection.
41.
His submission is that the foreman, who sent these communications, was clearly the most prolific note taker on the jury and was clearly paying close attention to what went on. He submits that the proper construction of the documents emanating from the juror was that she regarded guilty verdicts as a cause for congratulation; that she was attracted to the prosecutor, and had, perhaps, been so attracted throughout the course of this lengthy trial; that she had sought unsuccessfully to communicate her interest; and that her objective was plainly to initiate a relationship with leading counsel for the Crown. Therefore, submits Mr Singer, she displayed a great deal of partiality towards the person of the prosecutor. The question which arises, Mr Singer submits, is, did that partiality infect her view of the case? The congratulatory element, as Mr Singer identified it, in the communication in handwriting is not to be found in any of the other authorities to which we have referred. Mr Singer accepts that it is a serious matter to impugn the verdict of a jury on this sort of basis. But, he says, it is difficult to see why the circumstances of this case do not give rise to a breach of the appellants' Article 6 Convention rights to a fair trial.
42.
On behalf of the Crown, Mr Latham QC submits that there was a very strong case against all three defendants, two of whom, as we have said, and as he emphasises, did not choose to give evidence. He submits, as to the law, that the court must investigate the relevant circumstances. For that purpose the court personifies the reasonable man, and the court must find, before quashing the conviction, a danger of bias, and that such bias created an unfair trial, or unsafe verdicts, and that danger, or risk, must be more than a merely minimal risk.
43.
In addressing these rivals contentions it is, in our view, helpful to cite a number of passages from the three pertinent authorities which we have identified. So far as the first two of them are concerned, we bear well in mind the health warning of Mr Singer, that they were decided before the
Human Rights Act
and before the present applicable test was adumbrated by the Master of Rolls in
In re Medicaments
.
44.
In
Nickerson
the judgment of the Court, in which Lloyd LJ, as he then was, presided, was given by Potter J, as he then was. The appellant had been convicted of unlawful wounding by a majority of ten to two. Some days after the trial, as he properly disclosed to counsel for the defence, counsel for the prosecution received a note from one of the female jurors in the case, which introduced the writer as a juror on the case and sought social contact with prosecuting counsel in the form of lunch or a drink. At page 3B of the transcript Potter J said this:
"Perhaps the first thing to be observed is that this court is invariably reluctant to interfere with the verdict of any jury in circumstances which either directly or implicitly involve speculating on the course or nature of the jury's deliberations, the secrecy of the jury room having been a jealously guarded principle of our law for centuries."
We interpose there, that that principle is, of course, maintained by the recent decision of the House of Lords in
Mirza
to which we have already referred.
45.
Potter J went on:
"A relatively modern expression of that principle is to be found in
section 8 of the Contempt of Court Act 1981
."
46.
He continued at just above 3F:
"It is an associated principle of our law that, while jurors may be challenged for cause prior to being sworn if bias or other suitability is reasonably suspected, and may be discharged by the judge at any time before verdict if misconduct or bias become apparent, after verdict no judgment in any trial by jury in any court may be reversed on the grounds that any juror was unfit to serve. That is a provision of section 18(1) of is the Jurors act 1974.
This subsection, together with its proviso that it does not apply to any objection to a verdict on grounds of impersonation of a juror, embodies another longstanding principle of common law. Such principle has, for instance, led this court to refuse to set aside a verdict on subsequent discovery that a juror was too deaf to have heard more than half the evidence (see
Chapman
(1976) 63 Cr App R 75).
It is apparent from decided cases that the statutory rule concerning unfit jurors is not applied so as to exclude this court from considering questions of bias when reviewing the exercise of a trial judge's discretion in deciding whether or not to discharge a juror or jury for alleged bias in respect of matters emerging
in the course of trial
. However, where knowledge of circumstances giving rise to suggestions of possible bias have only arisen,
after
verdict and are raised for the first time on appeal, the ability and willingness of the court to interfere are more circumscribed."
47.
At 5H Potter J went on:
"Thus, allegations, suspicion and inference of bias on the part of a juror without more cannot be enough, at least in a case where the matter of which complaint is made is raised only after verdict and has not been the subject of the judge's discretion in relation to an application for discharge of the juror in the course of the trial."
48.
Then at page 7A Potter J said:
"The matter seems to us quite clear. The note concerned, from which an inference of bias is invited to be drawn, did not and could not have come to the attention of anyone before verdict because it was not written until a week after. Again it does not and cannot indicate bias in the sense of a determination to come to a particular result from the outset of the trial because it can scarcely be suggested that, even before he rose to his feet to open the case, the qualities of prosecuting counsel had so impressed themselves upon the juror that they were likely to influence her in her task, regardless of the weight of the evidence.
But that is to put the matter on too limited a basis. Both observations presuppose, as counsel for the appellant has submitted, that the terms of the note itself are to be properly regarded as indicative, or at least raise an inference, of prejudice in favour of the prosecution.
We do not accept that submission. The terms of the note itself were not such as to suggest that the juror concerned did not adequately or conscientiously perform her task from start to finish in the context of the jury room, nor do we think, as counsel submits, that it is an indication that she would have allowed her attention unduly to wander in court, or to seek to influence her fellow jurors to any view based on other than the evidence.
To suggest the contrary is to attribute to the author of the note an inability to distinguish between the personal characteristics of the prosecutor and the weight of the evidence, as well as willingness to ignore the terms of her juror's oath. That is not an inference we consider can or should be drawn from a note written several days after the verdict with a view to social contact quite independent of the courtroom and the case."
49.
In
Godfrey and Hardiman
, after the jury had unanimously convicted one of three defendants and unanimously acquitted a second of murder, the judge gave the jury a majority direction in relation to the third defendant. As the jury were returning to their retiring room after that direction had been given, a letter was handed to one of the ushers by a female member of the jury. It was marked "private and confidential" and addressed to leading counsel for the defendant who had by then been acquitted. After hearing from counsel, the judge opened the letter, which was addressed to leading counsel and included the following:
"Would it be at all possible for you to consider an invitation for a drink with me ... I do not wish to place you in an embarrassing situation ... but just in case there is a slight possibility of you accepting ..."
The juror's home telephone number was appended.
50.
When all counsel in the case had read the note, the judge said that he did not propose to do anything in relation to the juror, subject to counsels' views. Counsel did not suggest that the judge did anything. Within a very short time the jury returned and convicted the third defendant by a majority.
51.
The basis of the appeal, which was then launched on behalf of the two defendants convicted of murder, was that the letter having been written by the female juror to counsel for the defendant who had been acquitted, and there having been a considerable dispute during the case between the acquitted defendant's account and the accounts of the two convicted defendants of a cut throat character, the verdicts were unsafe.
52.
Roch LJ, giving the judgment of the Court, said at page 28 of the transcript, having referred to
Gough
97 Cr App R 188 and to
Nickerson
:
"In our judgment, in the circumstances of this case, a real danger that this juror was biased against the appellants and participated in guilty verdicts against them by reason of bias is not a possibility."
53.
At 29E, having considered the evidence in the case, Roch LJ said:
"There is no need to postulate that a juror must have been biased in [the acquitted defendant's] favour.
We consider it must unlikely that this juror communicated her liking for leading counsel [for the acquitted defendant] to other jurors, and still less likely that had she done so the other jurors would have allowed their judgments to be swayed by that disclosure. In the circumstances of this case, we think that there is no real danger that this juror allowed her liking for [the acquitted defendant's] counsel to transfer itself to [the defendant] and his case, and still less that she would have allowed such feeling to prejudice her judgment against [the other defendants], and lead her to disregard her oath and the judge's direction."
The Court pointed out that the different verdicts in that case were entirely explicable, having regard to the evidence, without postulating any sort of bias.
54.
In
Cunningham
the appellant had been convicted by a unanimous jury of unlawful wounding. What happened then appears from the judgment of the Court given by Grigson J at paragraph 11:
"... after the verdict had been returned and whilst the jury were in the process of dispersing a woman juror asked the usher if prosecuting counsel was married. The usher did not know. The juror then asked the usher to hand to prosecuting counsel a note. The usher accepted the note but was concerned as to the propriety of the request and read the note. The note contained an invitation to dinner and information to enable prosecuting counsel to identify the author of the note and accept the invitation if he so chose. He did not."
55.
The judgment then referred to the
In re Medicaments
test, and said at the conclusion of paragraph 16:
"It is apparent that the test to be applied here is ... Do the facts here give rise to a legitimate fear that the judge might not have been impartial? The word 'judge' includes, of course, juror in this context.
17. Any fact finding tribunal may find one advocate more or less attractive than another. It does not follow that he or she will allow that factor to influence their decision. Jurors take an oath to try the defendant on the evidence and to give true verdicts. It is the experience of the courts that jurors take both the oath and duty with great seriousness."
The judgment then went on to refer to
Nickerson
and to
Godfrey and Hardiman
.
56.
Then the concluding three paragraphs of the judgment, starting at paragraph 19, are in these terms:
"We recognise that the decisions of the Court in
Nickerson
and
Godfrey and Hardiman
must be read in the light of the test set out by the Master of the Rolls in the
Medicament
case, which we have referred above, a test described as a slightly amended
Gough
test.
20. We are quite satisfied that on an objective appraisal of the facts here there is no legitimate fear that the juror would not have been impartial. Of course, the test that we have to apply is whether the conviction is shown to be unsafe. An alternative approach to the problem is to ask: had this happened during trial would the judge have discharged the whole jury?
21. In our judgment, whilst she may have thought it prudent to discharge the author of the note, she would not been persuaded to discharge the whole jury. Inevitably, the verdict that would have been returned would have been one of guilty but by 11 rather than 12. It follows that we reject this ground of appeal also. We regard the conviction as safe, and the appeal is dismissed."
57.
It is to be pointed out in the present case, so far as this jury is concerned, that, by reason of what had happened at an earlier stage in the trial, the jury were well aware of their ability to object to the presence of one of their number. One of their number had been discharged, so that there were only 11 jurors considering their verdicts, because the other jurors complained that he smelt. They complained to the judge and he discharged that juror. Clearly, as Mr Latham points out, this was a jury alive to its rights and to the procedures for asserting them if necessary.
58.
This was, as we have already said, a very long trial, during which, as is the experience of all those concerned in criminal trials, that juries tend to bond together and to increase in confidence. There is nothing in the evidence against each of the defendants in the present case to suggest that the verdicts of guilty were in any sense perverse. On the contrary, without weighing the precise strength of the case against each defendant, it suffices to say that there was ample evidence justifying the jury's verdicts in relation to each of them. The 11 jurors who remained were unanimous in all their verdicts. Also it has to be borne in mind, as it seems to us, that, even if it were the case that the communications from this juror were capable of the construction that they displayed partiality to the prosecution case, as distinct from partiality to the prosecutor, there were ten other members of the jury, a number of whom, as Mr Singer told us, apart from the foreman, were making copious notes and displaying a keen interest in what went on.
59.
At that point, it is convenient to refer to a passage in the speech of Lord Rodger of Earlsferry in the
Mirza
case, starting at paragraph 151 of the judgment, at page 1174 of the report, just below letter F:
"Since jurors are drawn from a cross-section of the population, we must therefore suppose that in their everyday lives some may indeed be racially prejudiced, whether against black people or against white people, or against particular racial groups. But, unhappily too, this is just one of many prejudices which may be found, we must also suppose, in the pool of people summoned for jury service. Some may be affected by religious bias, others may make it a rule always to believe an Irishman but never to trust a Scotsman, others again will never trust a man in a suit or a woman in trousers, while still others may be predisposed to believe anything -- or nothing -- that a police officer says. Except to the extent that the law forbids it, people are free to hold, and to run their lives by, such prejudices -- however irrational, unattractive or downright pernicious. Not so, however, when the same people deliberate as jurors since, if given free rein, any of these prejudices might make for a partial verdict. The point goes deeper. Even jurors who harbour no such particular antecedent prejudices will usually identify more readily with people whose way of life is similar to their own and, correspondingly, look askance at those with very different, and apparently inferior, lifestyles. Yet, more than often than not, jurors from ordinary respectable backgrounds have to judge those who, the evidence in the trial shows, lead very different lives -- not working, ruthlessly exploiting the social security system, taking drugs, regularly drinking to gross excess and generally acting in an antisocial fashion. There is an obvious risk that, hearing this kind of evidence, jurors may be biased against such a defendant. What matters therefore is not the particular type or source of prejudice but the risk that it may result in a partial verdict.
152. The risk that those chosen as jurors may be prejudiced in various ways is, and always has been, inherent in trial by jury. Indeed, only the most foolish would deny that judges too may be prejudiced, whether, for example, in favour of a pretty woman or a handsome man, or against one whose dress, general demeanour or lifestyle offends. The legal system does not ignore these risks: indeed it constantly guards against them. It works, however, on the basis that, in general, the training of professional judges and the judicial oath that they take mean that they can and do set their prejudices on one side when judging a case. Similarly, the law supposes that, when called upon to exercise judgment in the special circumstances of a trial, in general, jurors can and do set their prejudices aside and act impartially. The recognised starting-point is, therefore, that all the individual members of a jury are presumed to be impartial until there is proof to the contrary."
60.
In our judgment, in the present case, there is no proof to the contrary. There is no reason for believing that the verdicts against either appellant were reached by reason of partiality, or bias, on the part of the jury foreman, or on the part of the jury as a whole. Applying the
Medicament
test, which we earlier adumbrated, a fair minded and informed observer would not, in the circumstances which we have described, conclude that there was a real possibility, or real danger, that this jury was biased. That being so, despite Mr Singer's attractive submissions, the appeals against conviction are dismissed.
61.
We turn to Steen's sentence. He contends that the judge paid insufficient regard to his background, good character and age and to his mother's state of health; sadly she has died since the trial. It is also said that the judge misapprehended the true extent of the fraud and sentenced Steen excessively in comparison with his co-defendants.
62.
In our judgment, none of these points is arguable. Following a trial of this length, the judge was very well placed to assess the degree of criminality and the relative culpability of the three defendants. He expressly took into account Steen's good character and his age. This was fraud on a major scale, unmitigated by any sign of remorse. The judge described Steen as the most culpable of three ruthless, cynical and greedy fraudsters, who had sought to blame everyone but himself, and was thoroughly unscrupulous, manipulative and dishonest. The sentence of six years on Steen was, in our judgment, correct. Leave to appeal against it is, accordingly, refused. | ```yaml
citation: '[2004] EWCA Crim 2341'
date: '2004-07-28'
judges:
- LORD JUSTICE ROSE
- MR JUSTICE TREACY
- SIR EDWIN JOWITT
``` |
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:
2011/4004/B3
Neutral Citation Number:
[2012] EWCA Crim 770
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM St Albans Crown Court
His Honour Judge Bright QC
T20100564
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
20/04/2012
Before :
LORD JUSTICE AIKENS
MR JUSTICE BLAKE
and
RECORDER OF REDBRIDGE
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
Respondent
- and -
M B
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Alison Ginn
(instructed by
CPS
) for the
Respondent
Patricia May
(instructed by
Wheldon Law
) for the
Appellant
Hearing date : 9th of March 2012
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Aikens :
I. Synopsis
1.
This is the judgment of the court to which all three members have contributed. The provisions of the
Sexual Offences (Amendment) Act 1992
apply to this judgment and so it will be anonymised accordingly. At the outset of the hearing on 9 March 2012 we gave leave to appeal on all the issues raised and we shall therefore refer to “the appellant” throughout this judgment.
2.
The principal issue that arises on this appeal is one of statutory construction. It is: what, within
section 4A(2)
of the
Criminal Procedure (Insanity) Act 1964
(as amended - “the 1964 Act”) constitutes “…
the act…charged against him as the offence”
when a defendant has been charged on two counts of voyeurism, contrary to
section 67(1)
of the
Sexual Offences Act 2003
(“the SOA”) and he has been declared by the trial judge to be unfit to be tried by reason of disability pursuant to
section 4(5)
and
(6)
of the 1964 Act? After the judge’s ruling that the appellant was unfit to be tried, the jury determined that the appellant had committed “
the act…charged against him as the offence”
in respect of one of the two counts of voyeurism. Two other points arise on this appeal as a result of the jury’s decision, which led the judge to impose on the appellant a two year supervision order and a Sexual Offences Prevention Order (“SOPO”). The appellant also had to register on the Sex Offenders’ Register for five years. Both the SOPO and the registration order are challenged.
3.
For convenience we have set out the provisions of
section 67(1), section 68, section 80, section 104(1), (2)
and
(3)
of the SOA and
section 4,
4A(2)
and
5
of the 1964 Act (as amended) in an Appendix to this judgment.
Sections 80
and
104
of the SOA are relevant to the second and third issues that arises on this appeal. We have also set out
sections 15
and
16
of the
Criminal Appeal Act 1968
(as amended).
4.
The case came before us on 9 March 2012 upon the referral of the application for leave to appeal to the full court by the single judge. Because the appellant had been declared by the trial judge to be suffering from a disability and so unfit to stand trial, the application for leave to appeal against the finding by the jury that the appellant had committed the acts charged against him as the offence in respect of one of the two matters charged was made pursuant to
section 15
of the
Criminal Appeal Act 1968.
The application for leave to appeal against the SOPO is brought pursuant to
section 110(1)(b)
of the SOA and
section 11
of the
Criminal Appeal Act 1968
(as amended). The appeal against the order that the appellant must register on the Sex Offenders’ Register depends upon the outcome of the appeal on the first and principal issue.
5.
After we had heard oral argument on the substance of the appeals from Mrs P May on behalf of the appellant and from Ms A Ginn on behalf of the Crown on 9 March 2012 we reserved judgment.
II.
The Facts
6.
The appellant is now 24. On 20 April 2010 he was 23 and of previous good character. On that day two young mothers, with their six year old sons, were at the Hemel Hempstead Sports Centre to take their sons for a swimming lesson. They used the family changing rooms, which have cubicles and the panels separating them have a gap between the bottom of the panels and the floor. In each case the mother alleged that whilst their son was changing into his swimming trunks the appellant’s head appeared in the gap and looked up at their son who was naked at the time. Officials were alerted and the appellant was arrested and interviewed by the police. He said that he was lying on his back in the adjoining cubicle because his back hurt.
7.
Each of the two counts in the Indictment dated 6 August 2010 alleged voyeurism contrary to
section 67(1)
of the SOA. The particulars of offence followed the same form in each count. They stated that the appellant, on 20 April 2010, “for the purpose of sexual gratification, observed [X or Y as the case might be] doing a private act, knowing that [X or Y] did not consent to being observed for [the appellant’s] sexual gratification”.
III.
The proceedings in the Crown Court and the relevant ruling of HHJ Bright QC
8.
At the Plea and Case Management Hearing in the Crown Court at St Albans on 6 September 2010 it became clear that the appellant suffered from a learning disability and autistic spectrum disorder so that there would be an issue as to whether he was fit to be tried. The PCMH was adjourned to enable psychiatric reports to be prepared. The defence instructed Dr Michael Alcock, a consultant forensic psychiatrist, and Dr Art Anderson, a consultant clinical psychologist. The CPS instructed Dr Richard Taylor, a consultant psychiatrist. Their reports agreed that the appellant suffered from an autistic spectrum disorder in the form of Asperger’s syndrome and a learning disability reflected in an overall IQ score of 66. Dr Alcock and Dr Taylor agreed that the appellant was unfit to plead or stand trial; Dr Anderson concluded that the appellant was fit to plead but was not of sufficient cognitive capacity to understand the trial process, nor instruct counsel during the trial.
9.
The matter came before HHJ Bright QC, sitting in the Crown Court at St Albans, on 6 July 2011. He had read all the doctors’ reports. He ruled, pursuant to
section 4(5)
and
(6)
of the 1964 Act, (as amended by the
Domestic Violence, Crime and Victims Act 2004
), that the appellant was not fit to plead or to stand his trial. He based his conclusion on the doctors’ reports, with which he agreed. His ruling continued:
“
Accordingly, I find the [appellant] is not fit to plead and stand his trial. Having made that finding
section 4A(2)
of the 1964 Act requires the trial of an issue by a jury as to whether they are satisfied as regards each of the counts on which the accused was to be tried that he did the act or acts or made the omission or omissions charged against him as the offence or offences. The trial of that issue in this case will now proceed.”
10.
It appears that after this ruling there was no separate consideration by the judge, as there should have been, of the question of who is the best person to be appointed by the court to put the case for the defence. As this court reiterated in
R v Norman (Leslie),
[2009] 1 Cr App R 13
,
[2008] EWCA Crim 1810
at [34] in the judgment of Thomas LJ.
this is a duty personal to the court, which must consider afresh which person should be appointed; it should not necessarily be the same person who has represented the defendant to date, because it is the responsibility of the court to be satisfied that the person appointed is the right person for this difficult task. As Thomas LJ explained in
R v Norman:
Ibid.
“The responsibility placed on the person [appointed to represent the defendant who is found to be under a disability and so unfit to be tried] is quite different from the responsibility placed on an advocate where he or she can take instructions from a client. The special position of the person so appointed is underlined by the fact that the person is remunerated not through the Criminal Defence Service but out of Central Funds. Given the responsibility that the Act places on the court, it would not be unusual if the judge needed a little time to consider who was the best person to be so appointed”.
11.
After his ruling the judge invited counsel to make submissions on the scope of the exercise which the jury would have to undertake pursuant to
section 4A(2)
of the 1964 Act; viz. what matters would the jury have to consider in order to decide whether they were satisfied that, in respect of each of the counts that the appellant was to have been tried, he “
did the act…charged against him as the offence”.
The submission of Mrs May, for the defence, was that, in order to fulfil their function according to
section 4A(2)
of the 1964 Act, the jury would have to decide whether the appellant observed each of the two young boys doing a private act “for the purpose of sexual gratification”.
Mrs May submitted that it would be anomalous if the appellant had to register on the Sex Offenders’ Register if all the jury had decided was that the appellant had observed the boys doing a private act, viz. undressing and changing into swimming trunks in a closed cubicle, and the jury had not had to determine the purpose of the appellant’s observation. Mrs May particularly emphasised the serious consequences of a finding against the appellant. Ms Ginn, for the prosecution, submitted that the jury would only have to decide whether the appellant had observed each of the two young boys doing a private act,
12.
The judge gave his ruling on the issue. We will have to consider it in more detail below because it is at the heart of the principal issue on this appeal. The essence of the judge’s decision is at page 7 – 8 of the transcript:
“
It seems to me…that all that is required for the prosecution to prove in this case is that [the appellant] on 20 April 2010 observed the relevant boy doing a private act. It seems to me that the Crown does not need to prove either that it was for the purpose of sexual gratification or that it was necessarily done knowing that the victim did not consent to being observed for sexual gratification. Those are elements which would be appropriate in any case bar a case where a particular defendant is found to be suffering from a disability which makes him unfit to plead….the Act of Parliament is, in my judgment clear that the jury’s finding is a finding in relation to the act which constitutes or would constitute the offence, not the mental elements that are attached to it”.
13.
The essence of Mrs May’s case on the appeal against the determination of the jury is that the judge was wrong to limit the scope of the jury’s investigation to the issue of whether the appellant observed either boy doing a private act. In her submission the jury were obliged to determine whether the appellant was observing the boys (doing a private act) for the purpose of sexual gratification.
IV.
The summing up and the finding of the jury on the determination
14.
Following the judge’s ruling the prosecution then called its evidence and the judge summed up the issues for the jury’s determination. In his summing up the judge said that there was no dispute that each of the two boys was doing a private act at the relevant time. He said (at page 5 of the transcript) that the key question for the jury to decide in relation to each count was “…
whether [the appellant] observed the child in question doing a private act”.
Before us Mrs May has criticised that direction on the same basis that she criticised the prior ruling.
15.
The judge directed the jury on the meaning of the word “
observe”
, which he said (page 5) meant “
deliberately watch as opposed to incidentally seeing”.
There is no complaint about that aspect of the summing up. The judge reminded the jury that it was the appellant’s case that he had incidentally seen the boys doing a private act whilst lying on his back to relieve his back pain.
16.
At page 7 the judge reminded the jury that they were not concerned to decide what was going on in the appellant’s head at the time he did whatever they found that he was engaged in doing. His summing up continued (at 7C-8B):
“You are not concerned to decide whether his motive was or was not a sexual one or whether he knew that what he was doing was wrong or knew that it was inappropriate or that it would be regarded by other people as wrong or inappropriate, that is not the issue you are hear to decide…. the mental element of what was happening so far as [the appellant] is concerned is not your concern…and for this reason you are not concerned with whether [the appellant] may have been making noises, whether they were groaning noises or any other sort of noises at the relevant time and if so why he might have been doing that of course unless you take the view which the defence might invite you that if he was making noises they were likely to be because he was suffering from back pain at the time…you are not concerned with his motive, his intention – you are concerned with what he actually did”.
17.
That passage is also criticised by Mrs May, because, she submits, it was based on the erroneous ruling of the judge.
18.
On 8 July 2011 the jury determined that the appellant had observed the boy doing a private act with regard to what had been count 2, but acquitted him in relation to the boy the subject of what had been count 1.
V.
Sentence
19.
The judge sentenced the appellant on 9 September 2011. In doing so he emphasised that he was not finding the appellant to be “
some sort of sex maniac who is a danger to the public; I don’t think that for one second”.
The judge accepted that the appellant was not to be characterised as “
predatory”
but rather as “
… simply someone who takes an interest in matters sexual it seems to me, whether the object of your intention be adult or child”.
The judge imposed a supervision order for 2 years pursuant to
section 5(1)(a)
and
5(2)(b)
of the 1964 Act. The judge also stated that, as a result of the determination of the jury and the supervision order, the appellant must register on the Sex Offenders Register for a period of 5 years. Given the conclusion of the jury and the terms of
section 80(1)(c)
of the SOA, that requirement necessarily followed. As already noted, this order is challenged on appeal.
20.
Lastly, the judge considered whether he should make a SOPO. He had jurisdiction to do so pursuant to
section 104(3)(b)
of the SOA. The judge said (at 6C-E of his sentencing remarks):
“In my judgment, and I make it perfectly plain, I entirely understand the jury’s finding but I am equally convinced that this is a case where the public need protection from your inquisitiveness in establishments where there are changing facilities, and although it may be a kind of inquisitiveness that does not always have a sexual connotation, nevertheless it seems to me that public deserve to be protected from people who behave as if they were voyeurs, and certainly your behaviour in relation to count 2 filled that particular description”.
21.
The judge therefore made a SOPO for a period of 5 years which prohibited the appellant from attending the changing rooms of either any leisure establishments or of any shop, unless accompanied by a member of his family. The appellant was also prohibited from engaging in any work or organised leisure where any child under the age of 16 was likely to come in contact with the appellant.
VI.
The grounds of appeal and the arguments of the parties.
22.
There are two grounds of appeal against the finding of the jury and one ground against sentence. The first ground against the finding is that the jury should have been instructed to consider the element of “
for the purpose of sexual gratification”
as a part of their consideration of whether the appellant had done the “
act charged as the offence”
of voyeurism, contrary to
section 67(1)
of the SOA. Mrs May argued that this element was a part of the “
act”
of the offence of which the appellant had been charged and could not be divorced as being an independent mental element.
23.
On this ground, Ms Ginn submitted that the ruling and direction of the judge to the jury were correct. She submitted that the only issue for the determination of the jury (given that it was agreed that the boy in question was, at the relevant time, doing a “
private act”
), was whether the appellant was observing the boy doing that private act. Ms Ginn accepted that the word “
observes”
in
section 67(1)
connotes a deliberate, as opposed to an accidental, action on the part of a defendant. She submitted that the judge’s direction to the jury on the meaning of “
observes
” was correct.
24.
We will call this Issue One.
25.
The second ground of appeal against the jury’s finding is that the jury did not have the full expert evidence of the prosecution and defence psychiatrists to consider in assessing whether the appellant, in acting in the way he did in the cubicle, was deliberately observing each of the two boys doing the private act. Ms May submitted that, given the disability of the appellant, they needed to have this expert evidence before they could properly determine the nature of the act done by the appellant and whether he had deliberately observed the boys.
26.
Ms Ginn submitted that the issue of whether the appellant had deliberately observed the boys was one of fact and one for the jury to determine on the evidence. It did not need any expert evidence to determine what she submitted was a straightforward question of fact.
27.
We will call this Issue Two.
28.
With regard to the SOPO, the ground of appeal is that, even if the ruling of the judge on the scope of the exercise that the jury had to undertake was correct and the finding of the jury cannot be impugned, the judge should not have imposed a SOPO. Mrs May submitted that the judge did not have material before him which would entitle him to conclude that the appellant’s behaviour was such that it was necessary to make a SOPO, for the purpose of protecting the public or any particular member of the public from serious sexual harm from the appellant, as is required by
section 104(1)(a)
of the SOA.
29.
Ms Ginn submitted that there was such material and that the judge’s exercise of his judgment in making the SOPO as he did could not be regarded as unreasonable or irrational.
30.
We will call this Issue Three.
31.
As already noted, the question of whether the appellant has to register on the Sex Offenders’ Register must depend on whether we allow the appeal on the jury’s finding, viz. Issue One.
VII.
Issue One: what constitutes “
the act…charged against [a defendant] as the offence”
when the offence in question is “voyeurism” contrary to
section 67(1)
of the SOA?
A.
Section 4 and 4A
of the
Criminal Procedure (Insanity) Act 1964: the legislative history
32.
In
R v H
[2003] 1 WLR 411
;
[2003] UKHL 1
Lord Bingham of Cornhill noted that statutes in the United Kingdom had both recognised and dealt with two allied but different problems that arise in criminal proceedings. The first problem concerns defendants whose mental state at the time of the crime was, or may have been, such as to render them irresponsible for the serious crime of which they are accused. The second concerns defendants accused of committing a serious crime who, whatever their mental state at the time of the crime, are, or might be, in such a mental state at the time of their trial that they are unfit to be tried.
See [2]
The present case concerns the second of those problems. Lord Bingham characterised the challenge which underlay all the relevant legislative provisions as being:
“…on the one hand to treat the accused person in a fair and humane way and on the other to protect the public against the risk of danger posed by a person who could not (because of insanity) be held full responsible for his conduct or could not (because of his unfitness to plead) be tried in the ordinary way to decide whether he was guilty or not”.
Ibid.
33.
Under the common law, even when insanity at the time of the alleged crime was not in issue, the question might still arise as to whether the defendant was “unfit to plead”, because he was mentally incapable of doing so at the time of the trial. The classic formulation of the issues to be considered by a jury charged with considering this issue was set out in Alderson B’s directions to the jury in
R v Pritchard.
(1836] 7 Car & P 303 at 304
That formulation was reaffirmed in
R v Podola,
[1960] 1 QB 325
at 353
in which Lord Parker CJ said the tests “
may be said to be firmly embodied in our law”.
At 353.
For present purposes, the key issue, summarising Alderson B’s direction as explained in
Podola,
can be stated as whether a defendant is of sufficient intellect to understand the course of proceedings in the trial so as to make a proper defence. In
R v Walls,
[2011] 2 Cr App R 6
Thomas LJ, giving the judgment of the court, affirmed that the
Pritchard
criteria remain the firmly established law, despite criticisms that have been made of them. He said that it was the duty of the court to consider whether the defendant is “unfit to plead” in accordance with those criteria in the light of all the evidence before it, including the expert psychiatric evidence.
See [21]
34.
When the question arises of whether a defendant is under a disability which affects his ability to be tried, the
procedure
to be followed is now laid down by the
Criminal Procedure (Insanity) Act 1964
as amended by the
Criminal Procedure (Insanity and Unfitness to Plead) Act 1991
and the
Domestic Violence, Crime and Victims Act 2004.
The latter Act removed from the jury the question of whether a defendant was fit to stand trial and placed the decision in the hands of the judge.
see
section 22(4)
of the 2004 Act which substituted “
the court without a jury
” for
“by a jury”
in
section 4(5)
of the 1964 Act as amended by the 1991 Act.
35.
The 1964 Act (as amended) is the last in a series that have dealt with the procedure to be adopted when there is an issue as to the sanity of a defendant at the time of the offence or at the time of trial. The first Act was the
Criminal Lunatics Act 1800,
whose purpose has been said to be to protect society against the possible recurrence of the dangerous conduct of an insane person.
Per Lord Diplock in
R v Sullivan
[1984] AC 156
at 172.
Under that Act if it found that a person was insane at the time of “
treason, murder or felony…and such person is acquitted”
then “…
the jury shall be required to find specially whether such person was insane
at the time of the commission of such offence,
and to declare whether such person was acquitted by them o account of such insanity…”.
In that event the person was to be ordered to be kept in “
strict custody…until His Majesty’s pleasure shall be known…”.
We have emphasised in bold certain wording because it is relevant to Issue One.
36.
In 1883 Parliament passed the
Trial of Lunatics Act. Section 2(1)
of this Act provided that:
“Where in any indictment or information any
act or omission is charged against any person as an offence,
and it is given in evidence on the trial of such person for that offence that he was insane, so as not to be responsible, according to law, for his actions at the time when the act was done or the omission made, then, if it appears to the jury before whom such person is tried
that he did the act or made the omission charged,
but was insane as aforesaid at the time when he did or made the same, the jury shall return a special verdict to the effect that the accused was guilty of the act or omission charged against him, but was insane as aforesaid at the time when he did the act or made the omission”.
[Emphasis to relevant wording added]
37.
It will be immediately apparent that the wording of the 1800 Act had not been repeated in the 1883 Act and that the new wording of “
did the act or made the omission”
is the same as that used in
section 4A(2)
of the 1964 Act, as amended, in respect of a defendant who has been determined to be under a disability and so cannot stand his trial.
38.
The
Criminal Procedure (Insanity) Act 1964
amended the form of special verdict to be brought in when a jury concluded that a defendant was insane at the time of the offence charged. However it did not alter the statutory ingredients for such a verdict, which had been laid down by the 1883 Act. The jury still had to decide whether the person did the act or made the omission charged. Therefore, the 1964 Act maintained the distinction established by the 1883 Act between the physical act or actions (or omission made) of the defendant and his state of mind at the time when he carried them out.
See
Attorney General’s Reference (No 3 of 1998) [2000] QB 401
at
408E – G.
39.
Most of the present framework for the procedure to be adopted when the question arises of whether the defendant is “unfit to plead”, or more accurately nowadays, is unfit to stand his trial, was introduced by the
Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. Sections 2
and
3
of that Act provided that new
sections 4, 4A
and
5
of the 1964 Act be substituted for the previous provisions. However, even under these new provisions the issue of a defendant’s fitness to be tried was to be determined by a jury. As already noted, the present procedure, whereby fitness to be tried is to be determined “
by the court without a jury”
was introduced by the 2004 Act.
See
section 22(4).
40.
In
Attorney General’s Reference (No 3 of 1998)
[2000] QB 401
this court had to consider what had to be proved when an inquiry was embarked upon under the 1883 Act to determine whether the defendant ‘
did the act or made the omission charged”
when insanity was assumed.
The judgment of the court was given by Judge LJ, as he then was. The judgment concluded, in a case where insanity was presumed, that the Crown had to prove:
“
(a)….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 & Hogan, Criminal Law 8
th
Ed (1996), p 29
that it must be shown 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”.
At 411F.
41.
In the course of the judgment in that case, the court commented on a recent decision of another division of this court in
R v Egan.
[1998] 1 Cr App R 121
That case had decided that where a defendant had been found unfit to be tried on a count of theft and the jury had to determine, on the evidence whether they were satisfied, for the purposes of
section 4A(2)
of the 1964 Act that the defendant had done
“the act…charged against him as the offence”,
the prosecution had to prove all the necessary ingredients of what would otherwise have been the offence of theft. In
Attorney General’s Reference (No 3 of 1998),
this court came to the conclusion that the decision in
R v Egan
was decided “
per incuriam”,
because it had neither analysed the statutory history nor the current framework of the 1964 Act; nor, in addition, had it taken account of the House of Lords’ decision in
Felstead v The King.
[1914] AC 534
.
That case had stated that, as a result of insanity, a defendant was not to be responsible according to law for the actions at the time he did the act, because, by virtue of his insanity, he could not have had the necessary mental element needed to have committed the offence: see pages 541-2.
B.
R v Antoine
[2001] 1 AC 340
42.
In
R v Antoine
the defendant was found unfit to stand trial for murder. The issues that this court
Consisting of Lord Bingham of Cornhill CJ, McKinnon and Bracewell JJ.
identified for decision were: (1) whether all the elements of murder charged against the defendant had to be established (including the mental element) for the purposes of the jury’s determination of whether the defendant had done the act charged against him as the offence; and (2) could the defence seek to prove diminished responsibility in answer to the murder charge. This court declined to conclude that
R v Egan
was decided
per incuriam
and so avoided the first question. On the second question the court concluded that it was not open to a defendant, in putting the case for the defence under
section 4A(2)
of the 1964 Act to rely on the defence of diminished responsibility within
section 2
of the
Homicide Act 1957.
The court certified only the second issue as a point of general public importance and the House of Lords gave leave to appeal on it.
43.
Although there was only one certified issue of law before it, the House of Lords heard argument on the wider question of what the Crown had to prove when a jury had to determine whether the defendant had done
“the act or made the omission charged against him as the offence”
within
section 4A(2)
of the 1964 Act. Counsel formulated this “wider question” as follows:
See page 366 of the report.
“
Where, pursuant to
section 4A(2)
of the
Criminal Procedure (Insanity) Act 1964
, a jury has to determine whether an accused did the act or made the omission charged against him as the offence, must the jury be satisfied of more than the actus reus of the offence? Must the jury be satisfied of mens rea?”
44.
Lord Hutton gave the single reasoned speech with which the other four law lords agreed. On the certified question, in his opinion
See page 368B.
the Court of Appeal had been correct to hold that the provisions of
section 2
of the 1957 Act could not apply to the hearing of a determination under
section 4A(2)
of the 1964 Act when the “
act
” charged against the defendant as the offence was murder, or, more accurately (as the defendant had a disability), unlawful killing.
45.
Lord Hutton then considered the “wider question”. He analysed the decisions in
R v Egan
and
Attorney General’s Reference (No 3 of 1998).
He opined that the former was wrongly decided and the latter was correct.
See page 372G.
He gave four principal reasons for this conclusion, which are relevant to our analysis of what constitutes “
the act
” for the purposes of
section 4A(2)
of the 1964 Act when a jury has to determine whether a defendant who has a disability has done the act charged as the offence of voyeurism.
46.
First, Lord Hutton stated
At page 372G
that the use of the words “
did the act”
in the 1883 Act, which was in contrast to the words “
committed the offence”
in the 1800 Act, was significant in considering the ambit of the words “
the act …charged against him as the offence
” in the 1964 Act. The use of those words pointed to the conclusion that the word “
act
” did not include intent. Secondly, if the word “
act
” included the mental element of specific intent in the offence of murder then it had a bizarre consequence which Parliament could not have intended. Thus a defendant who had killed someone but who was insane when he did so and was unfit to stand trial as a consequence would have to be acquitted, because the necessary mental element of the offence could not be proved because of the existence of the insanity at the time of the alleged offence.
See page 373F. This reasoning is based on the House of Lords’ previous decision of
Felstead v The King
[1914] AC 534
.
Thirdly, although the Butler Committee of 1975 on Mentally Abnormal Offenders had stated that when a defendant is found to be under a disability and there has to be a trial of the facts, “
the issues to be decided include the defendant’s state of mind”,
(1975)(Cmnd 6244) at para 10.24.
that view had not been carried into
section 4A(2)
of the 1964 Act when it was amended by the 1991 Act. This was because it was both unrealistic and contradictory to decide issues of the mental state of the defendant if the reason for him being unfit to be tried was the defendant’s very lack of a normal mental state.
See page 375C of Lord Hutton’s speech.
47.
Lastly, Lord Hutton considered that the purpose of
section 4A(2)
was:
“…
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
...”
Lord Hutton considered that the section struck 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
”.
See page 376A.
Lord Hutton did not discuss further what he meant by an “injurious act”. The problem is, therefore, in discerning what elements of the “
offence”
with which the person under a disability is charged constitutes the “injurious act” and what constitutes the mental element.
48.
However, Lord Hutton recognised that there were, in some cases, practical difficulties in distinguishing between the “act” of the crime (what he called
actus reus)
as opposed to the mental element (what he called
mens rea)
and he recognised that in some instances the “act” of the crime itself may include a mental element.
Page 376C.
Moreover, he also recognised that certain defences, such as accident, mistake and self-defence, could relate to the mental state of the defendant. How was that to be dealt with in a case where there was a determination under
section 4A(2)
where the defendant was declared unfit to stand trial because of his mental disability? Lord Hutton proposed the following solution:
“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 beyond reasonable doubt on all the evidence that the prosecution has negative that defence…..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”.
Page 377C
C.
Cases Subsequent to
R v Antoine
49.
There are two cases subsequent to
Antoine
that we should consider. These are
R v Grant
[2002] QB 1030
and
R(Young) v Central Criminal Court.
[2002] 2 Cr App R 12
; [2002] EWHC 548
R v Grant
50.
The appellant was charged with the murder of her boyfriend, whom she had stabbed after losing her temper in a quarrel. The first jury
The proceedings were before the changes made in the 2004 Act.
found her unfit to be tried by reason of disability within the 1964 Act. Before the second jury was empanelled counsel for the defence submitted that he should be allowed to put before the jury the defences of lack of intent and provocation. He also raised issues about the compatibility of the proceedings with Article 6 of the ECHR. The judge rejected those submissions and the jury found that the defendant had done “
the act…charged as the offence”.
The judge certified the question of whether the issues of lack of intent and provocation could be put to the jury in the context of a
section 4A(2)
determination was fit for appeal.
The trial judge also stated a case for the opinion of the court on the ECHR issue, with which we are not concerned.
51.
The judgment of the Court of Appeal was given by Richards J. He stated that it was clear from the decision in
Antoine
that the issue of lack of intent could not be raised by a defendant in a
section 4A(2)
determination, because that fell squarely within the territory of
mens rea.
[42]
As for the issue of provocation, Richards J noted: (1) it is only relevant if all the elements of murder have been proved; and (2) provocation is closely connected with the defendant’s state of mind because it is concerned with the effect of the deceased person’s conduct on the accused’s state of mind. He concluded that it would be “
unrealistic and contradictory”
for a jury to have to consider what effect the conduct of the deceased would be on a defendant’s state of mind when a jury had to make a determination under
section 4A(2).
[44]
Richards J noted that, for the purposes of
section 4A(2),
the distinction between
actus reus
and
mens rea
could not be regarded as clear cut following the House of Lords’ decision in
Antoine.
But he also noted that the defences that their Lordships said could be raised in the context of a
section 4A(2)
determination (if there was objective evidence to do so) all related to the
actus reus
of the offence charged. He continued:
“By contrast it is clear that their Lordships did not consider it open to the jury to consider issues of
mens rea
under
section 4A(2)
whatever the circumstances; and within that were included the issues of lack of specific intent and diminished responsibility. For the reasons already given, the same must apply to the defence of provocation”.
[45]
R(Young) v Central Criminal Court
[2002] 2 Cr App R 12
;
[2002] EWCA Crim 548
52.
In
R(Young) v Central Criminal Court,
the defendant was charged with an offence under
section 47(1)
of the
Financial Services Act 1986.
This provides: “
(1) Any person who-(a) makes a statement, promise or forecast which he knows to be misleading, false or deceptive or dishonestly conceals any material fact…is guilty of an offence if he…
conceals the facts for the purpose of inducing, or is reckless as to whether it may induce, another person…to enter or offer to enter into …an investment agreement”.
It was alleged that he, being an investment adviser to an investment fund, dishonestly concealed material facts relating to an investment in certain bonds by an investment fund. The particulars of the offence alleged that the material facts that the defendant, (as an investment adviser), dishonestly concealed were his present intention (a) to maintain a personal interest in the bonds, (b) to maintain control of the bonds, and (c) to manipulate the conversion of the bonds so as to enhance the value of his personal interest. A jury decided the defendant was unfit to be tried. The “trial” judge (Jackson J as he then was) was then asked to give a ruling on whether the second jury should consider, as part of their determination of whether the defendant did the “
act…charged as the offence”,
the defendant’s present intention as to his future conduct in relation to the bonds, as set out in the particulars of offence. Jackson J made two rulings. He ruled, first, that the words “
material fact”
in
section 47(1)
of the 1986 Act included a present intention as to future conduct and also to statements of belief.
[11] of the judgment of Rose LJ in the Divisional Court.
53.
Jackson J next ruled on whether the question of the defendant’s present intention as to his future conduct could be considered by the jury as part of their
section 4A(2)
determination of whether the defendant had done the “
acts...charged as the offence.”
He reviewed the 1964 Act and
R v Antoine.
He said the principles established were:
“
(1) So far as possible, the court’s enquiry at a
section 4A
hearing should focus upon the defendant’s actions as opposed to his state of mind; (2) this distinction is dictated by the language of
section 4A
and the social purpose which it serves; (3) however, this distinction cannot be rigidly adhered to in every case because of the divers nature of criminal offences and criminal activity”.
54.
Jackson J then applied those principles to the offence created by
section 47(1)
of the 1986 Act. He concluded that it was not possible to determine whether the defendant committed “
the acts
” alleged, which were the concealment of material facts from potential investors in the bonds, without enquiring into the three specific intentions alleged against him. But, he said, “
it is not necessary and not appropriate to consider whether the defendant had the
mens rea
which is set out in
section 47(1)
of the [1986 Act]”.
He therefore concluded that, on the
section 4A(2)
determination, the prosecution was entitled to adduce evidence that the defendant did, at the relevant time, have the three intentions identified above; but the jury was not required or permitted to determine whether the defendant had acted dishonestly, or whether he was “
acting for the purpose of inducing or being reckless as to whether he might induce the [investment fund managers] to make an investment”.
Set out at [12] of Rose LJ’s judgment.
55.
The matter then went to the Divisional Court. The first judgment was given by Rose LJ. He agreed with Jackson J’s analysis.
[35]
Stanley Burnton J agreed with Rose LJ. Leveson J gave a further judgment. He said:
“
A consideration of whether the defendant did the act, or made the omission charged against him as the offence which is required by
section 4A(2)
of [the 1964 Act] must, therefore, in the context of this case, go beyond purely physical acts. Indeed, the
actus reus
of this offence is far wider than that; as Rose LJ has observed, it involves concealing a positive state of affairs, namely the nature of the fixed intention which this defendant had at the time”.
56.
The judgments therefore distinguish between four elements. First, there are what Leveson J describes as the “
purely physical acts”
involved. In that case those must include omissions, because the
“purely physical acts”
must refer to what facts the defendant did state to the potential investor and what facts he omitted to state. Secondly, there are the “present intentions” of the defendant at the time he stated some facts and omitted others. Those “present intentions” are facts, as Jackson J and the Divisional Court made clear. But, thirdly, in the context of the
section 47(1)
offence, the defendant’s concealment of those intentions is to be regarded, for the purposes of
section 4A(2)
of the 1964 Act as part of the “
act”
done or the
“omission”
made that was charged against him. Lastly, there are the issues of whether the concealment was done dishonestly and the issue of the defendant’s purpose in concealing his present intentions. They are not part of the “
acts”
or
“omissions”
for the purpose of
section 4A(2)
. They are part of the mental element of the offence charged.
D.
Further commentary on the scope of
section 4A(2)
57.
Smith & Hogan’s Criminal Law
13
th
Ed (2011)
criticises Lord Hutton’s suggestion in
R v Antoine
, when considering the “wider question”, that a jury should determine issues of mistake, self-defence or accident if there was “objective evidence” which raised one of those issues. The editors submit that those defences are simply denials of
mens rea,
and suggest that if those issues can be determined then any other evidence suggesting an absence of
mens rea
(other than that suggesting a defect of mind) should, logically, be considered.
Page 291.
As they point out, the irony of the
section 4A(2)
procedure, which aims to protect defendants with a disability from a full criminal trial and an enquiry into their mental state which they cannot defend (because they are unfit to be tried and so cannot give instructions to their lawyers and cannot, save in exceptional circumstances, give evidence) means that the system might place them in a worse position than they would otherwise be.
Page 292.
58.
The Law Commission’s recent Consultation Paper on “
Unfitness to Plead”
Consultation Paper No 197 of October 2010
also highlights the difficulty in separating what it calls the “conduct element” of an offence from the “fault element” of an offence. It points out, with obvious correctness, that the lawfulness or unlawfulness of what an accused does may depend on his state of mind.
Para 6.7
This must mean that the focus of any enquiry to decide what constitutes the “
act”
or “
omission”
of a particular offence for the purposes of a determination pursuant to
section 4A(2)
of the 1964 Act must be upon what Lord Hutton called in
R v Antoine
At page 375H
the “
injurious act”
or group of acts – or omissions, which would constitute a crime if committed with the necessary
mens rea.
E.
What are the elements of the offence of “voyeurism” contrary to
section 67(1)
of the SOA?
59.
There are four elements which would have to be proved by the prosecution in a normal criminal trial of this offence. First, the defendant must “
observe”
another person doing a “
private act”,
a term which is itself defined by
section 68(1)
of the SOA. The verb “
observes
” is not further defined in the SOA but we think it must connote a deliberate decision on the part of the defendant to look at someone doing a “
private act”
, as opposed to an accidental perception of someone doing a “
private act”.
“
Observes”
must also exclude a careless and, we think, reckless perception.
Secondly, the other person must be doing a “
private act”.
The relevant acts or states of affairs are defined in
section 68(1)(a), (b)
and
(c),
but before they are “
private acts”
for the purposes of
section 67(1),
the relevant act or state of affairs has to take place in a “
place which, in the circumstances, would reasonably be expected to provide privacy”.
Whether a particular place is such would appear to be an objective test.
60.
Thirdly, the defendant has to observe the other person doing a private act “
for the purpose of obtaining sexual gratification”.
It is clear from the use of the word “
he”
and “
his”
in
section 67(1)(b)
that the purpose of the deliberate observation of the private act by the defendant has to be his own “
sexual gratification”,
not someone else’s sexual gratification.
This “purpose” can only be the result of the defendant’s own (subjective) thought process.
Compare
R v Head:
[2008] QB 43
at [15] per Hughes LJ in relation to
section 3
of the SOA.
It is as if he asked: “Am I deliberately observing this person doing a “private act” for a specific purpose? Yes; for my own sexual gratification”. It seems to be irrelevant whether any sexual gratification is actually obtained by the defendant, although proof that it had been would be evidence of the purpose of the deliberate observation.
61.
Lastly, the prosecution must prove that the defendant “
knows that the other person does not consent to being observed for [the defendant’s] sexual gratification”.
This must involve proof of a specific state of mind of the defendant, viz. his actual knowledge that the other person does not consent to being observed (deliberately) by the defendant for the specific purpose of the defendant obtaining sexual gratification from that observation.
F.
What constitutes the “
act…charged against [the defendant] as the offence”
within
section 4A(2)
of the 1964 Act when the offence concerned is “voyeurism”, contrary to
section 67(1)
of the SOA?
62.
As a preliminary, we have decided that despite the widespread use in other cases of the Latin tags “
actus reus”
and “
mens rea”
as a means of isolating and defining what, for a particular offence, constitutes the “
act...charged against[the defendant] as the offence”
for the purposes of
section 4A(2)
of the 1964 Act, we would prefer not to do so. The Latin tags are no more precise than the English expressions. The statute uses ordinary English words and their meaning is a matter of interpretation of the statutory wording itself. Substituting imprecise terms in a foreign language does not facilitate the resolution of the present problem.
63.
Secondly, we note that the act of deliberately observing a person naked or in their underwear, even if they were in a private place, was not of itself criminal before the SOA 2003. Even if such an act was done with the purpose of obtaining sexual gratification there was no pre-existing statutory offence of “voyeurism”, although there were examples of voyeuristic activity being charged as the common law offence of outraging public decency
The elements of that offence are different. The ambit of the offence was exhaustively considered in
R v
Hamilton
[2008] QB 224
.
or insulting behaviour under
section 5
of the
Public Order Act
.
See the examples given in
Rook & Ward on Sexual Offences Law and Practice 4
th
Ed (2010) page 604 footnote 22.
If we ask: what are the social mischiefs which the new offence of voyeurism was created to tackle, we think the answer must be, first, the anti-social nature of deliberate observation by a person of another doing intimate acts in private, where the purpose of the observation is to obtain sexual gratification for the observer and, secondly, the fact that this activity has been linked to more serious offending behaviour by the observer.
See
Rook & Ward (op cit) para 14.15 page 604.
64.
It seems to us, therefore, that the link between deliberate observation and the purpose of sexual gratification of the observer is central to the statutory offence of voyeurism. To use Lord Hutton’s phrase, it is that purpose which turns the deliberate observation of another doing an intimate act (such as undressing) in private into an “injurious act”. We have to accept that enquiring into someone’s purpose for doing something is to enquire into that person’s state of mind when he did the relevant act. However, a person’s state of mind is, of course, just as much a fact as the outward act of deliberate observation and, in this case at least, the creation of the state of mind must be the result of a positive thought process by the observer. For the offence of voyeurism, these two actions, the one aimed at the outside world and the other going on in the consciousness of the observer, have to go together; the deliberate observation must be done simultaneously with the specific, albeit subjective, purpose of obtaining sexual gratification.
65.
If that is so, then we must conclude that, in the case of an offence of voyeurism under
section 67(1)
of the SOA, the relevant “
act…charged as the offence”
of the purposes of
section 4A(2)
is that of deliberate observation of another doing a private act where the observer does so for the specific purpose of the observer obtaining sexual gratification. That omnibus activity is the “injurious act”. Although the activity has two components, they are indissoluble; together they are the relevant “
act
”.
66.
As for the further element in the offence of voyeurism, the observer’s knowledge that the person observed does not consent to being observed for the purposes of the observer’s sexual gratification, that is not directly linked to the outward component of the “
act”.
It refers to the state of mind that the observer must have, but it is not the reason for the observation. Accordingly, for the purposes of
section 4A(2),
we have concluded that this element of the offence is not a part of the “
act…charged as the offence”
and so is not something the jury will be concerned to determine.
67.
We think that this conclusion is consistent with the social purpose of
section 4A
of the 1964 Act as identified by Lord Hutton in
R v Antoine
and which we have quoted above. If all that a jury had to determine was whether a person deliberately observed another doing a private act, then the consequence would be that the defendant would have to be dealt with in accordance with
section 5
of the 1964 Act. So he could be subject to a hospital order with or without a restriction order. He would be have to register on the Sex Offenders Register:
section 80(1)(c)
of the SOA. He could be the subject of a SOPO, as happened in this case. In our view, although a person observing another doing a private act can be regarded as an unpleasant nuisance, there is not the same pressing social need to protect the public from him as there would be if it were proved that the observation was done for the specific purpose of the observer’s sexual gratification.
68.
We think that our conclusion is also consistent with the approach of this court in
R(Young) v Central Criminal Court.
There the key outward act of the defendant was an omission: he failed to state material facts to the potential investor. But, as in the present case, these outward failures had to be indissolubly linked to the defendant’s state of mind which gave rise to the outward failure, viz. the defendant’s present intentions as to his future activities. As Leveson J put it: the physical act concealed a “
positive state of affairs….the fixed intention that the defendant had at the time”.
G.
Consequences of our conclusion on Issue One
69.
It must follow that the judge’s ruling that the jury need only determine whether the appellant deliberately observed each of the two boys undressing in their private cubicle was wrong as a matter of law. So, too, was his direction to the jury to the same effect. Accordingly the determination of the jury on what had been count two was based on a wrong direction of law and the determination must be unsafe. The appeal must be allowed on this ground alone.
70.
Section 16(4)
of the
Criminal Appeal Act 1968
stipulates that where this court allows an appeal, made under
section 15
of that Act, against a finding that the appellant who is under a disability did the act charged against him, then this court must quash the finding and must direct that a verdict of acquittal be recorded. As this court noted in
R v Norman (Leslie),
[2009] 1 Cr App R 13
at [31].
section 16(4)
of the 1968 Act does not permit an application for a retrial in these circumstances. This appears to be a gap in the legislation: see
R v McKenzie.
[2011] EWCA Crim 1550
at [1]
The consequence is we have no power to consider whether we should order a retrial.
71.
Although there is now no need to determine the other two issues that arise on this appeal, we will give our views shortly on them.
VIII.
Issue Two: Expert Evidence
72.
The argument of Mrs May was, as we understood it, that because the appellant had been found to be under a disability and so he would, in practice, be unable to give evidence and could not, by definition, give coherent instructions to his advisers, the only way that the jury could consider his side of the argument on what his state of mind might be was if expert evidence could be adduced on that topic. In a somewhat analogous situation in
R v Norman (Leslie)
this court expressed some sympathy for that argument. In the present case the expert evidence could only go to the question of whether or not the appellant’s state of mind was such that he was deliberately observing the two boys for the purpose of the appellant’s own sexual gratification. We doubt that expert evidence would be useful to the jury on that issue, which, ultimately, is a question of fact for the jury’s determination. However, we think that the issue should be left open for argument in a future case when more focused attention can be give to it in the light of the particular relevant facts of the case.
IX.
Issue Three: was it correct to make a SOPO?
73.
The offence of voyeurism is one of those listed in
Schedule 3
of SOA for the purposes of
Part 2
of the Act if, as here, the victim of the offence was under 18. That means that the judge was right to conclude that, given the jury’s finding, the applicant had to comply with the notification requirements set out in
section 82
of the Act (see
section 80(1) (c)
of the Act) for a period of 5 years. Such a conclusion results from the direct application of the statutory provisions, not from any decision of the sentencer.
74.
The same conclusion does not automatically follow in relation to making a SOPO. Jurisdiction to make a SOPO exists in relation to such a
Schedule 3
offence if, as here, the judge found that the applicant was “
under a disability
” and the jury, in relation to what had been count 2, found that the applicant “
had done the act charged against him in respect of such an offence
”.
Section 104(3)(b).
However, a SOPO could still only be made if the Court “
is satisfied that it is necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant
”.
Section104(1)(b).
“
Serious sexual harm
” for the purposes of
section 104
is defined by reference to “serious physical or psychological harm”.
R v Rampley
[2007] 1 Cr App R (S) 87
; followed in
R v Richards
[2007] 1 Cr App R(S) 120
;
Archbold Para 20-324a
75.
The Judge dealt with the appropriateness of making such a SOPO at 6D-E of his sentencing remarks. He said that he was:
“…convinced that this is a case where the public need protection from your inquisitiveness in establishments where there are changing facilities and although it may be a kind of inquisitiveness that does not always have a sexual connotation, nevertheless it seems to me the public deserve to be protected from people who behave as if they are voyeurs, and certainly your behaviour in relation to Count 2 fitted that description.”
76.
In contrast to the “dangerousness” provisions of the CJA 2003, there is no need for a judicial finding that the risk of serious sexual harm in the future has to be a “
significant risk
”. But it seems to us that there has to be a finding by the judge that it is “
necessary
” to protect the public not simply from “
inquisitiveness in establishments where there are changing facilities
” but from future “
serious sexual physical or psychological harm
”. In this case the judge made no such finding. Indeed, at page 5C-D of the transcript he said of the appellant that there was no “
sexual deviancy in any sense at all
” and there was no suggestion that he was “
a predator or that [he had] predatory interests in children
.”
77.
The only reference in the PSR to the Police application for a SOPO said that it “
may well be of assistance
” because the applicant had “
very little insight or understanding of his behaviour.
” In Dr. Alcock’s psychiatric report at paragraph 9.10 the writer stated that he did not believe that the applicant “
presents any meaningful risk or harm to the public whether by way of sexualised offending or otherwise
”. In Dr. Ishweran’s report at paragraph 7.4 he wrote that “
there is no evidence to indicate that he {the applicant} had any sexually deviant interest or exaggerated sexual urge
”. At paragraph 7.8 he stated that there was no indication that there was an escalating pattern of sexualised and offending behaviour as it could be only a phase he was going through.
78.
In short, in our view, there was no proper basis for making a SOPO at all in this case. Therefore, even if we had not allowed the appeal on Issue One, we would have allowed the appeal on Issue Three, pursuant to
section 110(1)(b)
of the SOA.
X.
Disposal
79.
For the reasons give above under Issue One, we allow the appeal against the finding that the appellant did the “
act…charged against him”
in respect of what had been count 2. We quash that finding. Furthermore, pursuant to
section 16(4)
of the
Criminal Appeal Act 1968,
we direct a verdict of acquittal of the appellant be recorded in respect of that matter. In view of the fact that there is no statutory power to consider whether to order a retrial, given of the terms of
section 16(4)
of the 1968 Act, and also because there may be public concern about the outcome of this appeal, we feel we should emphasise four things: first, even on the limited directions of the judge, the jury determined that they were not satisfied that the appellant did deliberately look at one of the two young boys. Secondly, as for the other boy, there was no finding whatsoever that the appellant observed the boy for the purpose of the appellant’s sexual gratification. Thirdly, neither the report writers nor the judge considered the appellant to be, in any way, a sexual predator. Indeed the judge went out of his way to say the opposite. Fourthly, the appellant is - and is entitled to be treated as - an autistic young man who has had and continues to have a good character.
Appendix
Relevant provisions of the Sexual Offences Act 2003 ; Criminal Procedure (Insanity) Act 1964 (as amended) and Criminal Appeals Act 1968 (as amended)
Sexual Offences Act 2003
67 Voyeurism
.
(1)
A person commits an offence if—
(a) for the purpose of obtaining sexual gratification, he observes another person doing a private act, and
(b) he knows that the other person does not consent to being observed for his sexual gratification.
……..
68 Voyeurism: interpretation
(1)
For the purposes of section 67, a person is doing a private act if the person is in a place which, in the circumstances, would reasonably be expected to provide privacy, and-
(a)
the person’s genitals, buttocks or breasts are exposed or covered only with underwear,
(b) the person is using a lavatory, or
The person is doing a sexual act that is not of a kind orindarily done in public.
(2)
In section 67, “structure” includes a tent, vehicle or vessel or other temporary or movable structure.
80 Persons becoming subject to notification requirements
(1)A person is subject to the notification requirements of this Part for the period set out in section 82 (“the notification period”) if—
(a)he is convicted of an offence listed in Schedule 3;
(b)he is found not guilty of such an offence by reason of insanity;
(c)he is found to be under a disability and to have done the act charged against him in respect of such an offence; or
(d)in England and Wales or Northern Ireland, he is cautioned in respect of such an offence.
104 Sexual offences prevention orders: applications and grounds
(1)
A court may make an order under this section in respect of a person (“the defendant”) where any of subsections (2) to (4) applies to the defendant and-
(a)
……
(b)
in any other case, it is satisfied that it is necessary to make such an order, for the purpose of protecting the public or any particular member o the public from serious sexual harm from the defendant.
(2)
This subsection applies to the defendant where the court deals with him in srepcte of an offence listed in Schedule 3 or 5;
(3)
This subsection applies to the defendant where the court deals with him in respect of a finding—
(a) that he is not guilty of an offence listed in Schedule 3 or 5 by reason of insanity, or
(b) that he is under a disability and has done the act charged against him in respect of such an offence.
…………………….
Criminal Procedure (Insanity) Act 1964 (as amended)
4 Finding of unfitness to plead
.
(1) This section applies where on the trial of a person the question arises (at the instance of the defence or otherwise) whether the accused is under a disability, that is to say, under any disability such that apart from this Act it would constitute a bar to his being tried.
(2) If, having regard to the nature of the supposed disability, the court are of opinion that it is expedient to do so and in the interests of the accused, they may postpone consideration of the question of fitness to be tried until any time up to the opening of the case for the defence.
(3) If, before the question of fitness to be tried falls to be determined, the jury return a verdict of acquittal on the count or each of the counts on which the accused is being tried, that question shall not be determined.
(4) Subject to subsections (2) and (3) above, the question of fitness to be tried shall be determined as soon as it arises.
(5) The question of fitness to be tried shall be determined by the court without a jury.
(6) The court shall not make a determination under subsection (5) above except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved.
4A Finding that the accused did the act or made the omission charged against him.
(1) This section applies where in accordance with
section 4(5)
above it is determined by a court that the accused is under a disability.
(2) The trial shall not proceed or further proceed but it shall be determined by a jury—
(a) on the evidence (if any) already given in the trial; and
(b) on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court under this section to put the case for the defence,
whether they are satisfied, as respects the count or each of the counts on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence.
(3) If as respects that count or any of those counts the jury are satisfied as mentioned in subsection (2) above, they shall make a finding that the accused did the act or made the omission charged against him.
(4) If as respects that count or any of those counts the jury are not so satisfied, they shall return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion.
(5) Where the question of disability was determined after arraignment of the accused, the determination under subsection (2) is to be made by the jury by whom he was being tried.
5 Powers to deal with persons not guilty by reason of insanity or unfit to plead etc
(1) This section applies where–
(a) a special verdict is returned that the accused is not guilty by reason of insanity; or
(b) findings have been made that the accused is under a disability and that he did the act or made the omission charged against him.
(2) The court shall make in respect of the accused–
(a) a hospital order (with or without a restriction order);
(b) a supervision order; or
(c) an order for his absolute discharge.
(3) Where–
(a) the offence to which the special verdict or the findings relate is an offence the sentence for which is fixed by law, and
(b) the court have power to make a hospital order,
the court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection).
(4) In this section–
“hospital order”has the meaning given in
section 37
of the
Mental Health Act 1983
;
“restriction order”has the meaning given to it by
section 41
of that Act;
“supervision order”has the meaning given in
Part 1 of Schedule 1A
to this Act.
Criminal Appeal Act (1968)
15 Right of appeal against finding of disability.
(1) Where there has been a determination under section 4 of the
M1
Criminal Procedure (Insanity) Act 1964 of the question of a person’s fitness to be tried, and the jury has returned findings that he is under a disability and that he did the act or made the omission charged against him, the person may appeal to the Court of Appeal against either or both of those findings .
http://www.legislation.gov.uk/ukpga/1968/19/section/15 - commentary-c1424545#commentary-c1424545
(2) An appeal under this section lies only—
(a) with the leave of the Court of Appeal; or
(b) if the judge of the court of trial grants a certificate that the case is fit for appeal.
16.— Disposal of appeal under s. 15.
(1) The Court of Appeal—
(a) shall allow an appeal under
section 15
of this Act against a finding if they think that the finding is unsafe; and
(b) shall dismiss such an appeal in any other case.
……
(3) Where the Court of Appeal allow an appeal under
section 15
of this Act against a finding that the appellant is under a disability—
(a) the appellant may be tried accordingly for the offence with which he was charged; and
(b) the Court may, subject to
section 25
of the
Criminal Justice and Public Order Act 1994
make such orders as appear to them necessary or expedient pending any such trial for his custody, release on bail or continued detention under the
Mental Health Act 1983
;
and
Schedule 3
to this Act has effect for applying provisions in
Part III
of that Act to persons in whose case an order is made by the Court under this subsection.
(4) Where, otherwise than in a case falling within subsection (3) above, the Court of Appeal allow an appeal under
section 15
of this Act against a finding that the appellant did the act or made the omission charged against him, the Court shall, in addition to quashing the finding, direct a verdict of acquittal to be recorded (but not a verdict of not guilty by reason of insanity). | ```yaml
citation: '[2012] EWCA Crim 770'
date: '2012-04-20'
judges:
- LORD JUSTICE AIKENS
- MR JUSTICE BLAKE
``` |
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:
200801475/C5
Neutral Citation Number:
[2009] EWCA Crim 1085
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Wednesday, 20th May 2009
B e f o r e
:
LORD JUSTICE HUGHES
(VICE PRESIDENT OF THE CACD)
MR JUSTICE HOLROYDE
SIR CHRISTOPHER HOLLAND
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
PARVIZ KHAN
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr M Wolkind QC
appeared on behalf of the
Applicant
Mr D Atkinson
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE HUGHES: Parviz Khan renews his application for leave to appeal against sentence for terrorist offences.
2.
He had pleaded guilty to four counts. The first, count 1, charged him with engaging in conduct with the intention to commit acts of terrorism, contrary to
section 5
of the
Terrorism Act 2006
. That concerned what was referred to as "the soldier plot". Count 3 charged him with a similar offence. That concerned the supply of equipment to the Pakistan/Afghanistan border. Then there were two counts (counts 4 and 5) of possession of documents or records likely to be useful to a person committing or preparing acts of terrorism. Those were offences contrary to
section 58(1)
(b) of the
Terrorism Act 2000
. They were documents, in this case, in digital form, not unfamiliar to courts dealing with these offences. One was entitled "How do I prepare myself for Jihad" and the other was "The encyclopedia of Jihad". For those several offences the judge passed a life sentence, with a specified minimum term of 14 years. We will come, in a moment, to how that was made up. That sentence was passed following the defendant's plea of guilty.
3.
The defendant was 37. He had no previous convictions. He had been under surveillance for approximately 9 months and his conversations had been monitored. His own words formed the substantial part of the evidence against him. In addition, the sentencing judge, Henriques J, had tried two other men for associated offences. He had accordingly had abundant opportunity to immerse himself in the material.
4.
That material demonstrated that Khan was at the centre of a group of terrorists or would-be terrorists in Birmingham. The judge in due course described him as a man "who has the most violent and extreme Islamist views. A fanatic." The judge gave chapter and verse for the reasons for reaching that conclusion. We need say no more about it because, realistically, Mr Wolkind QC, who appears for him, accepts that the judge was entitled to come to that view. This was a man whose self-appointed role was a leadership and recruiting one. He set out to energise the others in terrorist cause.
5.
The soldier plot charged in count 1 was a plot to identify and then kidnap a Muslim serving in the British Army, take him to a suitable place, behead him in front of the camera and make a film to be distributed to the news networks of the world. The object, as the defendant was heard to say, was to undermine morale in the British Forces and specifically to deter others, especially those of Muslim faith, from serving in those forces. It was also to strike a political blow at the government.
6.
The substance of Mr Wolkind's succinct and well-targeted submissions is this. This was a plot which had still to identify the unfortunate victim of the design. No soldier had yet been identified. Says Mr Wolkind, that means that the sentence which has been passed is too long. That no soldier had been identified seems to be correct. That may be because the others whom Khan had tried to interest in his plot did not share his determination. But he had worked out what it was to be done. He had a plan of action. He had asked two or three others to assist him. One was a co-accused call Gassama, whom it is clear this defendant did his utmost to encourage to identify a suitable Muslim soldier from a group of men of Gambian origin who Gassama could find out about. The defendant had decided that he would need the target's identity card or identity tags in order to demonstrate to the world, through the film, who it was who had been executed in this manner. He had decided how to ensnare the soldier and how to kidnap him and he had been determined to use one of a number of garages to which he and his confederates had access as the place of execution. The transcript of the defendant's conversation with Gassama demonstrates that Gassama was speaking of having identified the home of a suitable target. Whether in fact he had done so or not does remain unclear. There was some discussion in the court below, and has been here, as to whether the defendant and Gassama spoke of the as yet unidentified target by use of a code name "Samson". So far as we can see, it really makes very little difference whether they did or did not.
7.
Count 3 was a separate but still very serious activity. It covered a series of shipments to Pakistan of equipment designed for use by Al-Qaeda irregular fighters there and no doubt across the border in Afghanistan. What was sent were not weapons, but there was probably little shortage of those in that area; what was sent was equipment which would be in short supply there: range finders; battery chargers; fire accelerants that could be used in detonators; computer peripherals; flash lights; compasses; medical kits and the like. The list was a long one and the volume of material considerable. There were four shipments, the last two nearly a ton and half a ton in metric weight. The judge, who had studied the surveillance evidence and the tapes of conversation, observed, with some justice, that a very large part of the defendant's life must have been taken up in shopping and collating the equipment. In addition to that he also sent money totalling just under £8,500.
8.
The appellant's written grounds challenge the question of whether a life sentence was warranted at all. But that is not the basis on which Mr Wolkind has here addressed us. It is enough to say that this case did satisfy the well-known test for the imposition of a life sentence, set out in
R v Hodgson
(1968) 52 Cr App R(S) 113 and subsequent cases. This defendant had committed very grave offences and he represented a risk of very grave harm for a period which could not reliably be determined. For all the reasons explained by Lord Phillips in
R v Barot
[2008] 1 Cr App R(S) 31, a man with this kind of fanatical determination is clearly in that category.
9.
Mr Wolkind's submission is simply that the specified minimum term, based on notional determinate terms for the individual counts is too long. The judge arrived at his figure of 14 years in this way. In relation to the soldier plot (count 1) he postulated a notional determinate term of 18 years. That was after plea, so it would have been 27 or thereabouts after trial. In relation to the equipment supplied (count 3), he postulated a notional determinate term of 8 years. That would have been approximately 12 or thereabouts after trial. In relation to the possession of the Jihadist documents, he postulated a notional determinate term of two-and-a-half years, something like three-and-a-half to 4 perhaps after trial.
10.
In accordance with the decision of this court in
R v O'Brien
[2007] 1 WLR 833
, the judge took into account the fact that there would have been consecutive sentences in relation to counts 3, 4, and 5 in arriving at his minimum term. That was correct, as is conceded.
11.
In the end this case depends upon the proposition advanced by Mr Wolkind that because no specific soldier had been identified, a determinate term overall of 28 years is simply too long. We accept, of course, that it would have been more serious yet if a soldier had been identified and still more if the plot had advanced to the stage of setting out on a particular day to execute a kidnap. But this is an offence which, had it been carried out, would have called, in accordance with schedule 21 to the Criminal Justice Act, for a whole life sentence.
12.
In
Barot
, where the plot was, of course one for mass murder, although, contrary to the defendant's view, it was rather ineffective, a specified determinate term of 30 years upon a very late plea, was imposed by this court. We are unable to say that the judge's sentence of 14 years was too long and in those circumstances, this application must be refused.
13.
MR WOLKIND: May it please, my Lord. Notwithstanding the court's ruling, would you be kind enough to consider granting a representation order to cover my appearance and preparation? You do have that power and it would have the attractive effect of putting us on an equal footing with Mr Atkinson who appears instructed and funded by the Crown Prosecution Service. Other nice courts have done so in this situation and I invite you please to consider.
14.
LORD JUSTICE HUGHES: It would be entirely contrary to the usual practice of this court, would it not?
15.
MR WOLKIND: Actually, the first time it happened I was surprised. There was a group of lost co-defending counsel who got up and asked and the court said they could and I learnt from that.
16.
LORD JUSTICE HUGHES: It is always worth asking.
17.
MR WOLKIND: I did not take a note of the details. I do not think it was my Lord.
18.
LORD JUSTICE HUGHES: No, it probably was not I am afraid.
19.
MR WOLKIND: I have seen it on one other occasion. I wondered if the slight difference might be that my opponent comes here fully instructed. It is a bit odd in a way.
20.
LORD JUSTICE HUGHES: That has been occasioned by the application. We understand it and it is very charmingly put.
21.
MR WOLKIND: Keep it as an exception.
(Pause)
22.
LORD JUSTICE HUGHES: I am afraid not, Mr Wolkind. Thank you very much indeed for your help though. | ```yaml
citation: '[2009] EWCA Crim 1085'
date: '2009-05-20'
judges:
- LORD JUSTICE HUGHES
- MR JUSTICE HOLROYDE
- 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}
======
| Neutral Citation Number:
[2008] EWCA Crim 3238
No:
200800931 C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Thursday, 18 December 2008
B e f o r e
:
LORD JUSTICE HOOPER
MR JUSTICE FORBES
MR JUSTICE PITCHFORD
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
ANTHONY LASCELLES LAFAYETTE
- - - - - - - - - - - - - - - - - - - - -
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.R.B Whitehouse QC
appeared on behalf of the
Appellant
Mr P.E Kyte QC
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE HOOPER: On 31 January 2008 at the Central Criminal Court (the Common Serjeant of London) the appellant was convicted of murder and sentenced to life imprisonment with a minimum term of 14 years. It was ordered that the 374 spent remanded in custody should count towards sentence.
2.
He appeals against conviction by leave of the full Court, which also referred his application for leave to appeal against sentence. At the conclusion of the hearing we announced that the appeal against conviction was dismissed and that we reserved our decision on the application for permission to appeal sentence. We now give our reasons.
Summary of the facts
3.
On the morning of Saturday 20 January 2007, shortly after 6.30am, the deceased, Michael Edwards aged 29, was fatally stabbed with a kitchen knife.
4.
The facts leading up to the deceased's death were as follows:
a)
Michael Edwards and his partner, Shaumaine Richards, both crack-cocaine addicts, had spent the later part of the day on Friday 19 January 2007 obtaining funds to buy drugs. They used a variety of methods including two robberies, during which Michael Edwards had a screwdriver. The other robbery was of a female drugs dealer.
b)
After raising some money the deceased along with Louise Hutt, another crack-cocaine addict, and Azroy Dawes, an alleged 'good friend' of the deceased, arranged to go to an address in Tulse Hill to buy some drugs. The flat was that of Samantha Daley, the appellant's partner. The deceased was observed at this stage to appear 'desperate' for drugs, by his companion Louise Hutt.
c)
The deceased made a telephone call apparently to the appellant, which went straight to his voicemail, at 6.30am on the Saturday.
d)
The deceased, Azroy Dawes, and Louise Hutt arrived at the door of the flat at 20 Poullett House. The deceased began shouting loudly saying that he wanted drugs. The appellant and his partner, Sam Daley, annoyed at being awoken, came to the door. Sam Daley told Louise Hutt to move away. She did so and waited at the end of the corridor, at the top of the stairs, and away from the doorway into the flat.
The struggle between the appellant and the deceased
5.
A struggle ensued between the appellant and the deceased and Azroy Dawes, on the prosecution's case, was heard to say, 'There was no need to do that'. A knife was produced, which was the weapon that killed the deceased. In determining the guilt of the appellant at trial, the question which the jury had to resolve was, in effect: 'Who produced the knife?'.
6.
In returning a guilty verdict at trial, the jury necessarily decided that it was the appellant who had taken the knife from the flat, contrary to his claim that it was the deceased who produced the knife and that in 'self defence' the appellant had grabbed the deceased's hands and accidentally caused the knife to pierce Mr. Edward's body.
The events after the altercation in the doorway to 20 Poullett House
7.
Azroy Dawes fled the scene, as did Louise Hutt, who saw the deceased leave the flat with a gash in his neck. The deceased managed to walk 600 metres before he collapsed in the street and died.
8.
The appellant and his partner, Sam Daley, left the flat in Poullett House. On their way to the taxi rank, the appellant was seen on CCTV at 6.47am (within minutes of the killing), bending over a drain in the street, where the knife was later found. It was his case that he found the knife on leaving the flat.
9.
The appellant and Sam Daley then went and spent two days in a Clapham hotel, having given a false name and address.
10.
The appellant turned himself in to the Police at Sutton Police Station on Monday 22 January 2008. In interview he claimed that he had acted in self-defence and in defence of his girlfriend and her property, against an attack by the deceased. The appellant made no mention of the knife and the fact that he had hidden it down a drain, in interview with the police, and only admitted to having done so when evidence from the CCTV was adduced, some time later. In interview the appellant, given that he was the party who had been attacked, gave no reason as to why he and Samantha Daley fled. Only in evidence did the appellant say that he had fled because of a conviction for wounding with intent in 1985. He said that he thought that, because of the conviction, he would not be believed when he said that the death had been an accident during the course of a struggle.
11.
On the prosecution's case threats and inducements were made on behalf of the appellant towards prosecution witnesses.
12.
The appellant's defence statement read, in part, as follows.
"The defendant and Mr. Edwards argued. Mr. Edwards shouted, 'I want some fucking money. I want fucking drugs'. The defendant told Edwards that he didn't have money or drugs and asked him why he was at his door at that time of the morning. The defendant believed that Mr. Edwards had come with others to rob him. Michael Edwards was still shouting. There was a struggle between Mr. Edwards and the defendant during which Mr. Edwards' right hand went behind his back. Edwards then raised his right hand in which he held a knife. Edwards started to bring the knife down towards the defendant. The defendant then shouted to Samantha Daley to get back inside as he was worried about her safety. The defendant used his left hand to grab Mr. Edwards' right wrist. He used his right hand to grab Edwards' left wrist. The defendant tried to stop Edwards from using the knife to stab him. The knife was close to Edwards' shoulder and at some point during the altercation, the knife pierced Edwards' body. Thereafter, Mr. Edwards, the two other black men and the white woman walked quickly down the corridor. The defendant ran inside the flat and locked the door. He told Samantha Daley to get dressed as he feared a reprisal attack. Shortly thereafter, Miss Daley and the defendant left 20 Poullett House. The defendant saw the knife on the floor by the railing by the first staircase, picked it up and took it with him. He and Samantha Daley walked past the first staircase and walked to the second staircase in order to exit the main building. En route to the nearest cab office, the defendant dropped the knife in a drain. Thereafter, the defendant and Samantha Daley took a taxi to the defendant's house at 113 Gilmore House, Clapham. The defendant handed himself in to the police at Sutton Police Station on Monday 22 January 2007.
Matters of fact on which the Accused takes issue
The defendant denied that he was armed with a knife during the altercation with Mr. Edwards. The defendant denied attacking Mr. Edwards with a knife. Mr. Edwards was armed with the knife, not the defendant. The defendant acted at all times in self-defence, in defence of Samantha Daley and in defence of the property, 20 Poullett House. The defence takes issue with the prosecution's account that Mr. Edwards was with one white woman and one black man outside Mr. Lafayette's address at the time of the altercation. The defence asserts that Mr. Edwards was accompanied by one white woman and two black men.
The defendant denies that either he or Samantha Daley followed Mr. Edwards down the stairs and out of Poullett House immediately after the incident occurred. The defendant went back into his flat with Samantha Daley and locked the door, fearing a reprisal attack."
13.
On 10 April 2007 the prosecution lodged a written application under Part 35 of the Criminal Procedure Rules for the admission in evidence of the appellant's convictions on 10 July 1985 for wounding with intent and carrying a firearm with intent to commit an indictable offence. The application was made under
section 101(1)(d)
Criminal Justice Act 2003
. The prosecution wished to introduce the conviction as evidence of the defendant's propensity to commit offences of aggressive violence. On 26 April the defence filed an application under rule 35.6 seeking the exclusion of that evidence on the grounds that (1) the conviction did not constitute evidence of a relevant propensity and (2) it would be unjust to admit a conviction 22 years old. The judge did not rule on the application. It was agreed by counsel that it was very likely that the appellant's previous convictions would be introduced into evidence and no ruling was sought on the application before the appellant gave evidence.
14.
During the course of the prosecution's case the appellant cross-examined about the bad character of the eye witness prosecution witnesses and of the deceased. They were addicts with a number of convictions. The thrust of the cross-examination was to the effect that the deceased and the others had come to the flat to rob the appellant and that their characters and their earlier behaviour was such that were likely to have done that. In the case of Asroy Dawes convictions for knifepoint robberies, for possession of offensive weapons and for rape were put to him.
15.
In examination-in-chief the appellant admitted his previous convictions, including two which are of particular importance to this appeal. The evidence was thus admitted under
section 101(1)(b)
of the
Criminal Justice Act, 2003
. In 1985 he had received a sentence of 9 years for wounding with intent and possession of a sawn off shotgun. The appellant, then aged 21, had shot a man at close range in the groin/leg. He told the jury that, at the time, he was a member of a gang. In 2003, aged 40, he had been convicted of criminal damage, a comparatively minor matter involving damage to a window belonging to a flat occupied by Samantha Daley, who at the time was his partner albeit in a stormy relationship. He also admitted serious offences of supplying class A drugs, for which, at the age of 29, he received a sentence of 6 years and offences of dishonesty.
16.
It was the appellant's case that by the time of the alleged murder he was a reformed character and had given up drug dealing. Why then, the prosecution asked, did the deceased and others come to the flat he was occupying?
17.
In cross-examination the appellant was asked a few more questions about the 1985 conviction and he agreed that he had pleaded not guilty.
18.
The prosecution then made an application to cross-examine the appellant about the background to the criminal damage. At the time of the incident Samantha Daley had made a statement to the police alleging that, in addition to breaking the window, he had through the letter box made a threat to slit her throat if she phoned the police. On behalf of the appellant it was argued that the evidence should be excluded.
19.
The Common Serjeant gave the following ruling:
"We have reached the stage now in this trial where a defendant is being cross-examined and the prosecution now wish to cross-examine the defendant as to his background by adducing some evidence from his partner, Samantha.
They have placed before the Court a statement dated 17th June 2003, concerning an incident at their home which has various references to threats and to a knife.
The defence invite me to say that this should not be admitted. I am very grateful for the careful argument that has been placed before me.
Basically, the defence say that the facts of this case are close to the case of
Bovell & Dowds
[2005]
2005 EWCA Crim 1091
, paragraph 21."
Secondly, in any event it is only an allegation. Thirdly, looking at it overall, it is highly prejudicial: it being, in the words of Miss Higgins:
"Really more of a domestic incident involving a penknife rather than the use of a rather large kitchen knife and the dramatic results of that."
If those arguments fail then I should use my residual discretion not to allow it.
The prosecution, on the other hand say that this evidence can go in through the bad character provisions through
Section 101
either through (d) [relevant to an important matter in issue], (f) [evidence to correct a false impression], or (g) [attack on another person's character], or indeed all three of them.
They concede that this matter has never been litigated but say that this does not mean that it cannot be admissible, indeed the interpretation of the Act certainly allows that to occur.
The prosecution also say that there ought to be in reality a balance because throughout this trial, sadly, each major participant does have bad character and that those have already been explored in some considerable detail by the defence.
I have had the opportunity now of considering the authorities and also the skeleton which has been provided to me.
It does seem to me that this evidence is admissible. Indeed, I think it is admissible under all three of the gateways.
It does mean that I should apply consideration of
Section 101(3)
to consider whether there is an adverse effect on the fairness of the trial.
That is what I have attempted to do: which is really the same as Section 78, my residual discretion on fairness.
It does seem to me having considered the overall background to this case that this is a matter that can be before the jury.
There has been extensive cross-examination in relation to each of the major (I stress main players), but each of the major witnesses and personalities connected with this trial.
In my judgment the jury are entitled to have as full a picture as possible given the way in which this trial has evolved, and to give this evidence whatever weight they think proper.
It does not seem to me that there is particular prejudice such as I should withdraw this from the jury so, despite the attractive arguments placed before me by Miss Higgins, I allow the prosecution's application."
20.
Mr Whitehead submitted to us that the judge was wrong. Whether the judge was right or wrong to rely on gateway (d), he was certainly entitled to rely on (g), given the full blooded attack on the character of the eye witnesses and the deceased. The evidence was also probably admissible under gateway (f), because the appellant had in his evidence trivialised the incident which led to the conviction by describing it as "domestic".
21.
Mr Kyte QC cross examined the appellant about the incident and he denied making a threat to kill.
22.
Samantha Daley was called to give evidence in support of the appellant's account of what led to the stabbing. Mr Kyte cross-examined her about the 2003 threats. She was reluctant to give evidence about it, saying that she could no longer remember and that the appellant had changed his ways since then. She did agree that he had had a very small folding pocket knife on him (the appellant had accepted that too but he described the penknife as a "novelty on a key ring".) We went through the notes of her evidence with Mr Whitehouse QC. He accepted only that the jury would have been entitled to conclude that she did adopt that part of her statement which referred to the threat to kill.
23.
Mr Kyte made his speech. He mentioned the 1985 conviction. In persuading the court to grant leave, Mr Whitehouse said that Mr Kyte had made much of the 1985 conviction and invited the jury to conclude that the conviction made it more likely that the defendant had committed the murder. An analysis of the speech showed that this was not the case and Mr Whitehouse apologised to the court.
24.
After Mr Kyte had made his speech, there was a short discussion about the contents of the summing-up. In so far as relevant to this appeal, the transcript reads:
"THE COMMON SERJEANT: Might we return to the (inaudible) evidence. Is there no agreement between counsel?
MR WHITEHOUSE: My Lord, we are, I promise you, working on it. What I know my learned junior has done in the last hour and a half is to put down upon paper our joint suggestions in relation to bad character.
THE COMMON SERJEANT: I must say I am not overly concerned with bad character in the sense that in this case everything is in the jury -
MR WHITEHOUSE: Yes, of course, but it is simply a question as to whether or not your Lordship feels obliged to say why everything is said and what it is relevant to.
THE COMMON SERJEANT: The latest learning is that it is not essential to say why it is in, it is in by agreement, it is inevitable that in a case like this the jury will want to know something about the background. If counsel have judged it appropriate in everybody's case the jury should know as much about the background as they can.
It is entirely for the jury what they will do with that information
.
MR WHITEHOUSE: Well, my Lord, we have read Professor Ormrod's remarks about
Campbell
and as far as I am concerned I certainly do not seek to disagree with what you have said.
THE COMMON SERJEANT: I think things have moved on quite a lot in the last six months in regards to character.
MR WHITEHOUSE: Yes.
THE COMMON SERJEANT: Particularly in this case where nearly everybody has character in one sense or another.
MR WHITEHOUSE: We were going to invite you to look at
Murphy
[
[2006] EWCA Crim 3408
] and give the jury a direction which takes account of the Lord Chief Justice's ruling in that case as to the extent to which previous convictions have any value as to establishing propensity after 22 years.
THE COMMON SERJEANT: I think what I have just said, in fact, has come more or less directly from this verdict. Broadly speaking I will, of course, look at anything you wish to place before me and listen to anything you have to say. But that is broadly speaking what I shall be saying. I shall not be dwelling on character particularly. They have to consider everybody on their merits in the end.
MR WHITEHOUSE: Yes." (Underlining added)
25.
As to the words which we have underlined, "It is entirely for the jury what they will do with that information", we do not think that that is right, albeit that Mr Whitehouse agreed with it. In
R v Edwards and others
[2005] EWCA Crim 1813
;
[2006] 1 Cr App R 3
the then Vice president said:
"It should be explained why the jury has heard the [bad character] evidence and the ways in which it is relevant to and may help their decision."
26.
In
Campbell
[2007] EWCA Crim 1472
;
[2007] 2 Cr App R 28
Lord Phillips CJ, giving the judgment of the Court said:
"Where evidence of bad character is introduced the jury should be given assistance as to its relevance that is tailored to the facts of the individual case. Relevance can normally be deduced by the application of common sense. The summing up that assists the jury with the relevance of bad character evidence will accord with common sense and assist them to avoid prejudice that is at odds with this. "
27.
We turn to the summing-up. The judge said towards the start of his summing up:
"Each of the key witnesses inevitably has had their brushes with the law. You are of course entitled to have their backgrounds and lifestyles in mind when assessing the worth of what they say. Then each can be and probably has been the subject of reasonable criticism."
28.
He continued a paragraph later:
"I now turn to the specific details of the defendant and his record of previous convictions. Just to say this: in the old days, juries generally were not told about a defendant's previous conviction.
This was because of a sort of fear that such information might prejudice a jury against a defendant and they would give that information more weight than it deserved.
Well now, in the last couple of years, such evidence is often admitted and a
jury understandably wants to know whether what a defendant is alleged to have done is out of character or whether he has behaved in a similar way before
.
Of course a defendant's previous convictions are only background. They do not tell you whether or not he has committed this offence.
What really matters is the evidence that you have heard in relation to this allegation. Please be careful not to be unfairly prejudiced against the defendant by what you have heard about his previous convictions." (Underlining added)
29.
This passage comes from
Campbell
[2007] EWCA Crim 1472
;
[2007] 2 Cr App R 28
. Lord Phillips CJ, giving the judgment of the Court, said that a more helpful direction than that given by the trial judge would have been along the following lines:
"Members of the jury. In the old days juries were usually not told about a defendant's previous convictions. This was because of the fear that such information would prejudice the jury against the defendant and that they would give it more weight than it deserved. Today such evidence is often admitted because a jury understandably want to know whether what the defendant is alleged to have done is out of character, or whether he has behaved in a similar way before. Of course a defendant's previous convictions are only background. They do not tell you whether he has committed the offence with which he is charged in this case. What really matters is the evidence that you have heard in relation to that offence. So be careful not to be unfairly prejudiced against the defendant by what you have heard about his previous convictions."
30.
Campbell
was a case in which the bad character evidence was admissible to show propensity. In the words of Lord Phillips:
"47. ... the appellant's previous convictions for violence to women of a similar nature to that spoken to by Miss Lee [the complainant] gave cogent support to her evidence."
31.
The Common Serjeant then told the jury to take the same approach to the deceased and to the prosecution witnesses:
"That same general approach should be taken with the record that you have heard about of Michael Edwards, of Asroy Dawes, of Louise and to some extent to Shaumaine as well."
32.
The judge continued:
"The issue here is whether you have been made sure by the evidence that Mr Lafayette unlawfully stabbed Michael Edwards to death.
He says that having seen Mr Edwards raising a knife he had no choice but to take action and wrestle with him leading to that fatal injury.
When considering that account, you are entitled to consider what you have heard about him and about his previous record of offending which includes: the use of a weapon in 1985, and this altercation with Samantha in 2003, when a penknife was produced and threats were apparently made.
In the end however, you must evaluate matters on what you have heard and you have seen and unless you have reliable evidence then you should disregard them."
33.
Mr Kyte submitted that the judge in these passages was giving what Mr Kyte described a propensity direction, albeit "watered down." Mr Whitehouse agreed that the judge was giving a propensity direction and submitted that such a direction was inappropriate.
34.
We do have some doubts whether the judge was directing the jury that they were entitled to rely on the 1985 and 2003 incidents as evidence of propensity to commit offences of the kind with which he was charged, namely murder (see section 103(1)(a)). Mr Kyte had not relied on propensity in his speech and the judge had not given a ruling that the 1985 incident could be relied on for this purpose. In any such ruling on the 1985 incident the judge would have to have dealt with section 103(3) and the argument of Mr Whitehouse based on
Murphy
(a stale conviction case). As Lord Phillips said in
Campbell
:
"47. ... The extent of the significance to be attached to previous convictions is likely to depend upon a number of variables, including their number, their similarity to the offence charged and how recently they were incurred and the nature of his defence."
35.
We also have doubts whether the 2003 incident involving a domestic dispute, a shouted threat through a letter box and possession of a small knife could properly be relied upon as evidence of propensity to commit offences of the kind with which he was charged, namely murder. Section 103(1) requires that. A mere propensity to angry outbursts is not enough. The importance of applying section 103(1)(a) carefully is stressed in a number of cases referred to us by Mr Whitehouse:
Dolan
[2002] EWCA 1859;
Tully and Wood
[2006] EWCA Crim 2270
;
Osbourne
[2007] EWCA Crim 481
and
Urushadze
[2008] EWCA Crim 2498
.
36.
Mr Whitehouse further submitted that in so far as the 2003 incident is concerned, the judge should have directed the jury that they could not rely on the evidence that the appellant had threatened Samantha Daley unless they were sure that she had adopted her witness statement in this respect (no application having been made by the prosecution to rely on sections 119-120 of the Act) and that they were sure that the threats had been made. We agree. The evidence of the circumstances allegedly surrounding the criminal damage in 2003 having been denied by the appellant, a direction was required, in this case, that the jury should not rely on those circumstances unless they were sure that the appellant had made the threat.
37.
Section 98 provides that "References ... to evidence of a person's bad character are to evidence of, or a disposition towards misconduct on his part ..." Section 112(1) defines misconduct as meaning "the commission of an offence or other reprehensible behaviour". An allegation of "reprehensible behaviour" will normally be admissible (see section 109), but unless the jury are sure that the appellant engaged in the alleged reprehensible behaviour, they cannot rely on it for the purposes of assessing the defendant's credibility or his propensity to commit offences of the kind with which he is charged.
38.
Mr Whitehouse argued (directing our attention to
Osbourne
[200] EWCA Crim 481) that shouting threats of this kind to one's partner did not constitute reprehensible behaviour. We do not agree. Threats of the kind alleged by the prosecution to have been made in this case could constitute reprehensible behaviour.
39.
In our view the judge had to address the following issues in the summing up:
ii)
for what purpose the evidence, now that it had been admitted, could be used by the jury in its deliberations;
iii)
whether there was a danger that the jury might use the evidence for an inappropriate purpose and, if so, what warning should be given to them as to the limitations of the evidence.
40.
The judge had to consider the purpose for which the numerous previous convictions and in particular the 1985 conviction and the 2003 allegation could be used by the jury. If the judge concluded that the 1985 conviction and the 2003 allegation could properly be used by the jury as evidence of propensity (and we are not sure that he could), then his directions needed to be fashioned to deal with the issue. It would be necessary to direct the jury that it was for them to judge whether the evidence of bad character and the propensity contended were proved by the prosecution to their satisfaction, and it was for them to assess whether and to what extent the alleged propensity, if proved, assisted them to conclude whether the defendant was guilty. He would add conventional warnings against over-reliance upon such evidence. Among the specific warnings the jury would have required was that they should take into account the age of the 1985 conviction, the age of the defendant at the time and the absence of any subsequent convictions for violence, before concluding that the defendant possessed, in 2007, a propensity towards serious violence of the kind charged.
41.
If, on the other hand, the judge had concluded both that the evidence was not capable of establishing a relevant propensity and that in the absence of a warning the jury might stray towards a finding of propensity, they required an explicit direction that they must not regard the evidence of the 1985 and 2003 incidents as any evidence that the defendant acted as alleged in the indictment.
42.
Whilst taking the view that the summing-up did not deal with the issues as it should have done, we must ask ourselves whether the conviction is safe. It will not be safe unless the jury would have inevitably come to the same conclusion had they been properly directed.
43.
Mr Kyte sought to persuade us that the evidence was overwhelming and that the alleged misdirections did not affect the safety of the conviction. Mr Whitehouse submitted that the evidence of the alleged eye witnesses was deeply flawed.
44.
Given that there had been an attack on the character of the deceased and the prosecution eye witnesses, gateway (g) was triggered. Before
the 2003 Act
, an attack on the character of prosecution witnesses could lead to the admission of bad character evidence.
Section 1(f)
of the
Criminal Evidence Act 1898
provided:
"A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless-
(i) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or
(ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; or
(iii) he has given evidence against any other person charged in the same proceedings."
45.
Where "the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution", then, in the words of Lord Lane CJ in
Powell
[1985] 1 W.L.R. 1364, in a passage starting at 1369:
"In the ordinary and normal case the trial judge may feel that if the credit of the prosecutor or his witnesses has been attacked, it is only fair that the jury should have before them material on which they can form their judgment whether the accused person is any more worthy to be believed than those he has attacked. It is obviously unfair that the jury should be left in the dark about an accused person's character if the conduct of his defence has attacked the character of the prosecutor or the witnesses for the prosecution within the meaning of the section ..."
46.
The pre 2003 Act authorities on this topic were fully canvassed in
McLeod
[1994] 1 WLR 1500 (discussed recently in
Lamaletie and Royce
[2008] EWCA Crim 314
). It was well established under the old law that previous convictions admitted under this part of
the 1898 Act
could not be used to show propensity, see eg
Maxwell v. Director of Public Prosecutions
[1935] A.C. 309
, 321. In
McLeod
, the Court pointed out the difficulties of reconciling this proposition with the admission into evidence of previous convictions following an attack on prosecution witnesses:
"If an accused man who has attacked prosecution witnesses has many previous convictions for similar offences, it may be necessary that the jury should understand the character of the person making the allegations; at the same time it is difficult to pretend that such a history does not show a propensity to commit the instant offence. Take the case of a drugs dealer: a very common defence is that drugs were planted by the police and, any admission alleged to have been made, fabricated. If he had a number of previous convictions for supplying or possession with intent to supply drugs, the jury cannot judge the substance of the defence without knowing this, and perhaps also, if it be the case that the defence advanced on previous occasions was that the drugs were planted. Yet the more the convictions, the worse the character, the greater the propensity to commit the offence."
47.
The court in
McLeod
drew from the authorities a number of propositions, two of which are relevant to the issues on this appeal:
"1. The primary purpose of the cross-examination as to previous convictions and bad character of the accused is to show that he is not worthy of belief. It is not, and should not be, to show that he has a disposition to commit the type of offence with which he is charged: see
Reg. v. Vickers
[1972] Crim L.R. 101,
Reg. v. Khan
and
Reg. v. Barsoum
. But the mere fact that the offences are of a similar type to that charged or because of their number and type have the incidental effect of suggesting a tendency or disposition to commit the offence charged will not make them improper: see
Reg. v. Powell
[1985] 1 W.L.R. 1364;
Reg. v. Owen
,
83 Cr.App.R. 100
and
Reg. v. Selvey
[1970] A.C. 304
.
...
7. In every case where the accused has been cross-examined as to his character and previous offences [under this part of
the 1898 Act
], the judge must in the summing up tell the jury that the purpose of the questioning goes only to credit and they should not consider that it shows a propensity to commit the offence they are considering."
48.
In
Campbell
the Court, dealing with the propensity provisions of
the 2003 Act
, said:
"28. In considering the inference to be drawn from bad character the courts have in the past drawn a distinction between propensity to offend and credibility. This distinction is usually unrealistic. If the jury learn that a defendant has shown a propensity to commit criminal acts they may well at one and the same time conclude that it is more likely that he is guilty and that he is less likely to be telling the truth when he says that he is not.
49.
Mr Kyte relies on this passage, but we stress that
Campbell
was a propensity case. In many cases at least some of the bad character evidence admitted under gateway (g) will also be admissible under gateway (d) and thus entitle the judge to give a propensity direction (see
Highton
[2005] EWCA Crim 1985
). What is the position to-day if the evidence which is admissible under gateway (g) is not admissible under gateway (d) to show propensity? For example, what should the judge say if the evidence under gateway (g) showed only previous convictions for offences of dishonesty and/or drugs offences and/or offences of violence, from any of which the jury would
not
be entitled to conclude that they showed on the part of the defendant a propensity to commit the kind of offences with which he is charged? We think that the better course is for the direction to be so fashioned in a gateway (g) only case that the jury understand that the relevance of these kinds of previous convictions goes to credit and they should not consider that it shows a propensity to commit the offence they are considering, at least if there is a risk that they might do so. That is not to say that the words "credit" and "propensity" should be or need to be used.
50.
In so far as previous offences of violence (or violent reprehensible conduct) are concerned, we accept that this suggested direction runs contrary to
Meyer
[2006] EWCA Crim 1126
, discussed in
Lamaletie and Royce
, para. 16. We also accept that it is not easy to draw a distinction between credit and propensity when the offences/conduct admissible under gateway (g) have some similarities to the offence charged but do not show the propensity addressed by section 103(1). That difficulty is reflected in the pre-2003 Act cases to which we have referred and we are mindful that the LCJ said in
Campbell
:
"24. ... Decisions in this field before the relevant provisions of
the 2003 Act
came into force are unhelpful and should not be cited."
But it seems to us that the Act does require a distinction to be made between taking into account the defendant's previous convictions/conduct when deciding whether to believe his account of what happened and using those previous convictions as evidence of propensity. If the previous convictions admitted under gateway (d) are previous offences of violence and if they are not admissible under gateway (g) to show propensity, then it may be better to direct the jury that they may be taken into account when deciding whether to believe the defendant's account that he was, for example, the object of a violent attack and thus entitled to defend himself.
51.
We return to this case. The judge said, as we have seen:
"When considering that account, you are entitled to consider what you have heard about him and about his previous record of offending which includes: the use of a weapon in 1985, and this altercation with Samantha in 2003, when a penknife was produced and threats were apparently made.
In the end however, you must evaluate matters on what you have heard and you have seen and unless you have reliable evidence then you should disregard them."
52.
He had earlier said:
"Of course a defendant's previous convictions are only background. They do not tell you whether or not he has committed this offence.
What really matters is the evidence that you have heard in relation to this allegation. Please be careful not to be unfairly prejudiced against the defendant by what you have heard about his previous convictions."
53.
Notwithstanding the failure to tell the jury that they had to be sure before relying on the 2003 incident and notwithstanding the failure to deal with the issue of credit/propensity in the way we have outlined, there were sufficient safeguards in these passages in the summing up that we are satisfied, in this case, that the conviction is safe.
Sentence
54.
MR JUSTICE FORBES: We now turn to consider the application for leave to appeal against sentence. The applicant is aged 44. He has a number of previous convictions dating back to 1982 for offences relating to drugs, violence and dishonesty. His first and longest sentence of imprisonment was for a total period of nine years imposed on 10 July 1985 at the Central Criminal Court for offences of wounding with intent, carrying a firearm with intent, and assault with intent to resist arrest. The wounding involved shooting the victim with a shotgun in or very near the area of the groin.
55.
On 14 April 1993 the applicant was imprisoned for six years for being concerned in the supply of Class A drugs. Since then, his convictions have been for relatively minor offences such as theft.
56.
On 8 September 2003 and 1 March 2004 he was made subject to Drug Treatment and Testing Orders with conditions of residence. His most recent conviction on 12 March 2004 was for an offence of criminal damage for which he was conditionally discharged.
57.
Mr Whitehouse submitted that the minimum term of 14 years specified by the judge was manifestly excessive in all the circumstances of the case. Mr Whitehouse accepted that the judge had selected the correct starting point of 15 years: see paragraph 6 of
Schedule 21 to the Criminal Justice Act 2003
. Mr Whitehouse pointed out that the judge had also acknowledged that none of the aggravating factors identified in paragraph 10 of
Schedule 21
were present in this case. However, it was Mr Whitehouse's submission that the judge had failed to take into account sufficiently the two
Schedule 21
mitigating factors that were present, ie (i) the fact that it had been the applicant's intention to cause serious bodily harm rather than to kill, and (ii) the lack of premeditation: see paragraph 11(a) and (b) of
Schedule 21
.
58.
Mr Whitehouse also submitted that the judge had failed to have sufficient regard to another important mitigating factor, namely the appellant's successful completion of the Drug Treatment and Testing Orders to which he had been made subject in 2003/2004, as a result of which he had freed himself of his long-term habit of drug abuse.
59.
In short, it was Mr Whitehouse's submission that, having regard to the nature and significance of these mitigating factors, the judge should have deducted more than just one year from the starting point of 15 years.
60.
We have carefully considered Mr Whitehouse's submissions but are not persuaded by them. Although the judge did not set out in his sentencing remarks a detailed calculation to how he arrived at the specified minimum term, it is clear that he had all the relevant factors firmly in mind when passing sentence and that he carried out the appropriate balancing exercise by reference to all the relevant factors. It suffices to quote the following passages from his sentencing remarks:
"The fact is that this was a terrible crime ... You have a string of previous convictions including wounding with intent and carrying a firearm in 1985, for which you were given a total of 9 years ... and in 1993 you were given 3 years for supplying Class A drugs ... You were given Drug Testing and Treatment Orders in both 2003 and 2004. It is said that you put that residential treatment to good use and managed to conquer your addiction. You do have favourable reports from the institutions and projects for your work in 2006, which I have noted ...
... I agree with Mr Whitehouse that the starting point is one of 15 years ... I agree in this case that there are no aggravating features. There are mitigating features: there are two. Firstly, that there was no premeditation and secondly that the intention cannot be said to be put higher than to cause really serious harm.
I balance out the various factors in this case and it is my view that the minimum term under the Act should therefore be one of 14 years ..."
61.
In our view, the starting point of 15 years should be increased to 16 years to take account of the applicant's previous convictions, in particular for the very serious offence of violence committed in 1985. Given the applicant's use of a long kitchen knife and the position and nature of the wound inflicted with it, we do not consider that much significance can be attached to the absence of an intention to kill, although we accept that there should be some limited recognition of that mitigating feature. When the other two mitigating circumstances are also taken into account, we are satisfied that the deduction of two years from the 16 years would be appropriate, resulting in a specified minimum term of 14 years.
62.
Having regard to his sentencing remarks, we are confident that the judge arrived at the figure he did by a similar process of reasoning. There is no substance in this application, which is, for those reasons, refused accordingly. | ```yaml
citation: '[2008] EWCA Crim 3238'
date: '2008-12-18'
judges:
- LORD JUSTICE HOOPER
- MR JUSTICE FORBES
- MR 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}
======
| Case No: 200302858 B1 and 200302870 B1
Neutral Citation Number:
[2004] EWCA Crim 2375
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WINCHESTER CROWN COURT
MR JUSTICE LANGLEY AND A JURY
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
Friday, 8th October 2004
Before :
THE RIGHT HONOURABLE LORD JUSTICE JUDGE
DEPUTY CHIEF JUSTICE OF ENGLAND AND WALES
THE HONOURABLE MR JUSTICE TREACY
and
THE HONOURABLE MR JUSTICE BEAN
- - - - - - - - - - - - - - - - - - - - -
BETWEEN:
Regina
- v -
Amit Misra
AND BETWEEN
Regina
- v -
Rajeev Srivastava
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr Michael Gledhill QC
and Mr J. McNally
for the appellant Misra
Mr A. Kennedy
for the appellant Srivastava
Mr P. Mott QC and Mr H. Jenkins
for the Crown
Mr D. Perry
for the Attorney General
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Judge:
1.
These are appeals by Amit Misra and Rajeev Srivastava against their convictions on 11 April 2003 on separate counts of manslaughter in the Crown Court at Winchester before Langley J and a jury. Each was sentenced to 18 months imprisonment, suspended for two years. After conviction, the judge certified: “the question of compliance of the crime of “gross negligence manslaughter” with the ECHR is one of some importance”, and that accordingly the case was fit for appeal.
2.
The victim of manslaughter was Sean Phillips. He underwent unremarkable surgery to repair his patella tendon at Southampton General Hospital on 23 June 2000. Unfortunately he became infected with staphylococcus aureus. The condition was untreated. There was a gradual build up of poison within his body, which culminated in toxic shock syndrome (TSST1) from which he died on 27 June. The appellants were senior house officers involved in the post-operative care of the deceased during the period beginning on the evening of 23 June until the afternoon of 25 June. It was alleged that each was grossly negligent in respect of the medical treatment he provided to the deceased and that these failures caused the death. Each was convicted of manslaughter by gross negligence.
3.
The particulars of offence against each appellant, as amended, alleged in identical terms that he unlawfully killed Sean Philips:
“… by gross negligence in that:
(1) as a doctor he owed a duty of care to Sean Phillips as his patient;
(2) in breach of that duty of care he failed to make any or any adequate diagnosis of the nature of Sean Phillips’ illness which he should have identified as a severe infection requiring aggressive supportive therapy and antibiotics, and to take steps to ensure that he received appropriate treatment;
(3) that breach of duty amounted to gross negligence;
(4) that negligence was a substantial cause of the death of Sean Phillips.”
4.
The prosecution case against the appellants did not arise from their failure to diagnose the precise condition from which the deceased was suffering. Given its rarity, of itself this may well not have amounted to negligence at all. Instead the Crown relied on the appellants’ failure to appreciate that their patient was seriously ill. He was showing classic signs of infection: raised temperature and pulse rate, and lowered blood pressure. These conditions were severe, and persistent, and were or should have been obvious, if only from a glance at the relevant charts. It was equally obvious that the patient needed urgent treatment. And, notwithstanding suggestions by other members of the medical team on more than one occasion that further treatment was needed, none, or none that was appropriate, was provided. Blood results were available from the hospital computer from 9.47 on the Saturday evening. They were never obtained, nor acted upon, nor did either appellant make any enquiry whatever about the results. They did not seek help from senior colleagues. In short, infection was not diagnosed when it should have been, and not properly treated until it was far too late. The mistakes made by the appellants were elementary. Accordingly, they were negligent, and grossly so, and in consequence Sean Phillips died of toxic shock syndrome.
5.
We must briefly summarise the main facts. While on a visit to London, Sean Phillips, a 31 year old, healthy man from Southampton, injured his patella tendon. He required an operation, which was carried out on Friday 23 June 2000 at Southampton General Hospital. The skin was cut above the knee. A metal wire was inserted. The wound was then stitched and the leg placed in a back slab plaster. No post-operative complications were anticipated. After a period in the recovery ward, the deceased was admitted to an orthopaedic ward (Ward Four).
6.
The appellants were senior house officers, and part of the team involved in the post-operative care of the deceased. Dr Srivastava was responsible for the deceased during the night shifts of 23-24 June and 24-25 June. Dr Misra was on call during the day shifts, between 8 am and 5 pm on 24 and again on 25 June. Throughout Saturday 24 and Sunday 25 June, the deceased appeared to be alert and well-orientated and in possession of all his faculties. Unfortunately the operation wound became infected with staphylococcus aureus.
7.
After the deceased’s admission to Ward Four, the immediate concern for his welfare focussed on the management of his post-operative pain. Appropriate pain killers were provided for him, and Dr Srivastava prescribed voltarol, administered as a suppository. In the early hours of Saturday, 24 June, it was observed that the deceased’s temperature and pulse had both increased markedly, when simultaneously his blood pressure was falling. He also vomited and suffered bouts of offensive diarrhoea.
8.
At about midday on 24 June, the deceased’s temperature was recorded at 38.3
o
C, his pulse measured at 145, and his blood pressure was 89/55. Dr Misra was contacted. He saw the patient. He prescribed intravenous fluids and agreed that oxygen should be provided. Despite a marginal improvement, the patient’s condition remained abnormal. At trial Dr Misra said that he ascribed the temperature rise to the trauma of the operation and the low blood pressure and high pulse to the diarrhoea and vomiting, which would have caused dehydration. He prescribed appropriate treatment, stopping the voltarol and ordering an alternative anti-emetic. He also asked that a stool sample should be taken if the diarrhoea continued. In the meantime, the patient was to be kept under observation.
9.
Later that afternoon Dr Misra was asked to review the patient. His temperature was still in excess of 38, his pulse was running at about 130, and his blood pressure was unchanged, and low. The Crown’s case was that the sister on duty suggested that blood cultures should be taken. She thought that this would be a normal precursor to antibiotics. She said that Dr Misra disagreed. No cultures were taken. In his interview, Dr Misra said that he could not recall this part of the conversation and he doubted whether it had happened at all. If blood cultures had been ordered, it would have taken 48 hours for the results to become available. Therefore the absence of blood cultures did not contribute to the death: however the fact that they were not taken itself provided an indication that proper and full attention was not being paid to the deceased’s condition. Dr Misra went off duty at 5pm.
10.
Dr Gandopadhyhay assumed responsibility for the patient. At 7pm, at the request of the ward sister, he reviewed the patient. Despite continuing alertness, the patient was in bad condition. Blood tests, to ascertain the blood count, and for consideration of cultures and sensitivities, were then taken. They were sent for analysis, with results normally available a couple of hours or so later. This doctor saw no indications of infection at the site of the wound, and in evidence he said that he discounted the possibility that the patient’s condition was attributable to any such infections. Pending the results of the blood tests, his provisional view was that the patient was suffering from gastro-intestinal infection. He made appropriate notes about the patient, the first of the doctors to do so, ending his note with the words “review results”. As he was labelling the blood samples, Dr Srivastava came on duty. Dr Gandopadhyhay described how he passed on his provisional view about the patient’s condition to Dr Srivastava, and explained what he was doing and why, and that he had asked for the results of these blood tests to be checked, and for the nurses to contact Dr Srivastava if they were abnormal. Dr Srivastava in evidence agreed with this account of the conversation, and said that he worked on the basis that if anything abnormal was shown by the tests, he would be told of it by the nurses.
11.
The blood tests were available on the hospital computer by 9.47 that evening. They showed a rise in creatinine levels, together with a high level of protein indicative of an acute inflammatory condition. In short, there was evidence of kidney damage and possible infection. These results were not seen by Dr Srivastava that night. He said that he had not been given a password to access the computer. He did not ask to see the results. They were not accessed by Dr Misra on the following day, nor indeed by anyone until late on the Sunday evening by when it was too late. In other words, the blood tests ordered by Dr Gandopadhyhay were entirely disregarded.
12.
During the night of 24-25 June, at 11 pm, observations on the patient showed that his temperature was running at 39.1. His pulse rate was 135, and his blood pressure 90/50. At midnight his blood pressure declined further. The nurses summoned Dr Srivastava. To increase blood pressure he prescribed a plasma volume expander. This was started at 12.10 am. Further episodes of diarrhoea were observed, and a staff nurse recorded in the notes, “to be reviewed. Doctor is aware.” She recorded further abnormalities. Dr Srivastava again saw the patient at 12.50. He advised additional plasma volume expander, and continuation of observation. The evidence from nursing staff suggested that they asked whether anything else could be done for the patient. Dr Srivastava responded that if the systolic blood pressure fell below 70 further action should be taken by calling in the registrar or the medical senior house officer on duty.
13.
In interview Dr Srivastava said he could not recollect any such conversation, and that it would be unlikely for him to have spoken in these terms in the context of a figure as 70, for a patient with a base line of 100. This would be very low. In evidence, he said that he had to accept that conversation happened, commenting that he had spoken to one of the nurses, who must have passed it on to the other. Dr Srivastava also wrote in the patient’s notes, “continue monitoring”. He misread the patient’s fluid chart, noting a urine output at nearly twice the actual amount of 250 ml. In evidence he described this as a “silly mistake”. According to the evidence however, “silly” or not, the mistake was not insignificant. Dr Srivastava also said that the patient remained fine and well, cheerfully asking why he was under such constant observation. He acknowledged that he did not look at the observation chart. This, too, was an admitted, further mistake. The review ended at about 1.00am.
14.
At 4.30am a member of the nursing team noted that the patient’s blood pressure was “still low and tachycardic”. At 6 am, Dr Srivastava saw the patient again. His temperature had reduced to 38.1, and his blood pressure increased to 100/52. His pulse rate remained high. At the end of her shift one of the members of the nursing staff described her concerns about the patient. In her experience his deterioration was unusual. Dr Srivastava went off duty, describing in evidence that he thought that his patient was not very ill and had improved. He said nothing about his condition before leaving, and did not participate in the ward round.
15.
Dr Misra came on duty on Sunday morning. At the end of his ward round, at about 11am, the ward sister asked him to review the patient, who was now complaining of a burning sensation in the knee. The knee was dry. No discharge or infection was apparent. And indeed, the pathologist confirmed that this remained the case at post mortem. However the patient was still suffering from diarrhoea. His blood pressure was 88/47, pulse 148, and his temperature 39.2
o
C. Dr Misra decided that the fluid regime should be increased, in order aggressively to increase blood pressure. The fluid input rate was to be doubled. He said that he would have read the notes made by Dr Gandopadhyhay about blood tests. He knew that a request for them had been made. However he did not see any document containing the results, and he did not recollect asking for them. He said that the practice was for the laboratory to flag up anything abnormal. Accordingly, he assumed or expected that they were unremarkable.
16.
The nursing handover took place at 1.30pm. The nurse going off duty at 1.30 was concerned that her patient was not improving and the nurse who took over from her was extremely concerned that her patient’s condition had deteriorated since she had last been on duty some 22 hours earlier. Dr Misra’s assistance was sought. Although it was not then known, on the basis of the expert medical evidence called at trial, the patient was passing, or had already passed the point of no return, after which his death was inevitable. It is therefore unnecessary to provide any narrative of the subsequent events in this unhappy story.
17.
The history of events between the time when the patient was admitted to Ward Four and the mid-afternoon of the Sunday were closely examined by expert witnesses called by the Crown. Dr Lowes is the microbiologist in the public health laboratory used by Southampton General Hospital. In his judgment the observations of the patient showed “severe sepsis”, to be treated with broad spectrum antibiotics until a clear alternative diagnosis was available.
18.
Professor Forrest is a professor of forensic toxicology at Sheffield University. In his opinion the observations at midday on 24 June were attributable to a single obvious cause, infection. These observations should have been treated very seriously indeed by an orthopaedic senior house officer. “They should have triggered investigations by blood cultures and blood tests to check for kidney function, and by consulting colleagues as well as examination of the patient”. He also considered that if the patient continued to be ill, and the blood tests were not received, the doctor was obliged to “chase up for the results”. He criticised the failure to react to the severity of the deceased’s illness as shown by the repeated observations and his poor urine output, which he said he would expect a final year student to recognise. His examination of the clinical notes on the patient led him to express the opinion that the quality of the care provided by the appellants “did not even begin to approach the standard to be expected of them”.
19.
Professor Forrest gave evidence on the issue of causation. Although he was prepared to accept that even with proper treatment the patient might have died, he would confidently have expected him to leave the hospital alive if the nature of his condition had properly been recognised and appropriately treated.
20.
Dr Wilcox is a consultant, and the head of medico-microbiology at Leeds Training Hospitals. His responsibilities extend to the examination of medical students. He said that if he were examining a third or fourth year medical student, and postulated the observations of the deceased’s condition following the operation on his knee, and the student failed to diagnose infection, he would have thought of failing the student on that basis alone. He suggested that every mother knew what a high temperature might mean, and if this were combined with a high pulse rate and low blood pressure, every doctor should be able to identify that the patient was seriously ill.
21.
Dr Wilcox dealt with causation. He believed that if the deceased had been prescribed aggressive fluids and a broad spectrum antibiotic, he stood a very high chance of survival. It was very uncommon for death to result from TSST1. Furthermore, the particular patient had remained alert and orientated, which suggested that, at the outset, his body was responding well. His overall view was that the patient would have survived, if provided with appropriate treatment by lunchtime or the early afternoon on Sunday. When cross-examined he indicated that he was not sure that the deceased would have survived with proper medical treatment, but he believed on the balance of probability that he would have done. In re-examination he said that if appropriate treatment had been given at 12 o’clock on the Saturday, he was as certain as one could be that he would have survived. We shall later examine a distinct aspect of the evidence on causation, arising from material of a statistical nature, when we consider an application to admit further evidence under
s 23 of the Criminal Appeal Act 1968
. For present purposes however we note that statistical material did not feature as a significant aspect of the Crown’s case before the jury.
22.
At the close of the prosecution case it was submitted to the judge that there was no case for either appellant to answer. In part, the submission depended on legal argument about the ambit, if any, of the offence of manslaughter by gross negligence. We shall address this issue later in the judgment, for the moment simply recording our indebtedness to Langley J for his careful judgment on the issue. A distinct feature of the submission, however, was that the case should be withdrawn from the jury on the basis that the Crown’s case had failed on causation. The judge rejected the submission. His decision is criticised, essentially on the basis that the deceased may have died from TSST1 in any event, or from the developing consequences of the condition before negligence could be established against either appellant. In our judgment the submission that there was no case to answer on the causation issue was untenable. We have narrated a brief summary of the evidence, including the expert medical evidence. The causation issue was entirely for the jury. If the submission had been upheld, the judge would have usurped its function. His decision was right. We refuse the application for leave to appeal on this ground.
23.
Both appellants gave evidence. Each accepted that, looking at the matter with hindsight, mistakes were made, but they genuinely did not realise how ill their patient was. His condition was very rare indeed. Each had done his best, acting in good faith. Moreover, all those involved in the care of the patient had worked on the same erroneous basis. Even if the mistakes made individually were to be regarded as negligent, their extent did not justify the conclusion that the negligence was gross.
24.
Dr Wilson, a consultant microbiologist at University College London, gave evidence on behalf of Dr Misra. He thought that by 12 o’clock on Saturday, the observations revealed a plainly abnormal situation. He explained that the toxins were causing leakage from the blood vessels and the gut, and that this caused the blood pressure to drop and the heart rate to rise. Low blood pressure would then result in damage to organs such as the kidney, liver and pancreas and the lining of the gut. The patient needed far more fluids, to bring up his blood pressure and to protect his vital organs until the toxins could be stopped by removing the source of infection. The creatinine level suggested that by 8 o’clock on the Saturday evening significant kidney function had already been lost. He thought that the time when the point of no return was reached was a matter of speculation. The chances of survival were much better on the Saturday than on the Sunday, but he could not say with any certainty that the patient would have survived. The judge summarised his evidence: “there was a finite and significant risk of death in any patient having toxic shock syndrome quite regardless of treatment … he could not postulate when in his particular case he probably passed the point of no return, but again he would place it earlier than … Sunday lunchtime … he agreed that if he had been treated appropriately on Saturday afternoon then one was probably looking at a 3-5% level of risk of death.”
25.
For present purposes the critical passages in the summing up read:
“… duty and breach of duty - … will be the starting point to establish civil liability to pay damages. But as you would expect, and is the law, the prosecution must make you sure of something much more, and much more serious, than that before a person can be convicted of the crime of manslaughter. That is why you see in the indictment the words ‘gross negligence’. Mistakes, even very serious mistakes, and errors of judgment, even very serious errors of judgment, and the like, are nowhere near enough for a crime as serious as manslaughter to be committed. If you do conclude that you are sure that either or both of the defendants have been in breach of their duty of care in their treatment of Sean, you must therefore go on to consider the nature of that carelessness or negligence, as you find it to be.
Over the years, the courts have used a number of expressions to describe this vital element of the crime, but the key is that it must be gross in the perhaps slightly old-fashioned sense now of the use of that word. So in this case, when you are considering the conduct of each doctor, I think you will find it most helpful to concentrate on whether or not the prosecution has made you sure that the conduct of whichever one you are considering in all the circumstances you have heard about and as you find them to be, fell so far below the standard to be expected of a reasonably competent and careful senior house officer that it was something, in your assessment, truly exceptionally bad, and which showed such an indifference to an obviously serious risk to the life of Sean Phillips and such a departure from the standard to be expected as to amount, in your judgment, to a criminal act or omission, and so to be the very serious crime of manslaughter.”
26.
As already recorded, the jury convicted both defendants. It was argued before us as an independent ground for granting leave to appeal, that the verdicts were perverse. We have only recorded this argument for the purpose of completeness. Our view can be expressed in a few words. After a fair and balanced summing up, these verdicts were plainly open to the jury. The perversity argument is unmeritorious, and we shall summarily dismiss it.
27.
We can now address the appellants’ submission on the question certified by Langley J.
28.
Mr Michael Gledhill QC on behalf of Dr Misra submitted that manslaughter by gross negligence is an offence which lacks certainty. As presently understood, it requires the trial judge to direct the jury that the defendant should be convicted of manslaughter by gross negligence if they are satisfied that his conduct was “criminal”. Indeed, the effect of his argument was that it is a separate additional
ingredient of this offence that the jury has to decide whether the defendant’s conduct amounted to a crime. Relying in particular on the Law Commission paper on Involuntary Manslaughter (Law Com. No. 237) as a convenient summary of a good deal of the debate by distinguished academic commentators, he suggested that the current test is “circular”. It is this circularity which leads to uncertainty. Mr Gledhill drew attention to, and adopted for the purposes for his argument, the way in which the Law Commission identified the potential problems arising from linking the civil and the criminal law concepts of negligence where the allegation against the defendant arose from omission. This was such a case. “It is by no means certain that the scope of liability for negligent omissions is the same in criminal law as it is in tort.” The principles were “so unclear” that it is difficult to tell whether “the law as currently understood represents a change, and if so, what the implications might be.” The relevant part of the Law Commission paper ends, “It is possible that the law in this area fails to meet the standard of certainty required by the European Convention on Human Rights (ECHR).” In Mr Gledhill’s submission this is an understatement: the standard of certainty is not met.
29.
To develop his argument on uncertainty, Mr Gledhill focussed our attention on Article 7 of the ECHR, entitled “No punishment without law”, which provides:
“7(1) No-one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”
In our view the essential thrust of this Article is to prohibit the creation of offences, whether by legislation or the incremental development of the common law, which have retrospective application. It reflects a well-understood principle of domestic law, that conduct which did not contravene the criminal law at the time when it took place should not retrospectively be stigmatised as criminal, or expose the perpetrator to punishment. As Lord Reid explained in
Waddington v Miah
[1974] 59 Cr App R 149
at p. 150 and 151,
“There has for a very long time been a strong feeling against making legislation, and particularly criminal legislation, retrospective. ... I use retrospective in the sense of authorising people being punished for what they did before the Act came into force.”
30.
Mr Gledhill demonstrated that the Convention contained repeated references to expressions in English such as “prescribed by law”: in French, the same phrase reads “prevue par la loi”. We shall assume that the concepts are identical. Article 7 therefore sustains his contention that a criminal offence must be clearly defined in law, and represents the operation of “the principle of legal certainty”. (See, for example,
Brumarescu v Romania
[2001] 33 EHRR 35
at para 61 and
Kokkinakis v Greece
[1993] 17 EHRR 397
at para 52). The principle enables each community to regulate itself:
“with reference to the norms prevailing in the society in which they live. That generally entails that the law must be adequately accessible – an individual must have an indication of the legal rules applicable in a given case – and he must be able to foresee the consequences of his actions, in particular to be able to avoid incurring the sanction of the criminal law.” (
SW v United Kingdom: CR v United Kingdom
[1995] 21 EHRR 363
)
31.
Mr Gledhill further emphasised that in
Grayned v City of Rockford
408 US 104 the United States Supreme Court identified “a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vagueness offends several important values … A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” He pointed out that Lord Phillips MR had approved these dicta in
The Queen (ZL and VL) v Secretary of State for the Home Department
[2003] EWCA Civ. 25
, para 25.
32.
We acknowledge the force of these submissions, but simultaneously emphasise that there is nothing novel about them in our jurisprudence. Historic as well as modern examples abound. In the seventeenth-century Bacon proclaimed the essential link between justice and legal certainty:
“For if the trumpet give an uncertain sound, who shall prepare himself to the battle? So if the law give an uncertain sound, who shall prepare to obey it? It ought therefore to warn before it strikes ... Let there be no authority to shed blood; nor let sentence be pronounced in any court upon cases, except according to a known and certain law ... Nor should a man be deprived of his life, who did not first know that he was risking it.” (Quoted in Coquillette, Francis Bacon p. 244 and 248, from Aphorism 8 and Aphorism 39 – A Treatise on Universal Justice.)
The judgment of the Supreme Court of the United States in
Grayned
effectively mirrored Blackstone:
“... Law, without equity, though hard and disagreeable, is much more desirable for the public good than equity without law: which would make every judge a legislator, and introduce most infinite confusion; as there would then be almost as many rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind.” (Commentaries, 3rd edition, 1769, vol 1 p.62)
33.
Recent judicial observations are to the same effect. Lord Diplock commented:
“The acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it. (
Black-Clawson International Limited v Papierwerke Waldhof-Aschaffenberg AG
[1975] AC 591
at p. 638).”
In
Fothergill v Monarch Airlines Ltd
[1981] AC 251
at 279 he repeated the same point:
“Elementary justice or, to use the concept often cited by the European court, the need for legal certainty, demands that the rules by which the citizen is to be bound should be ascertainable by him (or more realistically by a competent lawyer advising him) by reference to identifiable sources that are publicly accessible.”
More tersely, in
Warner v Commissioner of Police for the Metropolis
[1969] 2 AC 256
at p. 296, Lord Morris explained in terms that:
“... In criminal matters it is important to have clarity and certainty.”
The approach of the common law is perhaps best encapsulated in the statement relating to judicial precedent issued by Lord Gardiner LC on behalf of himself and the Lords of Appeal in Ordinary on 26th July 1966
[1966] 1 WLR 1234
.
“Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual case. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.”
In allowing themselves (but not courts at any other level) to depart from the absolute obligation to follow earlier decisions of the House of Lords, their Lordships expressly bore in mind:
“… the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.”
34.
No further citation is required. In summary, it is not to be supposed that prior to the implementation of the
Human Rights Act 1998
, either this Court, or the House of Lords, would have been indifferent to or unaware of the need for the criminal law in particular to be predictable and certain. Vague laws which purport to create criminal liability are undesirable, and in extreme cases, where it occurs, their very vagueness may make it impossible to identify the conduct which is prohibited by a criminal sanction. If the court is forced to guess at the ingredients of a purported crime any conviction for it would be unsafe. That said, however, the requirement is for sufficient rather than absolute certainty.
35.
The ambit of the principle, as well as its limitations, were clearly described in the
Sunday Times v United Kingdom
[1979] 2 EHRR 245
. The law must be formulated:
“… with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee to a degree that is reasonable in the circumstances, the consequences which any given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unobtainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity, and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague, and whose interpretation and application are questions of practice.”
Moreover, there is a distinction to be drawn between undesirable, and in extreme cases, unacceptable uncertainty about the necessary ingredients of a criminal offence, and uncertainty in the process by which it is decided whether the required ingredients of the offence have been established in an individual case. The point was highlighted in
Wingrove v United Kingdom
[1996] 24 EHRR 1
:
“It was a feature common to most laws and legal systems that tribunals may reach different conclusions, even when applying the same laws to the same facts. This did not necessarily make the laws inaccessible or unforeseeable.”
36.
We can see the practical application of these comments in
Handyside v United Kingdom
[1974] 17 YB 228, where the Commission considered the definition of obscenity in the Obscene Publications Acts, 1959-1964. This offence is concerned with items which have a tendency to deprave and corrupt, a very general definition, certainly capable on forensic analysis of being criticised on the basis of uncertainty. The Commission nevertheless concluded that the offence was adequately described. In
Wingrove
itself, the court rejected the argument that blasphemous libel – that is, libel defined in very broad terms as “likely to shock and outrage the feelings of the general body of Christian believers” – was insufficiently accessible or certain.
37.
Since the implementation of the
Human Rights Act
, the issue of uncertainty has also been addressed on a number of occasions in this court. It has been decided that the offence of making indecent photographs of children was sufficiently certain to satisfy Articles 8 and 10 of the Convention (
R v Smethurst
[2001] EWCA Crim 772
); that the offence of publishing an obscene article satisfies the requirements of Article 7 of the Convention (
R v Perrin
[2002] EWCA Crim 747
); and that the offence of causing a public nuisance, by sending an envelope through the post containing salt, which was suspected to be anthrax, contrary to common law, was also sufficiently certain to satisfy the requirements of Article 7, 8 and 10 of the Convention (
R v Goldstein
[2004] 1 Cr App R 388
). In each case the uncertainty argument was rejected. In
Goldstein
itself, at p. 395, Latham LJ commented:
“The elements of the offence are sufficiently clear to enable a person, with appropriate legal advice if necessary, to regulate his behaviour. … A citizen, appropriately advised, could foresee that the conduct identified was capable of amounting to a public nuisance.”
In our judgment, the incorporation of the ECHR, while providing a salutary reminder, has not effected any significant extension of or change to the “certainty” principle as long understood at common law.
38.
In further argument Mr Gledhill relied on Article 6(1) of the ECHR which entitles a defendant to:
“… a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
The developing jurisprudence in relation to Article 6 suggests that a reasoned decision is a concomitant to a fair hearing. The jury provides a verdict. It is not required to explain how it came to its verdict. When deciding whether manslaughter by gross negligence has been proved, the nature of this offence, and the problems of uncertainty and circularity associated with it, are such that the jury is deciding whether the conduct of the defendant should be defined as a crime. Mr Gledhill submits that this is no more and no less than an issue of law. The absence of a reasoned judgment on questions of law engages the right to a fair trial, and the absence of reasons diminishes or extinguishes that entitlement.
39.
After he had fully considered the recent decision of the House of Lords in
R v G and Another
[2004] 1 AC 1034
, Mr Gledhill deployed an additional argument which was not before Langley J. In essence, he submitted that with the exception of causing death by dangerous driving, no serious criminal offence could be committed without mens rea. He relied on what Lord Bingham, at paragraph 32, described as a “salutary principle that conviction of serious crime should depend on proof not simply that the defendant caused (by act or omission) an injurious result to another but that his state of mind when so acting was culpable”. Unless some element of mens rea, such, for example, as recklessness, was a necessary ingredient of manslaughter by gross negligence, this essential principle was contravened.
40.
Mr Gledhill’s submissions were adopted and supported by Mr Kennedy. As we shall see, save for the recent additional argument based on
R v G & Another
, they were also and most cogently advanced by Lord Williams of Mostyn QC, and rejected by the House of Lords in
R v Adomako
[1995] 1 AC 171
. Mr Gledhill, in effect, redeploys the same argument on the basis that, if the ECHR had been incorporated into domestic law when Lord Williams was making his submissions, they would have succeeded. Mr Gledhill’s arguments therefore require us to consider whether the implementation of the ECHR means that we are no longer bound by
Adomako
.
41.
Our analysis of these submissions begins with the simple proposition that at common law a wide variety of unlawful homicides which are not murder are classified as manslaughter. “… Of all crimes manslaughter appears to afford most difficulties of definition, for it concerns homicide in so many and so varying conditions …” (per Lord Atkin in
Andrews v DPP
[1937] AC 576
at 581). However although the difficulty of definition tends to encourage the conclusion that the true ambit of manslaughter is uncertain, the reality is that the offence is based on well-established principles. Involuntary manslaughter (with which we are concerned) encapsulates homicides in which the perpetrator lacked the specific intention to cause death or serious bodily harm and therefore lacked the “malice aforethought” required for murder. In view of some of the more enthusiastic submissions made by Mr Gledhill in exchanges with the court, notwithstanding the risk of stating the obvious, we must observe, first, that involuntary manslaughter does not extend criminal liability to deaths caused by accident, or indeed to deaths which occur without some recognised element of fault by the offender, and second, that the existence of the offence itself engages the right to life and its protection by the criminal law.
42.
We are not here immediately concerned with involuntary manslaughter which falls within the category of death resulting from what is sometimes described as an unlawful act likely to cause bodily harm, or alternatively, from an unlawful and dangerous act. (On this topic generally, see the discussion in Smith and Hogan, Criminal Law, 10th edition at pp. 378-385). Professor Sir John Smith QC explained that in this category of manslaughter (that is, causing death by an unlawful and dangerous act) the ingredient of unlawfulness “must arise otherwise than through negligence”.
“This requirement is implicit in the rule in
Church
. An act which all sober and reasonable people would realise entailed the risk (sc., an unjustifiable risk) of harm to others or most certainly becomes the tort of negligence when harm results and therefore the reference to “an unlawful act” would be otiose if it did not mean unlawful in some other respect. This is in accordance with the well-established rule that negligence sufficient to found civil liability is not necessarily enough for criminal guilt, that death caused in the course of committing the tort of negligence is not necessarily manslaughter. But the limitation goes further than this: there are degrees of negligence which are
criminally
punishable which are yet not sufficient to found a charge of manslaughter. If, then, the unlawfulness, whether civil or criminal, of the act arises solely from the negligent manner in which it is performed, death caused by the act will not necessarily be manslaughter. This follows from the decision of the House of Lords in
Andrews v DPP
.
…
The distinction evidently intended viz. between acts which are unlawful because of negligent performance and acts which are unlawful for some other reason, is at least intelligible and, in view of the established distinction between civil and criminal negligence, a necessary limitation.”
43.
This is the background against which the offence of involuntary manslaughter by gross negligence must be addressed. The offence has long been recognised by the common law, and it has recently been examined in the House of Lords in
Adomako
. An account of its historic development is therefore unnecessary.
44.
A number of problematic matters were considered in
Adomako
. First, as a matter of ordinary English, manslaughter by gross negligence and manslaughter by recklessness sound very similar. It was therefore arguable that, in reality, they amounted to the same offence, rather than two distinct forms of involuntary manslaughter. Second, given that death could and did arise from reckless driving of motor vehicles, the development of an additional species of manslaughter, motor manslaughter, might be discerned. The third issue for consideration was the impact on the offence of manslaughter by recklessness (and possible also on manslaughter by gross negligence) of the well-known and troublesome decisions of the House of Lords in relation to the meaning of recklessness in criminal statutes. (
Metropolitan Police Commissioner v Caldwell
[1982] AC 341
, and
R v Lawrence
[1982] AC 510
). The problem was further complicated by the later decision of the House of Lords in
R v Seymour
[1983] 2 AC 493
, where the indictment charged manslaughter by reckless driving and it was said that recklessness in the sense described in
Caldwell
and
Lawrence
applied to all offences, including manslaughter, “unless Parliament has otherwise ordained”. It is sufficient to note the answer given to the certified question by Lord Roskill in the only speech in the House of Lords:
“Where manslaughter is charged and the circumstances are that the victim was killed as a result of the reckless driving of the defendant on a public highway, the trial judge should give the jury the directions suggested in
R v Lawrence
.”
He added that it was “appropriate also to point out that in order to constitute…manslaughter, the risk of death being caused by the manner of the defendant’s driving must be very high”. The reference to “the risk of death” should be noted: so should the recent departure of the House of Lords from its own decision in
Caldwell
(
R v G and Another
[2004] 1 AC 1034
).
45.
The fourth matter for consideration was linked with the fact that Adomako’s unsuccessful appeal to the Court of Appeal Criminal Division had been decided at the same time as successful appeals by Prentice and Sullman, who were also doctors whose negligence was said to have caused the death of a patient (
R v Prentice and Others
[1994] QB 302). The convictions of Prentice and Sullman were quashed on the basis that the judge’s direction meant that the jury did not consider any “excuses” or relevant mitigating circumstances when deciding whether gross negligence had been established. That error did not apply to
Adomako
, to which we must now return.
46.
Adomako was an anaesthetist who was convicted of manslaughter by gross negligence. His patient underwent an operation to his eye. During the course of the operation an endotracheal tube became disconnected. The patient was deprived of oxygen. Adomako’s alleged negligence arose from his failure to observe or respond to obvious signs that a disconnection had taken place and that the patient had stopped breathing. At trial it was accepted that he had been negligent in the sense that he had failed to observe appropriate professional standards to a patient to whom he owed a duty of care. The issue was whether his conduct fell within the ambit of manslaughter by gross negligence.
47.
In the House of Lords, the earlier authorities were fully reviewed. Reference was made to the Consultation Paper by the Law Commission on Criminal Law, Involuntary Manslaughter (1994) (Law Com. No. 135) but not, of course, to their recent Paper on the same subject, (Law Com. No. 237), which had not yet been published. Submissions advanced by Lord Williams of Mostyn QC, on behalf of the appellant, were directed at establishing the absence of any “logical or jurisprudential difference” between cases of involuntary manslaughter caused by the driving of motor vehicles and those caused by any other means. Attention was directed to the possible impact of
Lawrence
[1982] AC 510
and
Seymour
[1983] 2 AC 493
. Lord Williams suggested the single test of recklessness for all cases of involuntary manslaughter, and mounted a sustained criticism of the offence for its lack of clarity and certainty, and its circularity, because the jury was directed to convict only if they thought that a crime had been committed. Accordingly the offence of manslaughter by gross negligence could not properly be sustained.
48.
The decision of the House of Lords in
Adomako
clearly identified the ingredients of manslaughter by gross negligence. In very brief summary, confirming
Andrews v DPP
[1937] AC 576
, the offence requires first, death resulting from a negligent breach of the duty of care owed by the defendant to the deceased, second, that in negligent breach of that duty, the victim was exposed by the defendant to the risk of death, and third, that the circumstances were so reprehensible as to amount to gross negligence.
49.
No issue arises whether both appellants owed a duty of care to the deceased, or were negligently in breach of it. There was however helpful argument about the nature of the relevant risk. Was it, as the judge directed the jury in the present case “serious risk to life”, or was it much broader, extending to serious risk to safety as well as life? In its original formulation in
Bateman
, Lord Hewitt CJ referred to “disregard to the life and safety of others” in the sense of serious injury. In
Seymour
, the risk was confined to the risk of death. In
Stone
[1977] QB 554
and
West London Coroner, ex parte Grey
[1988] QB 467
reference was made to risks in broader terms, extending to health and welfare. Although Lord Mackay spoke in approving terms of these decisions in a different context, it is clear that his approval was directed to the deployment of the word “reckless”. He was not addressing, and it would have been inconsistent with his own analysis of the legal principles if he were approving, the wider basis for identifying risk described in
Stone
and
West London Coroner ex parte Grey
. It is also striking that Lord Mackay did not expressly adopt or approve the broader formulation of risk made by Lord Taylor CJ in
Prentice
. Since
Adomako
, this issue has been addressed in this court, in
R v Singh (Gurphal)
[1999] CLR 582 and the Divisional Court in
Lewin v CPS
, unreported, 24 May 2002. In
Gurphal Singh
, this court strongly approved the trial judge’s direction in a case of manslaughter by gross negligence that “the circumstances must be such that a reasonably prudent person would have foreseen a serious and obvious risk not merely of injury, even serious injury, but of death”. In
Lewin
, the Divisional Court applied that direction.
50.
Mr David Perry, on behalf of the Attorney General, informed us that, as a matter of policy, when making a decision whether to prosecute for this offence in cases like the present, the Director of Public Prosecutions looks for evidence of an obvious risk of death, and that, if the extent of the risk were limited to the obvious risk of serious injury, and no more, prosecution would not follow.
51.
The editors of Blackstone’s Criminal Practice suggest that the law needs clarification, and that, if it were clarified, some “degree of symmetry” between murder and manslaughter would be achieved if, for the purposes of gross negligence manslaughter, the risk should extend to grievous bodily harm. Professor Smith took the contrary view, suggesting that “if we are to have an offence of homicide by gross negligence at all, it seems right that it should be…limited. The circumstances must be such that a reasonably prudent person would have foreseen a serious risk, not merely of injury, even serious injury, but of death”.
52.
There will, of course, be numerous occasions when these distinctions are entirely theoretical. From time to time, however, they will be of great significance, not only to the decision whether to prosecute, but also to the risk of conviction of manslaughter. In our judgment, where the issue of risk is engaged,
Adomako
demonstrates, and it is now clearly established, that it relates to the risk of death, and is not sufficiently satisfied by the risk of bodily injury or injury to health. In short, the offence requires gross negligence in circumstances where what is at risk is the life of an individual to whom the defendant owes a duty of care. As such it serves to protect his or her right to life.
53.
Adomako
further explained that with involuntary manslaughter, notwithstanding
Seymour
, recklessness as explained in the
Lawrence
/
Caldwell
sense had no application. The use of the word “reckless” by the trial judge, as part of his exposition of the concept of gross negligence in an appropriate case, was permissible. In the single speech agreed by the other members of the House, as we have already indicated, Lord Mackay approved
Stone
and
West London Coroner, ex parte Grey
as examples of an acceptable use of the word “reckless” in its ordinary connotation. In
Stone
, Geoffrey Lane LJ described examples of “recklessness”, and reflected the observations of Lord Atkin in
Andrews
that reckless “was an appropriate epithet for the very high degree of negligence required before the defendant could be convicted of manslaughter by gross negligence.” Although the word “reckless” might be deployed in summing up to the jury, its use simply reflected one way of describing the ingredients of the offence. At the end of his speech Lord Mackay’s language was quite unequivocal:
“While therefore I have perhaps said in my view it is perfectly open to a trial judge to use the word ‘reckless’ if it appears appropriate in the circumstances of a particular case, as indicating the extent to which the defendant’s conduct must deviate from that of a proper standard of care, I do not think it right to require that this should be done, and certainly not right that it should incorporate the full detail required in
Lawrence
.”
54.
The point of law certified for the decision of the House of Lords was answered:
“In cases of manslaughter by criminal negligence involving a breach of duty, it is a sufficient direction to the jury to adopt the gross negligence tests set out by the Court of Appeal in the present case, following
Rex v Bateman
19 Cr App R 8
, and
Andrews v Director of Public Prosecutions
[1937] AC 576
, and that it is not necessary to refer to the definition of recklessness in
Reg. v Lawrence
[1982] AC 510
, although it is perfectly open to the trial judge to use the word ‘reckless’ in its ordinary meaning as part of his exposition of the law if he deems it appropriate in the circumstances of the particular case.”
The result of the appeal was that the continuing existence of the offence of manslaughter by gross negligence was confirmed. The attempt to replace manslaughter by gross negligence with manslaughter by recklessness was rejected.
55.
It is convenient now to address the argument that the decision in
R v G and Another
should lead us to reassess whether gross negligence manslaughter should now be replaced by and confined to reckless manslaughter. As we have shown, precisely this argument by Lord Williams of Mostyn was rejected in
Adomako
. We also note, first, that Parliament has not given effect to possible reforms on this topic discussed by the Law Commission and, second, notwithstanding that
Adomako
was cited in argument in
R v G and Another
, it was not subjected to any reservations or criticisms. Indeed in his speech Lord Bingham of Cornhill emphasised that in
R v G
he was not addressing the meaning of “reckless” in any other statutory or common law context than section 1(1) and (2) of the
Criminal Damage Act 1971
. In these circumstances, although we gave leave to Mr Gledhill to amend his grounds of appeal to enable him to deploy the argument, we reject it.
56.
We can now reflect on Mr Gledhill’s associated contention that if recklessness is not a necessary ingredient of this offence, the decision in
Attorney General’s Reference (No. 2 of 1999)
[2000] QB 796
led to the unacceptable conclusion that manslaughter by gross negligence did not require proof of any specific state of mind, and that the defendant’s state of mind was irrelevant. In our judgment the submission is based on a narrow reading of the decision that a defendant may properly be convicted of gross negligence manslaughter in the absence of evidence as to his state of mind. However when it is available, such evidence is not irrelevant to the issue of gross negligence. It will often be a critical factor in the decision (see
R (Rowley) v DPP
[2003] EWHC 693). In
Adomako
itself, Lord Mackay directed attention to “all” of the circumstances in which the defendant was placed: he did not adopt, or endorse, or attempt to redefine the list of states of mind to which Lord Taylor CJ referred in
Prentice
, which was not in any event “exhaustive” of possible relevant states of mind. It is therefore clear that the defendant is not to be convicted without fair consideration of all the relevant circumstances in which his breach of duty occurred. In each case, of course, the circumstances are fact-specific.
57.
Mr Gledhill nevertheless contended that even so, the problem of mens rea remains. This, he argued was a necessary, but absent ingredient of the offence. We have reflected, of course, that if the defendant intends death or really serious harm, and acts in such a way to cause either, and death results, he would be guilty of murder. If he intends limited injury, and causes death, he would be guilty of manslaughter in any event. We are here concerned with the defendant who does not intend injury, but who in all the contemporaneous circumstances is grossly negligent. As a matter of strict language, “mens rea” is concerned with an individual defendant’s state of mind. Speaking generally, negligence is concerned with his failure to behave in accordance with the standards required of the reasonable man. Looked at in this way, the two concepts are distinct. However the term “mens rea” is also used to describe the ingredient of fault or culpability required before criminal liability for the defendant’s actions may be established. In
Sweet v Parsley
[1970] AC 132
, Lord Reid explained that there were occasions when gross negligence provided the “necessary mental element” for a serious crime. Manslaughter by gross negligence is not an absolute offence. The requirement for gross negligence provides the necessary element of culpability.
58.
We can now return to the argument based on circularity and uncertainty, and the application of Articles 6 and 7 of the ECHR. The most important passages in the speech of Lord Mackay on the issue of circularity read:
“… The jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal.
It is true that, to a certain extent, this involves an element of circularity, but in this branch of the law I do not believe that is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal…The essence of the matter which is supremely a jury question is whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission.”
59.
Mr Gledhill suggested that this passage demonstrated that an additional specific ingredient of this offence was that the jury had to decide whether the defendant’s conduct amounted to a crime. If the jury could, or was required to, define the offence for itself, and accordingly might do so on some unaccountable or unprincipled or unexplained basis, to adopt Bacon, the sound given by the law would indeed be uncertain, and would then strike without warning. Mr Gledhill’s argument then would be compelling.
60.
Looking at the authorities since
Bateman
, the purpose of referring to the differences between civil and criminal liability, whether in the passage in Lord Mackay’s speech to which we have just referred, or in directions to the jury, is to highlight that the burden on the prosecution goes beyond proof of negligence for which compensation would be payable. Negligence of that degree could not lead to a conviction for manslaughter. The negligence must be so bad, “gross”, that if all the other ingredients of the offence are proved, then it amounts to a crime and is punishable as such.
61.
This point was addressed by Lord Atkin in
Andrews
at p. 582, when he referred to
Williamson
(1807) 3 C&P 635:
“....where a man who practiced as an accoucheur, owing to a mistake in his observation of the actual symptoms, inflicted on a patient terrible injuries from which she died.” To substantiate that charge – namely, manslaughter – Lord Ellenborough said, “The prisoner must have been guilty of criminal misconduct, arising either from the grossest ignorance or the most criminal inattention.” The word “criminal” in any attempt to define a crime is perhaps not the most helpful: but it is plain that the Lord Chief Justice meant to indicate to the jury a high degree of negligence. So at a much later date in
Bateman
[1925] 18 Cr. App. R 8 a charge of manslaughter was made against a qualified medical practitioner in similar circumstances to those of Williamson’s case .... I think with respect that the expressions used are not, indeed they were probably not intended to be, a precise definition of the crime.”
62.
Accordingly, the value of references to the criminal law in this context is that they avoid the danger that the jury may equate what we may describe as “simple” negligence, which in relation to manslaughter would not be a crime at all, with negligence which involves a criminal offence. In short, by bringing home to the jury the extent of the burden on the prosecution, they ensure that the defendant whose negligence does not fall within the ambit of the criminal law is not convicted of a crime. They do not alter the essential ingredients of this offence. A conviction cannot be returned if the negligent conduct is or may be less than gross. If however the defendant is found by the jury to have been grossly negligent, then, if the jury is to act in accordance with its duty, he must be convicted. This is precisely what Lord Mackay indicated when, in the passage already cited, he said, “…The jury must go on to consider whether that breach of duty should be characterised as gross negligence and
therefore
as a crime” (our emphasis). The decision whether the conduct was criminal is described not as “the” test, but as “a” test as to how far the conduct in question must depart from accepted standards to be “characterised as criminal”. On proper analysis, therefore, the jury is not deciding whether the particular defendant ought to be convicted on some unprincipled basis. The question for the jury is not whether the defendant’s negligence was gross, and whether,
additionally
, it was a crime, but whether his behaviour was grossly negligent and
consequently
criminal. This is not a question of law, but one of fact, for decision in the individual case.
63.
On examination, this represents one example, among many, of problems which juries are expected to address on a daily basis. They include equally difficult questions, such as whether a defendant has acted dishonestly, by reference to contemporary standards, or whether he has acted in reasonable self-defence, or, when charged with causing death by dangerous driving, whether the standards of his driving fell far below what should be expected of a competent and careful driver. These examples represent the commonplace for juries. Each of these questions could be said to be vague and uncertain. If he made enquiries in advance, at most an individual would be told the principle of law which the jury would be directed to apply: he could not be advised what a jury would think of the individual case, and how it would be decided. That involves an element of uncertainty about the outcome of the decision-making process, but not unacceptable uncertainty about the offence itself.
64.
In our judgment the law is clear. The ingredients of the offence have been clearly defined, and the principles decided in the House of Lords in
Adomako
. They involve no uncertainty. The hypothetical citizen, seeking to know his position, would be advised that, assuming he owed a duty of care to the deceased which he had negligently broken, and that death resulted, he would be liable to conviction for manslaughter if, on the available evidence, the jury was satisfied that his negligence was gross. A doctor would be told that grossly negligent treatment of a patient which exposed him or her to the risk of death, and caused it, would constitute manslaughter.
65.
After Lord Williams’ sustained criticism of the offence of manslaughter by gross negligence, the House of Lords in
Adomako
clarified the relevant principles and the ingredients of this offence. Although, to a limited extent, Lord Mackay accepted that there was an element of circularity in the process by which the jury would arrive at its verdict, the element of circularity which he identified did not then and does not now result in uncertainty which offends against Article 7, nor if we may say so, any principle of common law. Gross negligence manslaughter is not incompatible with the ECHR. Accordingly the appeal arising from the question certified by the trial judge must be dismissed.
66.
This conclusion in effect disposes of the Article 6 argument. It is well-understood in the European Court, and accepted, that a jury is not required to give reasons for its decision. (See, for example,
Saric v Denmark
Application 31913/96.) In the present case, by reference to the indictment in its amended form, and the summing up of the trial judge delivered in open court, the appellants knew the case alleged against each of them, and the issues that the jury had to consider, and we, by reference to the same documents, can examine the basis on which they were convicted. The jury concluded that the conduct of each appellant in the course of performing his professional obligations to his patient was “truly exceptionally bad”, and showed a high degree of indifference to an obvious and serious risk to the patient’s life. Accordingly, along with the other ingredients of the offence, gross negligence too, was proved. In our judgment it is unrealistic to suggest that the basis for the jury’s decision cannot readily be understood. Accordingly this contention fails.
67.
We must now turn to a separate application on behalf of the appellants to call fresh evidence.
Fresh Evidence
68.
At the conclusion of the oral argument, we indicated our decision that the application to call fresh evidence from Professor Michael Campbell was refused. We shall now give our reasons.
69.
Professor Campbell is Professor of Medical Statistics at the University of Sheffield. His speciality is statistics, not medicine. His report is dated 2nd February 2004. It was not commissioned until after the trial and convictions of the appellants. The focus of the report, which we have studied, is statistical material relating to mortality rates for staphylococcal toxic shock syndrome. The essential submission on behalf of the appellants is that this report demonstrates that in relation to the issue of causation of death the jury at trial was presented with an unrealistically high estimate of the deceased’s chances of survival.
70.
Langley J correctly directed the jury that one of the matters about which they had to be sure before the appellants could be convicted was that such failure or failures as were proved against each individually was a substantial, even if not the sole or the major cause of death. His directions include this passage:
“The last element is the element of causation. If the prosecution has made you sure that either or both of the doctors did fail so grossly in their duty of care, then you must consider whether it has also made you sure that the failure or failures were a substantial cause of Sean Phillips’ death. If you are not sure that Sean Phillips would have survived at all, either however well he had been treated or because he might not have received appropriate treatment, then the prosecution has failed to prove its case on this aspect and that is the end of the matter. You must find both defendants not guilty. Equally, if at some point in the events of the Saturday or the Sunday you reach the conclusion that you are not sure that Sean Phillips would have survived beyond that time, then from that time onwards the prosecution will fail to prove that anything Dr Misra or Dr Srivastava did or failed to do was a cause of Sean Phillips’ death, and, whatever you think of the subsequent events, they cannot lead you to a verdict of guilty. If you have any reasonable doubt about when Sean’s condition became irreversible, I repeat that you must give the defendants the benefit of those doubts.”
71.
We must briefly address the way in which evidence of a statistical nature came to be before the jury. The initial evidence tendered on behalf of the Crown did not refer to it. However, some three weeks before trial, the Crown received the defence report from Dr Wilson. This raised the possibility that the deceased’s illness could reasonably have been taken for a different type of infection (clostridium difficile) to that which he did in fact suffer (TSST1). The correct management for this form of infection would have avoided the use of antibiotics. However, in addition, the report set out statistics relating to toxic shock syndrome, which included one study of thirty-five cases in the United Kingdom prior to 1985, where a fatality rate of 16.7% was recorded. It concluded that “deaths occur in 3% of patients who have acute tubular necrosis, inflammatory changes in the liver and ... lung”. A further defence report, served pre-trial from Professor Cartwright, a microbiologist, who was not ultimately called to give evidence before the jury, postulated a fatality rate of “less than 5%”.
72.
Following receipt of the report from Dr Wilson the Crown instructed and obtained a report from Dr Wilcox. The trial began on 3rd March 2003. His report was served on 6th March. As a result of legal argument, the calling of evidence was postponed until 10th March. This report dealt largely with the clostridium difficile point. The short reference made to statistics by Dr Wilcox (presumably in response to the defence expert) reported “the case fatality rate associated with staphylococcal toxic shock syndrome is low (~4%), although this rate is higher in patients with non-menstrual forms of the disease.” Dr Wilcox appended an extract from a textbook, “Principles and Practice of Infectious Diseases”, published in 2000, which showed a fatality rate in non-menstrual cases of “about 3%”. He described this textbook as “the authoritative textbook used by clinical microbiologists in the UK and the US”.
73.
During the course of the Crown’s evidence, but before Dr Wilcox gave evidence, a further report was served on behalf of the defence from Dr Nathwani, a lecturer in infectious diseases. He put the mortality rate in non-menstrual toxic shock syndrome cases at around 4%.
74.
When he was called to give evidence-in-chief, Dr Wilcox gave no statistical evidence. The issue was raised in cross-examination by Mr Gledhill. Dr Wilcox then gave some evidence on the topic. The deceased was one of a relatively small proportion of people who lacked the necessary anti-bodies which would deal with toxins produced by staphylococcus aureus, and referred to an overall fatality rate of less than 5%. He indicated that different reports showed different figures. This evidence was not initially challenged by Mr Gledhill, and when Mr Coonan QC, then acting for Dr Srivastava cross-examined Dr Wilcox, he too referred to the 5% figure in a way which did not challenge it. However on the next day, Dr Wilcox was recalled for further cross-examination by Mr Gledhill, who put to him that certain individual studies tended to show a much higher fatality rate than 5%. Dr Wilcox responded that he did not consider that useful figures could be drawn from very small studies, and that the “ballpark” figure of 5% was based on taking a group of reported studies. In effect, he emphasised the need for caution and the limited conclusions which could properly be drawn from the statistics. He pointed out that he had referred to medical literature consulted by all the experts, as well as the standard textbook, adding that he expected a fit and healthy 31 year old (such as the deceased) would be at the lower end of the mortality rate range, although he was not in a position to quote any statistical information about the risks which might apply to such an individual.
75.
Professor Forrest gave no evidence of a statistical nature, and he was not cross-examined on the subject.
76.
We have recorded, and shall not repeat, a summary of the evidence given by Professor Forrest and Dr Wilcox on the causation issue, based on their analysis of the clinical evidence, the standards of management, and remaining matters (other than statistical evidence) which bore on this question.
77.
When Dr Wilson gave evidence for the defence, he explained that he thought that the fatality rate was speculative, because the condition from which the deceased suffered was so rare that there was a lack of verifiable information on which to base properly drawn conclusions. He mentioned a non-menstrual fatality rate of 11% (which had not appeared in his report) and was thus suggesting a higher fatality rate than Dr Wilcox. He did however point out that this rate was based on a small number of cases. Having stated that there was a greater than a 3% to 5% risk of death in any patient suffering from toxic shock syndrome, he said that as time passed, while the patient suffered from the condition without treatment, the risk of fatality increased.
78.
This provides the context in which we considered the report from Professor Campbell. The issue of statistics had been introduced and pursued by the defence. It had not formed any positive part of the Crown’s case, although when cross-examined, one of the Crown experts, Dr Wilcox, gave evidence on the topic. At trial, the balance of evidence from both sides seemed to suggest a figure in the order of 5% as the appropriate overall statistical figure for fatality rates.
79.
In his report, Professor Campbell refers to the four small studies about which Dr Wilcox had been cross-examined. It was agreed before us however that one study (of menstrual toxic shock cases) was irrelevant for present purposes. That left three studies for consideration by Professor Campbell. He suggested that two of these papers advanced a higher fatality rate than the 5% mentioned by Dr Wilcox, adding however, that the data sets were small, and that there would be considerable uncertainty about the fatality rate. He further pointed out that the data were old, and that by now the risk may have been reduced. Indeed he referred to wide confidence intervals (or margins of error) in calculating fatality rates in all three of these studies. The third study analysed thirty-six cases, where the subjects were aged between ten months and seventy-four years. Professor Campbell suggested that this study did not identify the age of the victim as a risk-factor, adding that in the absence of any controlled trials, it was not possible to put a figure on the mortality rates among those encompassed in this study who were treated appropriately.
80.
Professor Campbell did not consider that there were sufficient data to express an opinion whether the chance of death in the case of Sean Phillips was low or high. The disease from which he suffered was very rare, and therefore a great deal of uncertainty attached to any estimates. He suggested that it was always dangerous “to try to extrapolate a medical model without empirical evidence”. He agreed that Dr Wilcox was correct to state (as he did) that there was no relevant statistical information about the risks attaching to a thirty-one year old man, suffering from TSST1, who is properly treated. However he pointed out that there was no individual study which highlighted that younger people were at a lower risk of death. He expressed the view that the experts’ conclusions at trial did not appear to be drawn from the published studies, and that some of the opinions expressed by them were unsupported by evidence. However he made no reference to the textbook, “Principles and Practice of Infectious Diseases”, upon which Dr Wilcox based his overall figures and to which he referred when this issue was explored.
81.
This material led Mr Gledhill to submit that Professor Campbell’s evidence was important in two respects. First, it showed that there was no statistical evidence that age was a prognostic factor, or that ability to cope with toxins was related to age. Second, the breadth of the confidence intervals described by Professor Campbell undermined the statistical evidence given by Dr Wilcox. This evidence would significantly increase the prospect that the jury might have been unable to be sure of any causal link between the absence of appropriate treatment and Sean Phillips’ death. Mr Kennedy, for Dr Srivastava, supported these submissions, particularly in relation to what he characterised as the “fit and healthy mantra”.
82.
The Crown’s position before us, in essence, was that this issue, so far as it had any relevance at all, was introduced and pursued at trial by the appellants, and that all the evidence on the issue should have been raised then. In the result, the balance of evidence available to all sides at trial suggested that a figure in the order of 5% provided the appropriate overall base figure for fatality rates. The material provided by Professor Campbell would not, it was argued, provide any basis for allowing the appeals and the statistical material failed to address the clinical aspects of the causation issue.
83.
We need not recite
s 23 of the Criminal Appeal Act 1968
. The principles are well-understood. In general, the defendant must deploy his case before the trial jury. If he were free on appeal to mount a case based on expert evidence which could and should have been advanced before the jury, the trial process would be subverted. Therefore the absence of any reasonable explanation for failing to adduce such evidence is a highly material factor to the exercise of the court’s powers under s 23. Nevertheless this would not provide an absolute bar or prohibit the reception of fresh evidence if this were necessary or expedient in the interests of justice.
84.
The narrative of events demonstrates that evidence of a statistical nature was introduced into the case, and eventually the trial, by the defendants. When Dr Wilcox was cross-examined, his evidence on this topic was not seriously controversial. Dr Wilson suggested that there were studies which tended to produce a higher figure than that advanced by Dr Wilcox, but his essential dispute with him turned on the emphasis which could properly be attached to this statistical material. The defence did not call either of the other experts available to them, who had put the fatality rate in the same range as Dr Wilcox and so, at trial, they depended on Dr Wilson. Mr Gledhill candidly explained to us that after Dr Wilcox had rejected the proposition that real value should properly be attached to the small studies which were put to him in cross-examination, the defence considered whether a statistician should be approached. One was identified. His secretary was contacted, but the statistician could not then make himself available. No further step was taken. No enquiry was made even in general terms as to whether a statistician could in fact help. No application was made to the judge for the trial to be adjourned, let alone for the jury to be discharged. These decisions were deliberate and conscious. Mr Gledhill said that the defence were happy to rely on Dr Wilson as their expert. The general feeling was that the trial had gone well from the defence point of view, and they did not really know what the statistician could or would say. So it was decided to rely on Dr Wilson to counterbalance Dr Wilcox on this issue. Regrettably from the defendants’ point of view, Dr Wilson’s evidence failed to match up to their expectations. We understand the tactical dilemma faced by the defence at trial, but the application to adduce expert evidence in this appeal is to be contrasted with cases where the defence at trial were wholly unaware of the availability of potentially relevant information. In reality, there is no reasonable explanation for the failure to adduce Professor Campbell’s evidence, or evidence from a similarly qualified expert, before the jury.
85.
In any event, we considered the possible impact of Professor Campbell’s report. It does not directly address Dr Wilcox’s reference to an authoritative textbook, upon which he said (and we have no reason to doubt) the other experts in the case had relied. The report considers four small-scale studies which were put to Dr Wilcox in cross-examination, one of which is now agreed to be irrelevant. The report acknowledges the limitations of the data in these studies, and concedes, as Dr Wilcox asserted in his evidence, that it was unsafe to extrapolate too much from such limited material. Indeed it supports Dr Wilson’s view that the rarity of the condition and the overall lack of relevant data means that no statistically sound mortality rate could safely be put forward. By implication therefore it suggests that this issue should not have been raised by the defence at all.
86.
We must return to the two principal matters relied on by Mr Gledhill. There is no statistical evidence that a previously fit, thirty-one year old had a better chance of survival than anyone else. However Dr Wilcox said as much in his evidence. The small-scale studies considered by Professor Campbell make no observations either way about the relevance of age, and they do not in our judgment serve to undermine Dr Wilcox’s evidence. His analysis of the deceased’s prospects of survival depended on much more than statistics. Nothing raised by Professor Campbell deals with the clinical assessments made by Dr Wilcox (and Professor Forrest).
87.
The second matter relates to broad confidence intervals. These occur in relation to every small-scale study. Dr Wilcox commented in his evidence on the limitations of small-scale studies as a basis for reaching any firm conclusion. On close analysis, Professor Campbell confirms the reservations expressed to the jury by Dr Wilcox.
88.
In our judgment, this further statistical material is of very questionable assistance, and appears to us to add very little, if anything, to the “statistical” evidence which was available at trial, and deployed before the jury. From the Crown’s point of view, the material was peripheral to the issue of causation. To the extent that it was relevant, the material should have been adduced at trial. We were unpersuaded that it was necessary or expedient in the interests of justice in either of these appeals for this evidence to be admitted. For these reasons the application to call evidence from Professor Campbell failed.
89.
These appeals are dismissed.
90.
An application to certify a point of law of general importance was adjourned for counsel to furnish the court with written submissions. | ```yaml
citation: '[2004] EWCA Crim 2375'
date: '2004-10-08'
judges:
- THE RIGHT HONOURABLE LORD JUSTICE JUDGE
- THE HONOURABLE MR 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:
[2015] EWCA Crim 843
Case No:
2014/5020/A7
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Monday, 30 March 2015
B e f o r e
:
LORD JUSTICE JACKSON
MR JUSTICE SWEENEY
THE RECORDER OF REDBRIDGE
HIS HONOUR JUDGE RADFORD
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - -
R E G I N A
v
AARON SHUCKSMITH
- - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - -
Mr D Benjamin
appeared on behalf of the
Appellant
- - - - - - - - - - - - - - -
J U D G M E N T
LORD JUSTICE JACKSON:
1.
This is an appeal against sentence.
2.
The facts giving rise to this litigation are as follows. The appellant is a 25 year old man with a bad criminal record. That record spans all manner of offences involving violence, drugs and theft.
3.
On 6th January 2014 the police were looking for a BMW car, which had been involved in a collision. They found the car parked in King Street, Margate. The appellant was standing by the driver's door and a woman was standing by the passenger's door. The police questioned the appellant who promptly gave a false name. They then took the car keys from the appellant and searched the vehicle. Inside they found a bag containing herbal cannabis and a wooden handled machete. The handle was protruding upwards next to the driver's seat. This meant that the machete could be rapidly and easily picked up and put to use.
4.
The police arrested the appellant and took him to Margate Police Station. The appellant had a small black wrap concealed in his underwear and a larger blue wrap clenched between his buttocks. The appellant attempted to discard these items unobtrusively but police officers foiled those attempts. The two wraps contained a total of 23 grams of heroin.
5.
The appellant was charged with two offences. Count 1 on the indictment was possessing a controlled drug of Class A with intent to supply. Count 2 was having an article with a blade or point. The appellant pleaded guilty to both offences at Canterbury Crown Court at a preliminary hearing on 13th October 2014. There was not time to pass sentence that day. On 16th October 2014 the appellant appeared at the same crown court for sentence before His Honour Judge O'Mahoney.
6.
The judge reviewed the appellant's criminal record. He noted that on two occasions the appellant had been convicted of offences involving Class A drugs. The first of those occasions was 13th October 2004 (two offences of possession with intent to supply). The second occasion was 13th August 2010 (three offences of supplying cocaine and heroin). There was also a subsequent class A drugs offence which was committed after the date of the offence with which we are concerned. As we have said, the appellant had a bad record with a number of other offences beyond the realm of drugs. The judge correctly noted that the minimum sentence provisions set out in
section 110 of the Powers of Criminal Courts (Sentencing) Act 2000
applied. Those provisions required a minimum sentence of seven years imprisonment.
Section 144 of the Criminal Justice Act 2003
provides that the maximum credit which can be given for a plea of guilty in that circumstance is 20 per cent.
7.
The judge sentenced the appellant to a total of seven years' imprisonment on count 1 and nine months' imprisonment on count 2. The sentence on count 2 was concurrent. In arriving at his sentence the judge referred to the sentencing guidelines. He noted that this case fell within category 3 as set out on page 12 of the guidelines and that the appellant's role was significant. The category range for such an offence is between three and a half years and seven years' imprisonment. The judge said he was giving to the appellant full credit for his plea. He also was taking into account the fact that the machete offence was being dealt with by means of a concurrent sentence.
8.
The appellant is aggrieved by the length of sentence imposed and he appeals to the Court of Appeal.
9.
The grounds of appeal are very concisely set out in writing by the appellant's counsel. Essentially the argument is that the judge must have taken too high a starting point in order to arrive at a total sentence of seven years' imprisonment after giving full credit for the plea of guilty.
10.
It seems to us that some of the reasoning set out in the sentencing remarks is problematic. We have come to the conclusion that there is force in the grounds of appeal. Mr Benjamin, who appears for the appellant, submits that the proper sentence for this drugs offence, having regard to the circumstances, would be a term of seven years' imprisonment. That is the very top of the range for category 3 significant role as set out in the guidelines. We agree. Mr Benjamin submits that the possession of the machete cannot increase the starting point to the extent that is implicit in the judge' reasoning. We note what the judge said about the machete offence.
11.
We have come to the conclusion that if the totality of the appellant's offending is to be reflected in the sentence on count 1, then the total sentence on count 1 would be eight years before taking into account the plea of guilty. There would then be a concurrent sentence of nine months on count 2. If one then gives credit for the plea of guilty, the total sentence of eight years would be reduced to 64 months by our calculations.
12.
At this point, as Mr Benjamin has pointed out, it is necessary to have regard to the case of
Gray
[2007] EWCA Crim. 979
; [2007] 2 Cr.App.R (S) 78. The Court of Appeal in
Gray
said that the correct approach was to work out the proper sentence for the appellant's offending after giving credit for the plea. If one arrived at a term which was less than 80 per cent of the specified minimum term, one should then increase the sentence to 80 per cent of the minimum term. Following the guidance in
Gray
as set out at paragraph 10 of that judgment, we shall increase the sentence of 64 months to 68 months in order to comply with the statutory provisions concerning minimum sentence. In the result therefore, we allow this appeal, we reduce the sentence on count 1 to five years eight months. We leave the concurrent sentence of nine months' imprisonment in place. As a result the appellant's total term of imprisonment is now five years and eight months. | ```yaml
citation: '[2015] EWCA Crim 843'
date: '2015-03-30'
judges:
- LORD JUSTICE JACKSON
- 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}
======
| Case No:
201500281 B2
Neutral Citation Number:
[2016] EWCA Crim 451
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CANTERBURY CROWN COURT
HHJ O’Mahoney
T20130688
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
26/04/2016
Before:
LORD JUSTICE McCOMBE
MRS JUSTICE McGOWAN
and
THE RECORDER OF LEEDS
(HIS HONOUR JUDGE COLLIER QC)
(sitting as a Judge of the Court of Appeal (Criminal Division))
- - - - - - - - - - - - - - - - - - - - -
Between:
Nupar MITTAL
Applicant
- and -
REGINA
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Satnam Bains
(instructed by 1215 Chambers) for the Applicant
Andrew Forsyth
(instructed by
Crown Prosecution Service) for the Respondent
Hearing date: 12 April 2016
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice McCombe:
1.
On 9 May 2014 in the Crown Court at Canterbury, after a trial before HHJ O’Mahony and a jury, the applicant was convicted of an offence of theft and on 19 June 2014 she was sentenced by the judge to pay a fine of £5,000 and was ordered to pay a contribution towards the costs of the prosecution.
2.
Her application for an extension of time in which to apply for leave to appeal against conviction (the application being made a little over 7 months late) was referred to the Full Court by the Single Judge. We heard the application on 12 April 2014 and, at the conclusion of that hearing, we granted the applicant leave to appeal (and with it the extension of time sought) but informed the parties that we would dismiss the appeal for reasons to be given in writing at a later date. These are our reasons.
3.
The appellant (as she now is) explained the delay in making her application by her having suffered a major depressive illness after the trial and having travelled to India for family support and care. There was also delay in recovering papers from her former solicitors and in raising funds to obtain further advice. She had been privately represented at trial and trial counsel had advised in negative terms with regard to any appeal. We are not entirely satisfied that these reasons were sufficient on their own to warrant the grant of the extension of time sought. However, having considered the merits of the proposed appeal, we considered that the matter was sufficiently arguable to justify a grant of an extension of time for the matter to be fully considered.
4.
The facts of the case can be shortly stated. The appellant was, at the material time, a doctor employed at a medical centre in Canterbury. The complainant, Ms Kelly Wissenden attended the centre to seek medical advice for her son of 9 months old. She had no appointment, but waited until a doctor could see her and the child. The appellant became available and Ms Wissenden and her son, in his buggy, entered the consulting room. When Ms Wissenden left the consultation, she found that a sum of £130, which had been in her purse, was missing; she reported it to the receptionist. A search was undertaken and the money was found, crumpled up in or near a changing table in the lavatory.
5.
It is not necessary to say much about the disputes of fact between the Crown and the defence in view of the narrow issue of law that comes before the court today. In short, however, the complainant said that her purse containing the money in question had been left by her in the baby changing bag, slung over the handles of the child’s buggy, in the appellant’s consulting room when the complainant went briefly to the lavatory, with the changing facilities we have mentioned, in order to change the child’s nappy and to make available a stool sample that the appellant wanted for analysis. The complainant said that on her return to the consulting room she found her purse open in the changing bag. On leaving, she found the money missing and reported the loss to the receptionist and stated her the suspicion that the appellant had taken the money. A search of the changing area in the surgery lavatory led to the money (all in notes) being found by the receptionist, while in the company of the appellant, crumpled up in a corner near a hinge on the changing unit’s surface. The complainant made a formal complaint and the matter was reported to the police. On the same evening, the appellant telephoned the complainant asking her not to pursue the matter with the police and denying she had taken the money. There was a dispute as to what was said in this conversation. According to the complainant, the appellant said things that would later prove to be untrue in an attempt to dissuade the complainant from taking the matter further. The appellant in contrast said that she had merely telephoned to ask why a complaint had been made when she had done nothing at all wrong. As to the incident itself, the appellant maintained in evidence that Ms Wissenden had taken the changing bag (and by implication, the purse) with her to the bathroom when she went to change the baby; thus, there could have been no opportunity for the appellant to take the money.
6.
It is clear that on these disputed facts the jury accepted the complainant’s account of the incident and disbelieved the appellant.
7.
The sole issue on the appeal relates to the question of the appellant’s previous character and its handling at the trial. It seems that at a late stage in the week before the trial it came to light that on 17 December 2011 an incident had occurred at a shop in Kilmarnock in Scotland which had led to the appellant being charged with an offence of shoplifting. The items involved were six lipsticks and two packets of sweets for which the appellant had not paid when she had nonetheless paid for other items acquired at the store. When cautioned and charged the appellant was said to have replied, “I would never do anything like that and I forgot that they were in my bag”. The matter was reported to the Procurator Fiscal who wrote to the appellant on 28 January 2012.
8.
The terms of that letter should be set out in full:
“You have been reported to me for allegedly committing the following offence(s): -
(1)
Theft by shoplifting on 17 December 2011 at Tesco, West Shaw Street, Kilmarnock in that you did steal a quantity of cosmetics and confectionary.
Consideration of this report shows that the evidence is sufficient in law to justify my bringing you before the Court.
I have decided, however, in all the circumstances of the present case, not to bring proceedings.
You should note that if a similar report against you is submitted to me in the future, and there is sufficient evidence in law to justify my bringing you before the Court, you may well be prosecuted.
If you accept this warning or if you are deemed to have accepted it, I shall not prosecute you for the above offence(s).
The warning is not a conviction and shall not be recorded as one. Any alleged victim may be entitled to be notified of the disposal of the case against you.
Information about this warning will however be recorded on the Scottish Criminal History System (SCHS) and will remain on the system for two years. This will be used to help inform future police or prosecution decisions if you offend again and it will be disclosable under ‘enhanced disclosure’ in terms of Part V of the
Police Act 1997
during this time.
If you wish to challenge this warning and wish to be tried in a criminal court for the above offence(s), you may refuse this warning.”
The letter proceeded to summarise the evidence in these terms:
“
Description of locus
The locus of this offence is Tesco Store, West Shaw Street, Kilmarnock.
Description of
event
On 17
th
December 2011 the witnesses Millar, Allen and Goodman were working at the locus in their capacity of Loss Prevention Officer, Security Manager and Security Guard.
About 1930 hours on the same date the witnesses Millar and Goodman, who were within the rear security room monitoring the stores CCTV, became aware of the accused at the make-up aisle. The accused was with a child who was within a shopping trolley. They observed the accused pick up various cosmetics and place the cosmetics within her bag in the trolley and zipped her bag back up. The accused then selected two boxes of Veet wax strips and transferred the wax strips from one box into the other and discarded the empty box and placed the other box within her trolley. The accused then continued to walk around the store and allowed her child to eat a box of Maltesers and then discard the empty box. She then took a packet of fruit flakes sweets off the shelf and fed them to her child as she made her way around the store.
The accused then made her way to the pay point and paid for various items that were within her trolley. She did not make any attempt to pay for the cosmetics that were within her handbag or the Maltesers or the packet of sweets. The accused then left the store.
The witness Goodman then stopped the accused outside and identified himself as Tesco Security and asked the accused to return to the store as he suspected her to have items on her person that she had not paid for. The accused then returned into the search room of the store where the witness Goodman and Allen informed the accused that they suspected her to have left the store with items she had not paid for and asked for the accused to produce them. The accused shook her head.
The witnesses Goodman and Allen checked the accused’s receipt against the shopping she had in her trolley and everything matched. The witness Allen asked the accused to empty her bag. The accused emptied her bag and within were six Max Factor lipsticks from the store. The witnesses asked if she could explain and the accused stated that she forgot they were in her bag. The witness Millar then contacted the police.
About 2050 hours on the same date police witnesses Low and Kilpatrick attended at locus and viewed the CCTV footage of the aforementioned. Police witness Kilpatrick, in the presence of police witness Low, thereafter cautioned and charged the accused and noted the accused’s reply to the charge. The accused was informed a report would be sent to the Procurator Fiscal.
Police witnesses Low and Kilpatrick obtained statements from the witnesses and seized the CCTV as a production and label in lieu’s were signed for the stolen goods.
Medical evidence
No details provided.
Interview
No details provided.
Caution and charge/reply
The accused was cautioned and charged with the offences libelled by police witness Kilpatrick in the presence of police witness Low. The accused replied, “I would never do anything like that and I forgot that they were in my bag”.”
9.
When this material became available shortly before the trial in this case the Crown gave notice of an application to have evidence of the warning admitted as bad character evidence, pursuant to CJA 2003. However, Mr Forsyth for the Crown had decided not to pursue any application to have the material admitted in the Crown case, as bad character evidence of propensity to commit such offence. At the close of the prosecution evidence, both counsel sought to clarify with the judge the effect of the warning on the question of the appellant’s character to go before the jury, before the appellant was called to give evidence.
10.
The precise status of the warning in Scottish law was unclear. In discussions between the judge and counsel (a transcript of which we have seen) it seems initially to have been assumed that the warning was likely to have the same status as a caution in English law, requiring as a pre-condition that the suspected person admits the offence. In the course of the exchanges between the judge and counsel, it was made clear that the Crown did not intend to seek to adduce evidence of the warning and the underlying events, unless the appellant were to seek to establish her good character beyond the mere fact of her status as a practising doctor of medicine. Counsel then appearing for the appellant also said to the judge (no doubt on instructions) that the appellant “never received any notice” of the warning. However, the underlying facts of the incident, which we have set out above, did not appear to be disputed.
11.
In an exchange on the same subject the following day, the judge gave his view as to the position with regard to how character should be dealt with in the summing-up. The judge said this:
“JUDGE O’MAHONY: for what it is worth, gentlemen, my reflection on the Scottish problem is that should there be any question of good character and good character direction there would have to be at the same time disclosure of the matter in Scotland, Tesco, however it is done, because on the simple principle that the jury… (sound change)
MR FORSYTH: Yes.
JUDGE O’MAHONEY: If nothing is said about it and there is no claim as to good character then nothing will be said and the jury will treat the defendant as a Doctor, not hearing anything more about her character, but if there is any request for a good character direction it would have to be balanced by disclosure of that matter, whether or not she got the letter informing her about her right to dispense with the fiscal warning. That is my perception at the moment.
MR FORSYTH: I would not disagree with that.
MR BISHOP: Likewise, your Honour.”
As can be seen, both counsel agreed with what the judge proposed. After the judge had said this, Mr Forsyth informed the judge of the result of enquiries that he had made of the Procurator Fiscal in Scotland. He informed the court as follows:
“MR FORSYTH: For what it is worth, your Honour, I managed to speak yesterday afternoon to a senior fiscal deputy, Katie McCall, in Ayshire. It appears that the situation was that police were called to the store, the accounts taken and the response to caution noted. Then she was notified that she would be informed by the Procurator Fiscal’s office of how the matter was to proceed. On that understanding this letter we have seen was sent out. It was not sent recorded delivery. It was sent in the usual mail. The procedure up there is, as it says in the letter there is a deeming provision that if there is no response to the letter within 28 days the warning effectively takes effect. The way it was put to me, which is rather alien to our system, was that the burden effectively shifts to the suspect then to notify the Crown if they dispute what is set out.
JUDGE O’MAHONEY: I am grateful that someone has done the homework required. Unless certain developments occur it is not going to play any part.”
The last remark by the judge was clearly intended to indicate further that the warning would fall out of account unless the appellant made positive assertions of good character.
12.
The result was that there was no evidence placed before the jury as to the appellant’s character, good or bad, and nothing was said about the appellant’s character in the course of the summing-up.
13.
The appellant was represented before us by different counsel (Mr Bains). He argued that the conviction is unsafe because (a) the judge failed to give a reasoned ruling as to the status of the PF warning as potential bad character evidence, in breach of section 110(1) of the 2003 Act, and (b) the appellant was deprived of the benefit of a “good character” direction in the judge’s summing-up to which she would, in the normal course, have been entitled.
14.
Mr Bains submitted that the judge and both counsel at trial were led into taking a false course by an absence of full understanding of the status of the Procurator Fiscal’s warning in Scottish law. Thus, the appellant was unable to mount a case of good character which would otherwise have been open to her and which would have led to favourable directions from the judge. It was submitted in the written grounds that it would have been proper for the defence to apply for an adjournment of the trial, having regard to the novelty of the issue raised by the information that had come to light so late. The grounds of appeal were supported by an opinion of Leading Counsel in Scotland which confirmed that the warning did not constitute a conviction in Scottish law and that, notwithstanding such a warning, the appellant (in proceedings in Scotland) would be entitled to assert her good character in evidence and the prosecution would not be entitled to challenge that evidence on the basis of the warning that had been given to her.
15.
In view of the criticism levelled against trial counsel, the Registrar sought and obtained from the appellant a waiver of privilege and the comments of trial counsel were received. That response informed the court that trial counsel considered that the judge had given his clear view that any attempt by the defence to adduce evidence of good character would lead to details of the Scottish matter being placed before the jury and that any character direction would include reference to the warning given. Counsel took the view that, having regard to the judge’s expressed views on this matter, the continued reference to the appellant as “Doctor”, as the jury knew she was, was itself sufficient evidence of good character which would hardly have been improved by a positive case being advanced by the appellant, which would then run the risk of being countered by the evidence of what had happened in Scotland.
16.
In the circumstances, Mr Bains argued before us that the warning in this case was of no higher status in our law than that of a fixed penalty notice under
s.2 of the Criminal Justice and Police Act 2001
in English law. Such notices do not amount to convictions and do not entail admissions of guilt of any offence. In
Hamer
[2011] 1 Cr App R 3
,
page
23 at 28 Thomas LJ (as he then was), giving the judgment of this court, said that such a notice is entirely irrelevant to the accused’s entitlement to a good character direction. The court held that evidence of the accused having been given such a notice should not have been admitted before the jury as evidence of bad character, as it had been not on the Crown’s application but on the trial judge’s insistence. In the circumstances, however, having regard to the terms in which the trial judge directed the jury as to the accused’s character, it was held that his conviction was not unsafe and his appeal was dismissed.
17.
In the present case, Mr Bains submitted that the warning in the present case was of the same status as the fixed penalty notice considered in the
Hamer
case. The judge’s preliminary indications as to his view of the consequences of a positive case of good character being made by the defence, it is argued, must have deterred such a case being made and prevented the giving of a normal good character direction.
18.
In our judgment, it is perhaps unfortunate that the precise status of the warning by the Procurator Fiscal was not ascertained at an earlier stage and that the position was not clearly understood by the parties and the court at the outset of the trial. In future, when such warnings have to be considered, we would hope that the Crown would supply full information on the subject to the court in the pre-trial processes. However, that said, we did not consider that what occurred in this case rendered the appellant’s conviction unsafe. Whether the giving of the warning entailed an admission of guilt by the appellant or not, it must have been correct that any attempt on the appellant’s behalf to make out a case of positive good character would have risked a successful application by the Crown to cross-examine the appellant upon the admitted background facts of the incident in Scotland, as they were recited in the warning letter. Counsel for the appellant at the time understandably decided not to run that risk, since the jury knew that the appellant was a practising medical practitioner and would have been likely to assume that she was of good standing. The judge had indicated in the exchanges that he did not regard that fact as having meant “putting her character in”: see page 4F-G of the transcript for 7 May 2014.
19.
Therefore, the matter was left alone by both counsel in the course of the defence case. No application was made to the judge at the close of evidence that he should give the jury a conventional “good character” direction. Nor could such an application sensibly have been made. The position was that there was no evidence before the jury as to the appellant’s character at all, for good reason, and, in the light of the way in which the matter had proceeded, it would have been impossible to contend that such a direction should be given. The judge would have been fully entitled to decline to give such a direction as a matter of his discretion, given that both sides had sought to exclude the question of character as a whole from the jury’s consideration.
20.
In the circumstances, we did not consider that the judge erred in proceeding as he did. The question of the appellant’s character was dealt with by mutual accord and the appellant avoided the risk of an application being made by the Crown to have the adverse material admitted in evidence. That point apart, the Crown case against the appellant on the facts of the present case was a strong one, even without the potential deployment of extraneous bad character material. We took the view, therefore, that the conviction is safe and that the appeal, properly arguable as it was and for which we had given leave accordingly, should be dismissed. | ```yaml
citation: '[2016] EWCA Crim 451'
date: '2016-04-26'
judges:
- LORD JUSTICE McCOMBE
- MRS JUSTICE McGOWAN
``` |
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:
200805841 B3
Neutral Citation Number:
[2009] EWCA Crim 472
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 19th February 2009
B e f o r e
:
LORD JUSTICE RIX
MR JUSTICE WALKER
MR JUSTICE CALVERT-SMITH
- - - - - - - - - - - - - - - -
R E G I N A
v
DAVE DEVON SMITH
- - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - -
Mr R Germain
appeared on behalf of the
Appellant
- - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE RIX: On 1st October 2008 at the Crown Court at Inner London the appellant, Dave Devon Smith, pleaded guilty to possession of a prohibited firearm on re-arraignment and on 2nd October 2008, before Mr Recorder Wilmot-Smith QC, was sentenced to two and a half years' imprisonment, with a direction that 172 days spent on remand should count towards the sentence. He now appeals against sentence by leave of the single judge.
2.
The facts of the case are as follows. On 11th April 2008 the appellant attended at Brixton police station to comply with bail conditions. He was then arrested on suspicion of possession of a firearm, to which he replied "I ain't got no gun". He was taken into custody and sets of keys for his address and another room he had rented were taken from him. That room that he had rented was searched and the officers found a locked suitcase in it. The lock on the case was broken by the officers and inside were seven bags, one of which was found to contain a converted blank firing pistol wrapped in a sock.
3.
When interviewed, the appellant said he owed drug money to a man called Kirk, who had told him he would forget the debt if he rented a particular room. The appellant said that Kirk had given him the money for the room and then come round to his usual home address and had given him the locked suitcase and told him that if he opened it he would lose his life. He added that he had then taken the suitcase and some of his belongings round to the room he had rented, but had only slept there one night. He accepted that he knew Kirk and most of his gang had guns.
4.
The appellant was born on 23rd August 1980 and is now 28. He is lightly convicted. He has two convictions for possession of in one case cannabis and in the other case crack cocaine. A psychiatric report dated 21st September 2008 stated that he had a history of significant personal trauma and was known to suffer from a psychotic illness then in remission. He also had a history of multiple substance misuse and dependence. He would benefit from further treatment and follow up by mental health and substance misuse services. His misuse of drugs aggravated his psychotic illness.
5.
On the day of sentence the learned recorder first held a Newton hearing to enquire into that part of the appellant's case that he did not know of the gun within the locked suitcase. In his ruling on the Newton hearing the learned recorder said that the appellant, as he now is, presented as a man of limited intelligence, clearly under the influence of anti-psychotic prescriptions and not able to look after himself, in the sense that he possessed a personality which was not capable of functioning in society with much force of will. The learned recorder accepted the appellant's evidence that he did not know what was in the suitcase, but the learned recorder did not accept that part of his basis of plea and his evidence at the hearing that he did not think that there was a gun in the suitcase at all, that he had no reason to believe that there was a gun at all. That the learned recorder did not accept. The possibilities of what were in the suitcase, the appellant accepted, were papers or forged documents or drugs; at any rate, contraband of some kind. The learned recorder also remarked that his mental condition and personality were such that the conclusion could be drawn that he was "a sitting duck for any preying criminal". The learned recorder then referred to his plea of guilty, which he accepted as effectively a plea at the earliest opportunity.
6.
The learned recorder concluded his ruling, in terms which were essentially part of his sentencing remarks, by saying that although the appellant must have known that there was a risk of firearms, he did not know -- and the learned recorder must have meant "did not know for certain" -- that there was a firearm within the suitcase and there were other probabilities, including drugs. In those circumstances, and given the short time of the suitcase in his possession and his mental condition, the learned recorder concluded that there were exceptional circumstances which entitled him to say that he need not impose upon the appellant the otherwise mandatory minimum sentence of five years' imprisonment under
section 51A of the Firearms Act 1968
.
7.
In his later sentencing remarks the learned recorder repeated his view that there were exceptional circumstances justifying him in disapplying the five year mandatory sentence and otherwise repeated the views that he had expressed in his Newton ruling. He observed that the circumstances in which the appellant had taken possession of the suitcase with the gun in it were not without blame, and he also observed that the courts must be careful to ensure that there is no reward in relation to the possession of firearms of those who willfully keep themselves in the dark by not opening a sealed box which contains a gun within it. He referred to the previous convictions, describing them as trivial, to the appellant's mental illness, to the short period of time that the gun was in his possession and to the circumstances in which he came to possess it, which he described as those of "acute duress". In the end he determined a sentence of 30 months, two and a half years' imprisonment.
8.
On this appeal Mr Germain submits that in all the circumstances this was a manifestly excessive sentence and that the learned recorder gave insufficient weight to his finding that the appellant did not know about the gun, also his early plea, his mental illness and malleable personality. Mr Germain submitted that the learned recorder's reference in his sentencing remarks to "those who willfully keep themselves in the dark" were not applicable to the present appellant given both the learned recorder's Newton findings and the presence of the duress. Mr Germain also observed that the learned recorder did not specifically advert in his sentencing remarks to the early plea.
9.
On this appeal we are not concerned with the decision which the learned recorder first had to make, which was whether there were exceptional circumstances permitting him to come below the otherwise mandatory term, even on a plea of guilty, of five years: see
R v Jordan
[2005] 2 Cr App R (S) 44. We consider that the learned recorder's failure to mention again the early plea and his sentencing remarks when he had a little earlier emphasised that he was going to give to the appellant full credit for his guilty plea, which he considered had effectively been given at the first opportunity, does not undermine his sentence. Nor do we think his reference to "those who willfully keep themselves in the dark" undermines his sentence. We regard that as either a general observation relating to those who keep containers for other people which they do not look into, or, if they refer specifically to the appellant, what the learned recorder had in mind was that, as he had himself just said, the appellant was not without blame and did have reason to believe that there was the risk of a gun in the box, findings which the learned recorder must have had in mind in the light of his observations in the Newton ruling.
10.
The closest case which Mr Germain puts before us in circumstances where a judge comes below the five year minimum sentence is the case of
R v Edwards
[2007] 1 Cr App R (S) 111
. In that case the mother of three young children appealed successfully against a five year minimum sentence and had a sentence of two years imposed by this court on the basis of a series of factors which are set out in paragraph 20 of the judgment of Mackay J. In that case the appellant did know of the gun but the gun was not in working order. She too was under duress and there were other strong factors of mitigation in her favour. There are points about the facts in that case and in this case which distinguish the cases both ways, upwards and downwards, but nevertheless we agree with Mr Germain's submission that this is at any rate the closest case that can be put forward.
11.
Nevertheless, we consider that it cannot be said that the sentence in this case of two and a half years is manifestly excessive. It does not differ materially from the sentence of two years in the case of
Edwards
. In the present case, although the appellant had said that he did not know for certain that there was a gun in the locked case, nevertheless he had reason to believe, as the learned recorder found, that there was a risk of the gun there, and he knew that he was dealing with a gang of drug dealers who used guns. The learned recorder, having held a Newton hearing, was in a good position to adjust his sentence carefully by reference to the particular degree of guilty knowledge or blame to be attached to this appellant. He took careful regard of all his circumstances, including his medical condition, his compliant personality and the duress to which he was subject. In all those circumstances we would not think it right to interfere, in a context where the statutory provisions emphasise the need for deterrent sentences, with the ultimate decision of the learned recorder. For those reasons, this appeal is dismissed. | ```yaml
citation: '[2009] EWCA Crim 472'
date: '2009-02-19'
judges:
- LORD JUSTICE RIX
- MR JUSTICE WALKER
- 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}
======
| Neutral Citation Number:
[2009] EWCA Crim 1003
No.
2009/00987/A6
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
Thursday 30 April 2009
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Judge
)
MR JUSTICE LLOYD JONES
and
MR JUSTICE WYN WILLIAMS
- - - - - - - - - - - - - - - -
ATTORNEY GENERAL'S REFERENCE Nos. 17 of 2009
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
R E G I N A
- v -
PHILLIPA CURTIS
- - - - - - - - - - - - - - - -
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4A
Telephone No: 020 404 1400; Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - -
Mr J Laidlaw QC
appeared on behalf of the Attorney General
Mr R Latham QC
appeared on behalf of the Offender Phillipa Curtis
- - - - - - - - - - - - - - - -
J U D G M E N T
Thursday 30 April 2009
THE LORD CHIEF JUSTICE:
1. This is an application by Her Majesty's Solicitor General under
section 36 of the Criminal Justice Act 1988
for leave to refer to this court for review a sentence which she considers to be unduly lenient. We grant leave.
2. The offender is Phillipa Curtis. She was born on 1 May 1987. She is virtually 22 years old. She is a young woman of whom very many positive things are said.
3. On 19 December 2008, in the Crown Court at Oxford, before His Honour Judge Hall and a jury, the offender was convicted of causing death by dangerous driving. On 2 February 2009 she was sentenced to 21 months' imprisonment.
4. The fatal crash occurred on the evening of 20 November 2007, when the offender (then aged 20) was driving a Peugeot 106 from Suffolk towards Oxford. Her journey took her along the A11, the M25 and the M40. At about 11pm, as she drove at about 70mph along the A40 on its approach to Oxford, she was involved in a fatal collision.
5. The deceased, 24 year old Victoria McBryde, had been driving her car along the same road ahead of the offender when she realised that she had developed a puncture. She contacted a breakdown company, but she did not have the appropriate insurance cover to receive assistance. At 22.58 she sent a text to a friend in which she stated that she was somewhere near Oxford with a burst tyre and she did not know what to do. At the time of the collision the deceased was sitting in her car, which was stationary in the nearside lane of the main road. Her car was visible for 260 metres. The offender simply did not see the car. She drove straight into the rear of it. The deceased suffered very serious injuries and was killed.
6. We take the facts in more detail. The offender was driving to Oxford, having finished work. During the course of the journey, from about 21.30 onwards, she made or received 20 SMS or text messages from her mobile phone. She did not stop to make or receive any of those communications. She did not have any form of hands-free device. From the exchange of messages between the offender and those with whom she was communicating, it is clear that she had been both reading and typing text messages as she drove along the A11, the M25 and the M40.
7. As she approached her destination in Oxford, at about 22.58 (which is almost the precise moment when the deceased sent the text to her friend confirming that she had a burst tyre and did not know what to do), the offender made a short, unsuccessful attempt to speak to her boyfriend. She then placed another brief call to a taxi company to try to organise an onward journey from the place where she intended to park her car at the Oxford Park and Ride. Those voice calls were finished by 22:58:38. Forty seconds later, at 22:59:18, she received a text message. That message was unread and unopened when the phone was examined at a later stage during the course of the police inquiry. However, the first call to the police from a witness to the accident was timed at 23:00:06. The witness gave evidence that he made his telephone call 15 seconds after the collision had occurred.
8. An examination of the deceased's car after the collision suggested that it was stationary with its handbrake applied, and that at the time of impact the rear side lights were illuminated and that the front side lights may also have been illuminated. There was a finding which suggested that the hazard warning lights were on, but it was not possible for the collision investigator to be sure about that. Although the hazard lights switch was found to be in the "on" position, the possibility that the switch had been knocked during the impact could not be excluded.
9. The road is a dual carriageway, unlit, with a slightly raised grass verge to the nearside. It is subject to the national 70mph speed limit. At the point of collision the road is a gentle sweeping left-hand bend on a slight uphill gradient. Experiments have indicated that the limit of visibility from the rear of the stationary vehicle back along the road was about 262 metres, increasing to 275 metres if the hazard warning lights had been on.
10. It was clear from an examination of the scene that the deceased's car had stopped on the nearside lane of the carriageway, not far from the kerb, and that the rear offside had been struck by the front near-side of the offender's car with approximately a quarter vehicle overlap, which suggested that the offender's car was positioned centrally in the inside lane at the point of impact. It was not possible to calculate a reliable speed for the offender's vehicle, but it appeared to be about 70mph, which accorded with what the offender had described in her interview. Of importance, there was no evidence which suggested any emergency braking. The brake lights were not illuminated at the time of impact. The offender never suggested that she braked before the collision. In every account she gave of the incident she asserted that she had not seen the stationary car.
11. The force of the impact between the two vehicles propelled the stationary car across the nearside verge, where it struck a substantial concrete block at the end of the nearside barrier. The offender's vehicle was deflected towards its offside. It rotated anti-clockwise towards the central crash barrier and came to rest in lane 2, facing the wrong way.
12. The witness who saw the accident and saw "sparks and a car going sideways" was in the fast lane. He braked sharply and contacted the emergency services.
13. Another driver of a heavy goods vehicle saw a small car (the offender's car) positioned side-on across the fast lane. It displayed no lights. He also saw the deceased's car on the nearside grass verge. He, too, brought his vehicle to a halt. Both drivers made their way to the scene to give what assistance they could.
14. A white van which came onto the scene crashed into the offender's unlit car and drove it forward, where it collided with the rear of the heavy goods vehicle. The front of the car became wedged under the trailer.
15. It is a remarkable feature of the case that the offender, who was in the car at the time of the second impact, did not suffer any significant injury in any of the impacts in which her car was involved.
16. The offender was treated at the scene by paramedics. In due course she was arrested for causing death by dangerous driving and interviewed in the presence of her solicitor. She described her working arrangements and the route she had taken. She recalled turning off the motorway on to the A40, which was "quite a dark road". She said, "Basically, I just remember a big like sudden bang and my windscreen was shattered and my car was spinning. I didn't see anything ahead of me or any lights". She said that on a number of different occasions. She said that she was planning to call her boyfriend when she arrived at the Park and Ride, and that she would then travel by bus or by taxi if she was too late for the bus.
17. The offender was asked about her mobile phone. She denied that she had used it just prior to the impact. She said that it had possibly been on the passenger seat. She reiterated that she could see only to the limit of her headlights and then just black road with no lights.
18. She was released on bail. She was re-interviewed on 14 March 2008. She was told that the police believed that the rear lights of the deceased's vehicle had been on at the time of the collision. She could not explain why she had failed to see those lights. She was specifically challenged about the use of her mobile phone. She admitted that she did not have a hands-free kit or a Bluetooth accessory. She told the police that she had not been using the phone at the time of the accident, but had used it to call a taxi company and to attempt to call her boyfriend. She admitted that she might have received text messages during the journey and that she would possibly have looked at them, although she said that she could not recall the details.
19. The interview in relation to the use of the mobile phone and the communications that took place ended with the offender recalling that she had made a call to the taxi company when she had just come off the M40 on to the unlit section of the dual carriageway, but she denied that she was using the phone when the collision had occurred. She insisted that the call to the taxi company seemed to her to have taken place quite a long time before the collision. She said that she had not previously mentioned the calls because the phone was not in use at the time of the accident.
20. It is clear that during the earlier part of her journey the offender had sent eight text messages and received 13 text messages, which were marked as "read". Certainly during the earlier part of the journey the offender had read incoming messages before she composed her responses. The use of the mobile phone and the process of texting is a feature of the case to which we shall have to return.
21. The pre-sentence report described the genuine remorse that the offender was suffering as a result of her involvement in the accident. The author recorded that in discussing the death of the deceased the offender
"became visibly upset and demonstrated significant remorse for her actions and a high level of victim empathy. She describes feeling that she has no right to talk about the deceased. When asked how she feels about it she said, '"Awful" doesn't do it justice. It's something that will be with me for ever'."
It was assessed that she displayed a high level of victim empathy. She accepted that she was fully culpable for the offence and she expressed remorse for those affected by her actions.
22. It is plain from both the pre-sentence report and the way in which the case was handled at the Crown Court that this is genuine remorse, not self-pity. It appears to represent genuine insight into the awful consequences of the offender's actions.
23. The judge was provided with a substantial bundle of letters which form testimonials to the offender. However, it is clear that the authors of those testimonials are not seeing this simply through the eyes of the offender; they have insight into the catastrophic loss suffered by the deceased's family. The letters, which speak well of the offender, are testament to the positive good character to which we have referred.
24. When the judge came to the sentencing exercise, having listened to the mitigation, one of the important issues which arose was whether the Crown regarded the case as one which for the purposes of sentence should be treated as an offence which fell within level 2 or level 3 of the Sentencing Guidelines Council Definitive Guideline: Causing Death by Driving. It is difficult for us to be sure about precisely how the case was approached, although counsel for the Crown used the word "significant" (which indicates level 3). However, whichever way it developed, at the sentencing stage the judge was not expressly invited by the Crown to regard the case as one which fell within level 2.
25. In his sentencing remarks the judge did not accept that the mobile phone had no bearing on the facts and on the fatal collision. He said that driving was a skill that required 100 per cent concentration and that to use a phone, whether to answer, talk into, or even more so to construct a text message, was folly.
26. The Solicitor General focuses attention on the use of the mobile phone to speak, to receive, to write and to send text messages over a period of time while driving on A roads and motorways when travelling at speed. That submission is well made. On the other hand, there is a separate question which arises from the fact that at the time of the collision the offender was not using actually her phone, nor had she responded to a text message immediately before the collision.
27. The Solicitor General points to the following mitigating features. The offender is a young woman of positive good character. She has insight into the terrible consequences of her driving. There is evidence of genuine remorse. We also know now that, having started to serve her sentence, she was given her release date before she was informed of this present application. That is not double jeopardy as such, but it is a factor which we must should into account.
28. We have examined the facts of this case with great care. The consequences of this accident are devastating. However, even now drivers of all sorts of vehicles, lorries as well as cars, sometimes driving at speed, are chattering away on their mobile phones, texting and receiving texts. Inevitably this means that they are distracted to some degree from giving their driving the full attention it needs. They may continue to be distracted by the fact that they have just been using the phone or texting. This reduced attention is the consequence of a deliberate choice by drivers. No one makes them; no one startles them; no one forces them into using their phones or texting while they are at the wheel. They choose to do it. They are ignoring the law which prohibits such conduct -- a law which was enacted to improve safety on the roads. The message still has not been heeded that it is always dangerous to be texting or using a hand held mobile phone while driving and that there is
never
any excuse for doing so. If and when something urgent needs attention so badly that it requires the use of the phone or the sending of a text, it is then urgent enough to stop the vehicle, park, or pull into a motorway service station to make or receive the urgent communication. The only disadvantage is that the driver will arrive at his destination a few minutes later. The risk of ignoring this simple step is stark: the driver may never arrive at his destination. Worse, some innocent user of the road may never arrive at his/her destination, followed by the life-long grief and pain that will be caused to those who mourn.
29. The consequence of a deliberate disregard of the law introduced to improve safety on the roads means that a custodial sentence is inevitable. The only question is its length. That, as ever, is fact-specific; it depends on the detailed circumstances of the incident and all the other matters, whether mitigating or aggravating, which the court should take into account. Perhaps the most significant fact to be decided in this particular context is whether the phoning or texting happened at the moment of, or in the immediate few seconds before, impact, or whether the earlier phoning or texting may have played some part in the driver's lack of proper attention to the road ahead. That is the message to be drawn from this case.
30. The deceased's car was in sight for 260 metres. The offender did not see it. At the time she was not using her mobile phone; nor was she texting. She chose not to respond to the communication that came through. It cannot be said that the phoning or texting was happening at the moment of impact or in the few seconds immediately before it. That said, we cannot avoid the conclusion that the offender would have been much less likely to have been distracted if she had never touched her mobile phone or texted at any time.
32. Having reflected on all of the facts in this case, we have concluded that this was a lenient sentence; arguably, it was unduly so. However, we have also stood back and reflected on all of the facts as they appear before us now as we review whether or not there should be an order for an increased sentence. In the result, we shall not order an increase in this sentence. | ```yaml
citation: '[2009] EWCA Crim 1003'
date: '2009-04-30'
judges:
- MR JUSTICE LLOYD JONES
- MR JUSTICE WYN WILLIAMS
- 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:
2016/03297/B1
Neutral Citation Number:
[2018] EWCA Crim 1009
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT WOOD GREEN
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
04/05/2018
Before:
LORD JUSTICE DAVIS
MR JUSTICE KING
and
MRS JUSTICE CHEEMA-GRUBB DBE
- - - - - - - - - - - - - - - - - - - - -
Between:
PAMELA DARROUX
Appellant
- and -
THE CROWN
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Laurie-Anne Power
for the
Appellant
Christiaan Moll
for the
Respondent
Hearing date: 13 April 2018
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Davis:
Introduction
1.
In Blackstone’s Criminal Practice (18
th
ed.) at paragraph B4.48 the following is stated: “Where an alleged theft involves a thing in action such as the credit balance in V’s bank account, or the right to payment on a cheque, it can sometimes be particularly difficult to identify the crucial act of appropriation, even where it seems clear that D has dishonestly enriched himself at V’s expense. In most such cases, the prosecution would be well advised to use charges other than theft…”
2.
These are wise words. But unfortunately this was not a course followed in this case. In circumstances where the charges could readily and appropriately have been framed by reference to
s. 1 of the Fraud Act 2006
(this case being virtually a paradigm example of fraud by false representation within the ambit of s. 2 of that Act) the charges were all framed by reference to
s. 1 of the Theft Act 1968
.
3.
The consequence has been, in the light of the appellant’s conviction, an appeal to this court of a kind which much engaged the courts (and academic commentators) in years gone by: a consequence which the
Fraud Act 2006
had in truth been designed to counter.
4.
The potential legal difficulty arising had not been identified below, either by trial counsel or trial judge. In fact it was only first identified by the Criminal Appeal Office, the appellant having lodged grounds of appeal of her own composition raising entirely unrelated points (which are not now pursued). In granting leave - “without, I confess, the slightest degree of enthusiasm”, as he put it – the single judge observed that it was no answer to say that no one took the point below. That, in the circumstances of this case, is correct. If the case and evidence presented at trial could not in law sustain counts of theft, then convictions on such counts cannot be regarded as safe.
5.
The appellant, Pamela Darroux, was represented before us by Ms Power. The respondent Crown was represented before us by Mr Moll. Ms Power had not appeared at the trial below. Mr Moll had.
Background Facts
6.
The background facts, in summary, are these.
7.
The appellant was from 2 November 2002 until 1 April 2014 employed as a manager by a charity known as the Sunridge Court Housing Association. She was a trusted and senior employee, managing the residential care home for elderly people operated by the Housing Association in Golders Green. She had responsibility for the general running of the home. Her responsibilities extended to the pay-roll of all employed staff, including herself.
8.
The appellant was contracted to work from Monday to Friday, between 9 am and 5 pm. It was an agreed term that when she did overtime, or covered for other members of staff, she was entitled to claim additional payment. She was also entitled to claim payment in lieu of holiday not taken.
9.
So far as the staff were concerned it was the responsibility of the appellant, among other things, to check their rotas, claims for overtime and on-call work, holiday entitlements and so on. However, in her own case the arrangement initially was that such claims by her should be approved by the chair or committee of the Board of Trustees of the Housing Association.
10.
It seems that the practice of the appellant throughout the period of her employment was to fill in the relevant forms by hand. There were standard Annual Holiday Requests forms and standard forms for overtime and on-call claims.
11.
Once the relevant claims were approved the forms would be sent on a monthly basis by the appellant, apparently by fax, to a company called PCS Limited, whose services the Housing Association had retained and who, in effect, provided pay-roll services. Perhaps because of the course which the proceedings took at the trial below, the evidence relating to that aspect was limited. At all events, it appears that on receipt of the relevant forms PCS would make the necessary computations for each employee; arrange for the appropriate deductions, with a view to accounting to the Revenue, in respect of PAYE and National Insurance contributions; prepare and send to each employee, including the appellant, the relevant monthly Pay Advice (which would include recording payment for hours worked in excess of the basic contracted amount); and arrange for the payment by bank transfer to each such employee accordingly.
12.
So far as this last aspect was concerned, the evidence again was limited. As we gather, PCS had some form of mandate from the Housing Association, permitting it in effect to operate the relevant bank account of the Housing Association maintained at Barclays Bank. It is to be assumed that PCS did so by electronic instruction. The sums in question would then be paid out of the Housing Association’s account via BACS and the corresponding amount would then appear as a credit in each individual employee’s designated bank account.
13.
Until 2011 the chairman of the Board of Trustees was Brian Levy. The appellant would place her own pay-roll details before Mr Levy for his approval. He was to say in evidence that he was always satisfied with the overtime claims which she put in, as also with any holiday payment claims: such queries as he occasionally raised were answered to his satisfaction. He also said that he considered her to work hard and conscientiously. As put by the trial judge in the summing-up, Mr Levy “didn’t say a word against Mrs Darroux”.
14.
In 2011 Linda Stone took over as chair of the Board of Trustees. Ms Stone, as she had made clear before she agreed to take on the role of chair, did not involve herself in the day-to-day financial details of the Housing Association; and she did not follow the system of reviewing the appellant’s monthly pay claims which had been adopted by Mr Levy. Accordingly she did not herself check or approve the monthly pay and overtime sheets; although she did review (or was intended to review) the Annual Holiday Request forms and did counter-sign at least some of them – how many, became an issue at trial.
15.
In 2013 there was an outbreak of Legionella at the home. It is not now said that this was by reason of any neglect on the part of the appellant. But at all events a report from the Care Quality Commission resulted. This report highlighted various administrative shortcomings within the Housing Association’s operations. The appellant was thereafter given notice of dismissal. Her internal appeal was unsuccessful and her employment was terminated on 1 April 2014. Thereafter she made a claim at the Employment Tribunal for unfair dismissal. Her claim also included an allegation of racial discrimination. An offer of settlement in the sum of £5,000 was rejected by her. Thereafter, the employment proceedings appear to have been overtaken by what became criminal proceedings.
16.
By reason of the shortcomings noted as a result of the report of the Care Quality Commission Ms Stone requested Rachael Barkoff, the Executive Director of the Housing Association, to undertake an audit of the financial position, including payroll payments. The upshot of this was to result in a claim by the Housing Association that the appellant had defrauded the charity by submitting falsely inflated overtime/on call claims and claims in lieu of holiday entitlement. In due course the total amount said to be involved was quantified at £49,465 for the period between January 2011 and February 2014.
17.
On 15 July 2014 the appellant was arrested and interviewed. She was legally represented. She made no comment to all questions asked. Her case at trial was that there had been no dishonest submission of claims and that she had been entitled to all of the payments made to her. It was, among other things, also suggested that the allegations of the Housing Association had been prompted by the claim made in the Employment Tribunal by the appellant.
18.
The appellant was of previous good character.
The Indictment and Course of Proceedings
19.
In the event the Indictment contained nine counts of theft. The counts covered various monthly periods between 1 January 2011 and 30 April 2014.
20.
Count 1 was drafted in these terms:
“
Statement of Offence
THEFT, contrary to
s. 1 (1) of the Theft Act 1968
Particulars of Offence
PAMELA DARROUX between 1
st
day of January 2011 and 30
th
day January 2011 stole monies belonging to Sunridge Court Housing Association.”
The other counts were similarly drafted.
21.
This straightaway should have set alarm bells ringing. No one had ever suggested that the appellant had stolen cash in a till or in a safe. The “monies” in question related to the Housing Association’s (in credit) bank account. While in lay terms it is commonplace to talk of money in the bank, it is in legal terms elementary that a bank account constitutes a chose in action, representing the debt due from the bank to the account-holder. So on any view the counts were incorrectly particularised.
22.
We asked Mr Moll why the counts had been framed in theft rather than in fraud under the
Fraud Act 2006
. He said that the matter had been considered at the time but that it had been concluded that theft was the “simpler” and “more appropriate” charge. He said that the matter both would and should have been charged as fraud had there been an actual deception of a trustee in approving the monthly forms; but, he said, as the allegations post-dated the supervision of Mr Levy that was not the position here. Hence theft was the appropriate charge.
23.
We find that explanation to be as puzzling as it is unsatisfactory. It was pointed out to Mr Moll in argument that
s. 2 of the Fraud Act 2006
does not require that there be actual operative deception. The section is principally directed at conduct (with the necessary intent), not at the result actually achieved. Mr Moll, when this rather obvious point was put to him, necessarily had to accept that. He maintained, however, that even if the charges could properly have been framed in fraud – as he now accepted – still they could also properly be framed in theft.
24.
Be that as it may, it is in any event hard to understand how it could be assessed that no operative deception (on the Crown’s own case) had occurred. It may be that no trustee had been induced specifically to approve these monthly overtime claims. But the appellant had authority to, and did, submit these claim forms to PCS for processing; and it was an implicit representation to PCS (as the Housing Association’s agents) that such claims were genuine and made in good faith. They would not have been processed or have resulted in payment out otherwise. Yet further, at least some of the alleged false holiday entitlement claims had in fact been put before Ms Stone for her signature in any event.
25.
Nevertheless the case proceeded to trial in the Crown Court at Wood Green on the basis of the indictment as so drafted. Counsel then appearing for the defence raised no challenge to the form of the indictment.
26.
At trial there was a further development. On re-reading her witness statement at court Ms Stone formed the view that some of her purported signatures on some of the Annual Holiday Request forms were not in fact hers. The trial thereafter, with leave of the judge, proceeded on the footing that those particular signatures had, according to the prosecution, been forged by the appellant. That added a further complication. However, no ground of appeal is now pursued on that point.
27.
Much of the trial was devoted to a painstaking analysis of the various forms and to a correlation of the entries made by the appellant with the hours she had actually worked or could have worked. Various individuals on behalf of the Housing Association were to say that they had no role in, or supervision of, the completion of the forms. Ms Barkoff gave lengthy evidence on the details of the forms and payments. The appellant herself gave evidence and was cross-examined.
28.
It thus seems that virtually the whole trial was devoted to the issues of whether the appellant had been entitled to these overtime payments and payments in lieu of holiday and whether there had been any dishonesty on her part.
29.
In such circumstances the trial judge, understandably enough, dealt with the legal ingredients of the offence of theft shortly in his summing-up. Having set out the statutory definition, he then said this to the jury:
“As I say, you probably don’t need me to tell you this, but the issue in this case was not whether the property was appropriated, because Mrs Darroux did get the money that’s been complained about in each of those charges, or at least most of it… and the money, the prosecution say, belonged to Sunridge Court and they say that… [she was] keeping it permanently…”
30.
After a very lengthy retirement, the jury on 15 June 2016 convicted on six counts on the indictment. They acquitted on one other count. The prosecution offered no evidence on two other counts. On those counts on which the jury convicted they had, on the invitation of the judge, returned special verdicts setting out the amounts they had found to be dishonestly taken (these in fact being rather less than alleged by the prosecution).
31.
In due course the appellant was sentenced to 16 months imprisonment.
The Statutory Provisions
32.
As is all too familiar,
s. 1 (1) of the Theft Act 1968
provides as follows:
“Basic definition of theft.
(1)
A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.”
33.
“Appropriation” is dealt with in s. 3. That provides as follows:
“(1) Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.
(2)
Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property.”
Section 2
deals with dishonesty. Section 4 includes a wide definition of “property”: this explicitly extends to all property, real or personal, including things in action. Section 5 explains the circumstances where property is regarded as “belonging to another”.
34.
For completeness, we also set out the relevant parts of the provisions of s. 1 and
s. 2 of the Fraud Act 2006
:
“S. 1 Fraud
(1) A person is guilty of fraud if he is in breach of any of the sections listed in subsection (2) (which provide for different ways of committing the offence).
(2) The sections are—
(a)
section 2
(fraud by false representation),
(b) section 3 (fraud by failing to disclose information), and
(c) section 4 (fraud by abuse of position).
. . . .
S. 2 Fraud by false representation
(1) A person is in breach of this section if he—
(a) dishonestly makes a false representation, and
(b) intends, by making the representation—
(i) to make a gain for himself or another, or
(ii) to cause loss to another or to expose another to a risk of loss.
(2) A representation is false if—
(a) it is untrue or misleading, and
(b) the person making it knows that it is, or might be, untrue or misleading.
(3) “Representation” means any representation as to fact or law, including a representation as to the state of mind of—
(a) the person making the representation, or
(b) any other person.
(4) A representation may be express or implied.
(5) For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).”
The arguments in outline
35.
It is the argument of Ms Power that, on the facts and circumstances of this case, counts of theft were unsustainable. She necessarily accepts that, by their verdicts, the jury had found the appellant to be dishonest in respect of the counts on which she was convicted. But here, she submits, there were no acts constituting the appropriation of property belonging to another. She accepts - indeed avers - that the facts alleged would bring this case within the ambit of
s. 2 of the Fraud Act 2006
; but not, she says, within the ambit of
s. 1 (1) of the Theft Act 1968
.
36.
Mr Moll, as we have said, conceded that matters could have been charged as fraud under the
Fraud Act 2006
. But he says that the operative cause of the payments out of the Housing Association’s bank account, on the instructions of PCS, was the prior submission by the appellant to PCS of the monthly forms. Without those there could and would have been no payment out. He says that, even though not a signatory to the account, the appellant de facto had control over it for these purposes: and thus that in submitting the monthly forms she was to be taken as having assumed rights of an owner over the bank account.
Discussion
37.
In the written arguments there was some debate as to whether what had been allegedly appropriated constituted “property belonging to another”. This was a red herring. By receiving the monthly payments into her own bank account the appellant had not (pro tanto) stolen such sums from the Housing Association. This is because the balance in the Housing Association’s account represented a chose in action constituted by the debt owed by the bank to the account holder. But the sum credited to the appellant’s account constituted a
different
chose in action: viz. the debt owed by her bank to her. Thus there could have been no appropriation of “property belonging to another.” That is the effect of the decision of the House of Lords in
Preddy
[1996] AC 815
(a decision made by reference to s. 15 of the, unamended,
Theft Act 1968)
. But that simply does not correspond to the case now advanced by the prosecution on this appeal. The principal potential relevance of
Preddy
for present purposes is that it illustrates a preparedness to adopt a strict approach to the language which Parliament had used in the 1968 Act.
38.
The real issue here, as counsel before us rightly accepted, thus was whether, in the circumstances of this case, there was an “appropriation”. As will be gathered, the summing-up had not left that as an issue to the jury.
39.
It was possible to discern in some aspects of Mr Moll’s arguments before us a tendency to exasperation that such technical points, as he would style them, have – whilst not raised below – been so vigorously deployed on appeal. One of course can accept, on the jury’s verdicts, that mens rea cannot now be disputed. The jury have concluded that the appellant was dishonest. But the appellant cannot be convicted of theft simply by reference to her dishonest state of mind. The statute also requires there to be an appropriation, with the necessary intent, of property belonging to another as the actus reus; which must be established by the prosecution.
40.
It has been authoritatively decided that any assumption of the rights of an owner can be equated with the assumption of any rights of an owner. It further is established that “appropriating” is not to be equated with “obtaining” for the purposes of the statute.
41.
As we see it, it is plain that a chose in action, representing the credit balance in a bank account, is capable of being stolen. That is consistent with the wide definition of “property” contained in s. 3. Thus if, for example, a company director who is signatory to a company’s bank account dishonestly procures payments out of that account to himself by signing cheques payable to himself he has committed theft. He has committed theft because he has assumed rights of an owner in procuring such payments to himself out of an account over which he has control: thereby reducing its credit balance.
42.
So much, indeed, was decided in the case of
Kohn
[1979] 69 Cr App. R 395: a decision expressly affirmed in the addendum to
Graham
[1997] 1 Cr. App. R 302 at p. 334, where Lord Bingham also said this:
“We wish to make it clear that nothing we said was intended to cast doubt on the principle that the theft of a chose in action may be committed when a chose in action belonging to another is destroyed by the defendant’s act of appropriation as defined by section 3 (1) of the Act.”
43.
The same conclusion was reached in
Hilton
[1997] 2 Cr. App. R 445. That was a case where an individual having authorised control over a charity’s bank account dishonestly procured, once by way of signing and presenting a cheque and twice by written instructions given directly to the bank in question, payments out to other accounts in order to discharge his own personal debts.
44.
Those are cases where the defendant in question had authorised control over the bank account in question. But in the present case the appellant had no such control in respect of the Housing Association’s bank account. She was not a signatory on it. She was not authorised or empowered to give instructions to the bank to make payments out of that account. Had she done so the bank would have had no authority to make such payments out and would have been required to refuse to give effect to any such instructions, if so given by the appellant.
45.
Does this make a difference from cases such as
Kohn
and
Hilton
? Ms Power says that it makes all the difference. Mr Moll says that it does not. At all events, the present scenario illustrates the potential distinction between (a) a defendant’s own direct act in respect of the victim’s property, where the defendant has dishonestly obtained the victim’s consent and (b) a defendant’s act causing the victim himself to transfer his property by reason of his consent having been dishonestly so obtained. As noted in Smith & Hogan’s Criminal Law (14
th
ed.) at page 905 this distinction can sometimes seem to be, in effect, very refined: but there nevertheless is such a distinction.
46.
In this context, it may also be observed that, in contrast with the narrow approach to the interpretation of s. 15 of the statute as illustrated by
Preddy
, a broad approach has been taken in other cases relating to appropriation.
47.
Thus in
Gomez
[1993] AC 442, a case involving physical goods, it was held by the House of Lords that an act expressly or impliedly authorised by the owner of property, or consented to by him, could amount to an appropriation of property within the ambit of s. 1 (1), where the authority or consent had been obtained by deception. In
Hinks
[2001] 2 AC 241
, it was held that “appropriation”, as used in the 1968 Act, was in effect a neutral word. It was further confirmed, endorsing
Gomez
, that the transfer of title in property by an owner was capable of amounting to an appropriation if dishonestly procured by a defendant. Thus the interesting outcome is that an act which can give rise to a valid (even if voidable) transfer of property under the civil law can also ground liability under the criminal law of theft of property. Although Mr Moll did not cite or refer to these cases in his argument, he in effect would doubtless seek to adopt the broad approach there taken.
48.
But that still leaves the question of whether there was, on the facts of this particular case, an “appropriation” by the appellant.
49.
Yet further authority on this issue was placed before us. Ms Power, in the course of her excellent arguments, referred to
Naviede
[1997] Crim LR 662 and to the commentary of Professor Sir John Smith on that decision. In that case (which was primarily a case on s. 15 of the 1968 Act) the Court of Appeal among other things had to consider whether an alternative verdict of theft could be substituted. The court decided that it could not be. As shortly stated by Hutchison LJ, giving the judgment of the court:
“We are not satisfied that a misrepresentation which persuades the account holder to direct payment out of his account is an assumption of the rights of the account holder as owner such as to amount to an appropriation of his rights within s. 3 (1) of the 1968 Act.”
50.
Ms Power submitted that that governs the present case. Here the dishonest misrepresentation of the appellant in submitting false monthly forms had persuaded the Housing Association (by its innocent agents PCS) to direct payment out of its bank account to the appellant. But that was not an assumption of rights over the bank account as owner so as to constitute an appropriation.
51.
She further relied on the decision of another constitution of this court in the case of
Briggs
[2004] 1 Cr. App. R 34
.
52.
In that case, the defendant dishonestly deceived the victims into signing an authorisation to a conveyancing firm to pay part of the credit balance, in the sum of £49,500 derived from the sale of their home, to a firm of solicitors acting in the purchase of what was intended to be a replacement home. The defendant in fact procured, by design, that the new home be placed in the names of herself and her father. She was charged with, among other things, theft so far as the transfer of the £49,500 was concerned.
53.
The court distinguished
Hilton
. It adopted the statement of Hutchison LJ in
Naviede
and approved the commentary thereon (and on another similar case) by Professor Sir John Smith. The court stated (at paragraph 12) in a judgment delivered by Silber J:
“In other words, we consider that where a victim causes a payment to be made in reliance on deceptive conduct on the part of the defendant there is no “appropriation” by the defendant.”
54.
Having so concluded, the court went on to say this (at paragraph 13):
“We are fortified in coming to that view by three further factors. First, no case has been cited to us where it has been held that an "appropriation" occurs where the relevant act is committed by the victim albeit as a result of deception. Second, if Mr. Barry was correct, there would be little need for many deception offences as many acts of deceptive conduct would be covered by theft but it is noteworthy that the
Theft Act 1968
(as amended) contains deception offences to deal with the case where a defendant by deception induces a person to take a step which leads to the wrongdoing of gaining property by deception (section 15) or obtaining a money transfer by deception (section 15A) or obtaining a pecuniary advantage (section 16). Third, we have already referred to the explanation of the word "appropriation" in
section 3(1) of the Theft Act 1968
and it is a word which connotes a physical act rather than a more remote action triggering the payment which gives rise to the charge. The Oxford English Dictionary defines "appropriation" as "to take possession for one's own, to take to oneself". It is not easy to see why an act of deceiving an owner to do something would fall within the meaning of “appropriation”
.
”
55.
We have to say that we have, with respect, considerable reservations as to the correctness of aspects of this further reasoning as set out in paragraph 13. As to the first factor, no reference was made to - and presumably there had been no citation of – the cases of
Gomez
or
Hinks
or
Roy Williams
[2001] 1 Cr. App. R 362 (which we discuss further below). As to the second factor, it is precisely the consequence of cases such as
Gomez
and
Hinks
that it potentially makes virtually redundant other offences such as obtaining property by deception contained in the then version of the 1968 Act: as indeed had (unsuccessfully) been argued by counsel in those cases. As to the third factor, it is well established that appropriation, within the meaning of s. 3 (1), does not necessarily require there to be a “physical” act (even though there often will be).
56.
We drew the attention of counsel to the decision of another constitution of this court in
Roy Williams
(cited above). In that case, the defendant, a builder, targeted elderly householders. He grossly and dishonestly overcharged them for building works and obtained cheques for payment from the householders for such works. He then presented the cheques to the bank, thereby diminishing the credit balance on each householder’s account. The court held, following
Kohn
(cited above) and
Hallam
[1995] Crim. LR 323, that there had been an appropriation. In presenting the cheques the defendant, it was held, had exercised the rights of an owner with regard to the relevant credit balances (it is to be deduced that the court rejected any proposition to the effect that the defendant had solely been exercising his rights as payee of the cheques).
Disposal
57.
It has to be said that the various decisions of the courts in this context have not given rise to a wholly unambiguous or clear cut approach. Further, the approaches variously adopted sometimes seem to veer between the narrow and the broad. But it may be that this is, to an extent, a consequence of each case being fact specific.
58.
The core point remains that in this case, as in any other case of theft, there has to be an appropriation (as defined) of property belonging to another. There has to be an actus reus. So what are the facts that establish that the appellant was assuming rights of an owner with regard to the Housing Association’s credit balance?
59.
In our view, there were no sufficient facts, in the present case, to establish this.
60.
It was a feature of Mr Moll’s argument that it seemed to assume that PCS were in effect complete ciphers, automatically giving effect to the monthly forms submitted by the appellant. But the limited evidence thus far available does not justify the making of such an assumption. PCS had a payroll service to perform. It was common ground before us that it was not part of their obligations positively to check if the forms had been completed honestly and in good faith. But they would still need to check the forms before preparing the pay slips; and it is difficult to think that had, for example, a form been so completed as to contain a clear arithmetical error or had a form included overtime payments for (say) 30 and 31 February in a particular year (although in point of practice they may not always have been filled in with that level of detail), PCS would not have been entitled, and even obliged, to withhold processing the form pending further instructions or clarification. Put another way, there was no evidence that PCS was required automatically to give effect, at the behest of the appellant, to the monthly forms. Ms Power in fact told us, on instructions, that there were occasions when PCS did indeed first raise queries before processing the forms.
61.
In submitting the monthly time forms and holiday forms the appellant was not, in our judgment, assuming any rights of an owner with regard to the bank account. The situation here is different from that in
Roy Williams
. The monthly forms are not to be equated with cheques. The monthly forms of themselves conferred no rights on the appellant with regard to the bank account. Rather, the appellant was doing, albeit in some instances dishonestly, what she was employed to do as part of her employment – viz. submitting to PCS the monthly forms for payroll preparation purposes. She had no contact with the bank at all and no control of the bank account What she did, we consider, was too far removed to be an act of appropriation with regard to the bank account. It may well be that such conduct was an essential step in procuring, via the instructions of PCS to the bank, the ultimate payment out (and thence the diminution pro tanto of the credit balance). But conduct which ultimately is causally operative in reducing a bank balance does not necessarily become an assumption of rights of the owner with regard to the bank balance simply and solely because it is causally operative. Thus in the present case the appellant dishonestly induced the Housing Association (by its agents PCS) to do acts – viz. instruct the payments out – which, we accept, would be an appropriation, through PCS, by the Housing Association itself. But that did not thereby necessarily render the dishonest conduct of the appellant an appropriation by
her
of the relevant chose in action.
62.
Cases such as
Kohn
and
Hilton
are, in this respect, distinguishable. In those cases the defendant was a signatory on, and had direct and authorised control of, the account in question and gave the necessary instructions. Here, however, the appellant did not. Control of the account rested solely with the Housing Association and, for payroll purposes, with PCS, the authorised agents of the Housing Association. PCS were not the agents of the appellant in any true sense. Rather, they were her dupes. The appellant successfully deceived the Housing Association and PCS. But such deceit was not of itself, in our judgment, an appropriation, for the purposes of the 1968 Act, of the chose in action representing the Housing Association’s bank balance.
63.
Accordingly, given those facts, we conclude that the charges were not properly framed in theft. This was, on the facts, a clear potential case of fraud by misrepresentation. But that was not charged.
64.
We add two observations.
(1)
While the above cited statement in
Naviede
, as restated in
Brigg
s, may in general terms frequently represent the correct position, as will be gathered we do not think that such statement should be taken as an inflexible statement of principle of invariable application. As we see it, there may be cases where a deceptive representation inducing an account holder to make payment out of his bank account could constitute an appropriation (within the meaning of the 1968 Act). It would depend on the circumstances.
(2)
It has been suggested, most notably by Professor Sir John Smith, that cases where a cheque is dishonestly obtained and presented are different from cases where payment out of an account is procured in circumstances where the bank uses electronic or automated means. In common with the court in
Hilton
, we have some difficulty with that. It is at all events hard to see how or why (as is suggested) the latter scenario may give rise to a break in the chain of causation but the former not. That said, as will also be gathered, we do not regard the causative impact of a deception as of itself determinative of whether there has been an appropriation by a defendant with regard to a bank account in any particular case.
65.
In the result, the appeal must succeed. Sharing the views of the single judge, we reach such a conclusion with no enthusiasm. The jury had found the appellant to be dishonest. But it would be wrong to distort the import of the statutory language, as properly to be applied to the facts of this case, in order to overcome the difficulties thrown up by a wrong charging decision. The remedy in cases such as this is clear: to formulate the appropriate charges in the first place.
Substituting a verdict for an alternative offence.
66.
Mr Moll invited the court, on the footing that we were against him (as in the event we are), to substitute alternative verdicts of fraud under the powers conferred by
s. 3 of the Criminal Appeal Act 1968
.
67.
We decline to do so.
68.
This is not a case where the counts were misstated by obvious clerical slip or drafting error as occurred in cases such as
Stocker
[2014] 1 Cr. App. R 18
and
D (A)
[2016] 2 Cr. App. R 18
. To the contrary, this was a conscious prosecutorial decision to charge theft rather than fraud by false representation. Besides, theft and fraud are not coterminous, even though they may have dishonesty in common. A thief is not necessarily a fraudster. A fraudster is not necessarily a thief.
69.
Further, whilst the facts here would (on the verdicts of the jury) have grounded convictions for fraud by false misrepresentation, one has to have regard to the actual terms of
s. 3 of the Criminal Appeal Act 1968
. The question is not just whether on the facts the jury could have convicted of some other offence. The question also is whether
on the indictment
(emphasis added) the jury could have so convicted. The importance of these words in the section was emphasised in
Graham
and
D(A)
(cited above). It is difficult to see how that requirement could be satisfied in the present case.
70.
Yet further, Ms Power submitted that had the trial been conducted on the footing of fraud by false representation the defence case may well have been conducted differently. For example, she said that the defence stance towards the late introduction of the forgery allegations, and the decision not to press for an adjournment, may well have been different. She gave other possible examples. We accept that the formulation of the counts in theft, as opposed to fraud, may have impacted on the preparation and conduct of the defence case at trial.
71.
For all these reasons, we decline to substitute verdicts of guilty for some other offence.
Conclusion
72.
In the circumstances, the court is constrained to allow the appeal. The convictions are quashed. | ```yaml
citation: '[2018] EWCA Crim 1009'
date: '2018-05-04'
judges:
- LORD JUSTICE DAVIS
- MR JUSTICE KING
- MRS JUSTICE CHEEMA-GRUBB 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:
[2018] EWCA Crim 1995
Case No:
201801807/A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Thursday, 2 August 2018
B e f o r e
:
THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
(LADY JUSTICE HALLETT)
MRS JUSTICE ANDREWS DBE
MRS JUSTICE MAY DBE
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
ASSAD MOHAMMED
- - - - - - - - - - - - - - - - - - - - -
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 C Knox
appeared on behalf of the
Appellant
J U D G M E N T
(Approved)
WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
1.
MRS JUSTICE MAY: On 17 September 2016 Ricki Walia was out celebrating his birthday with friends. By the early hours of 18 February 2016 they had arrived at The Bonbar in Fenkle Street in the centre of Newcastle.
2.
At around 2.30 am Mr Walia was outside in the smoking area where the appellant was standing with his two brothers. The appellant was very drunk. In circumstances which remain unclear, the appellant hit Mr Walia hard in the face with a glass in his hand. The glass smashed, causing severe lacerations to Mr Walia's cheek and around his right eye. Most worryingly it also resulted in a penetrating injury to his left eye. He was taken to hospital.
3.
The evidence of the doctor on duty in A & E was that Mr Walia had multiple wounds to his face: a number of deep cuts, one of them stretching upwards involving his eyelid, others to his cheek. He had swelling and tenderness on his right eyebrow and swollen and tender nose with some bleeding from the nose. His right eye was red and appeared to have a cut to the surface affecting the area below the iris. The left eye had a puncture wound above the iris. Some of inner contents of the eye were protruding through the cut. At that point Mr Walia was unable to detect bright lights with this eye, was unable to see shapes or faces and had blood inside his eye. He was referred to maxillofacial surgery for the facial wounds and to ophthalmology for emergency treatment for the penetrating eye injury. Mr Walia remained in hospital for several days.
4.
The appellant was arrested at the scene. He was noted to be covered in blood, distressed and heavily intoxicated. In interview he said that Mr Walia had gone for his brother and that he, the appellant, had intervened and pushed Mr Walia away. He denied smashing a glass in his face.
5.
The appellant was charged with a section 18 offence of wounding with intent. At trial, on 21 February 2018, he pleaded guilty to the lesser alternative offence of section 20 wounding which had by then been formally added to the indictment. The trial on the section 18 offence proceeded and he was acquitted of that offence. On 27 April 2018 he was sentenced to 2 years and 4 months' custody, that sentence being reduced at a subsequent hearing convened under
section 155
of the
Powers of Criminal Courts (Sentencing) Act 2000
, on 8 June 2018, to one of 2 years. We deal later in this judgment with the circumstances under which that slip rule hearing was convened and the sentence reduced.
6.
The appellant now appeals the sentence of 2 years with leave of the single judge.
7.
The appellant, who is now aged 26, had no previous convictions. At the time of this offence he was a newly qualified pharmacist with a degree in pharmacy from Manchester University working in Newcastle.
8.
Mr Walia read out his victim personal statement at the sentencing hearing. Unusually he was asked questions about his injuries and state of recovery on that occasion. In sentencing, the learned Recorder observed that the appellant was fortunate to have been acquitted of the more serious offence. He ruled out any provocation or any attack by Mr Walia. Having heard the evidence at trial he was clear, he said, that it had been a deliberate attack by the appellant in drink and nothing more.
9.
The Recorder concluded that the injuries to Mr Walia were life changing, as he described it, not only for him but also for the appellant who stood to lose his position as pharmacists, one for which he had worked hard. The Recorder considered that the extent of the injuries to Mr Walia's eye qualified as greater harm and that the use of the glass, albeit with only one blow, involved higher culpability. The offence accordingly fell into category 1 of the guideline, with a starting point of 3 years and a range of two-and-a-half to 4 years. There were aggravating features, namely the time and location of the incident, in the early hours in a busy bar. The appellant had been very intoxicated.
10.
The Recorder also referred to the considerable mitigation. The appellant is a man of previous good character. There was a degree of remorse and there was the likely permanent loss of his profession.
11.
Balancing these factors the Recorder passed a sentence initially of 2 years and 4 months. After sentence defence solicitors managed to obtain photographs posted onto the public page of Mr Walia's Facebook account. There were some postdating the incident showing Mr Walia at his father's birthday celebration a month after the incident and also at Christmas. Others showed him on holiday abroad on a number of occasions in 2017 and 2018 and also at restaurants and other social functions. It was submitted that these pictures undermined the impression Mr Walia had given to the court at the sentence about the ongoing effect of the injuries that he had sustained. The defence had also obtained a report from the ophthalmology clinic where Mr Walia had been attending since the accident. It appeared that his vision was now normal and there were no further appointments booked.
12.
In the light of this evidence the defence asked for a further hearing. The court directed that the case be listed under the slip rule and that the prosecution should attend. Mr Walia was invited to attend also and, if agreeable, to be tendered for cross-examination. That hearing took place on 8 June 2018. Mr Walia attended and was once more asked questions. We have read the transcript of that hearing. At the end of what the Recorder rightly described as "a further opportunity to address the full impact of the offence on the victim", he concluded that in view of the fuller and up-to-date picture he was prepared to vary the sentence by reducing it to the starting point under category 1 of the guideline, namely 3 years, which he then reduced for mitigation and discounted by 25% for plea, resulting in a sentence of 2 years. He declined to suspend that sentence on the basis that:
"... applying the guideline on the imposition community and custodial sentences, appropriate punishment could only be achieved by immediate custody."
13.
Mr Knox, who appears for the appellant on this appeal as he did at trial, submitted that the Recorder erroneously concluded that Mr Walia's injuries were life changing, placing the offender wrongly in category 1, resulting in a sentence which was manifestly excessive. However we understood him at the hearing before us to have conceded that this was offending which did fall within category 1. The second point made by Mr Knox is that the judge should have suspended the sentence which he passed which would have offered some chance of the appellant being reinstated in his profession.
14.
Mr Knox rightly does not seek to underplay the severity of the injuries themselves. He argued that Mr Walia had over-exaggerated the extent of the ongoing effect on him of these injuries in order to bolster his case for compensation. In reducing the sentence following the slip rule hearing the Recorder must have concluded that there had been some exaggeration, he submits, but that the reduction failed properly to deal with the consequences of that overstatement in terms of the sentence passed on this appellant. We disagree.
15.
The learned Recorder heard from Mr Walia at trial, at the sentencing hearing on 27 April and then again at a further hearing on 8 June 2018. The Recorder was thus in the best possible position to evaluate the extent of the effect of the injuries which this appellant had inflicted and where they fell in terms of harm for the purpose of the Sentencing Guideline. The injuries were unquestionably serious involving, as they did, deep cuts to the face and penetration of the glass into one eye. It could so easily have been much worse.
16.
A sentence of 2 years equates to one of 32 months after trial, allowing for the 25% discount. This is lower than the 3 year starting point for category 1, indicating that substantial allowance had been made for this appellant's undoubtedly strong personal mitigation.
17.
We regard the 25% discount as somewhat generous in the circumstances. It was not until the first day of trial that an unequivocal plea of guilty to the section 20 offence was indicated to the Crown and to the court. Prior to that, self-defence and accident still appeared to be somewhat live issues on the face of the defence statement filed with the court. Even if the section 20 count had not been formally included on the indictment prior to trial, it would have been open to the appellant's representatives to ask for the case to be listed so as to enter a plea to the lesser alternative.
18.
For these reasons we do not believe that the Recorder erred in the conclusions which he reached as to where this offending fell into the guideline nor do we regard the sentence which he passed as manifestly excessive. His decision not to suspend was one which it was within his discretion to make. As to this the Recorder clearly had in mind the relevant guideline. We cannot see that he exercised his discretion wrongly or unreasonably. In any event, we agree with him that appropriate punishment for breaking a glass in someone's face near their eyes could only be achieved by imposition of a sentence of immediate custody.
19.
For this reason we dismiss this appeal.
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 1995'
date: '2018-08-02'
judges:
- MRS JUSTICE ANDREWS DBE
- 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 837
Case No:
200800659 A2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM OXFORD CROWN COURT
HHJ JULIAN WALL
T 20067221 and T20077004
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
29/04/2009
Before :
LORD JUSTICE AIKENS
MR JUSTICE TUGENDHAT
and
MR JUSTICE NICOL
- - - - - - - - - - - - - - - - - - - - -
Between :
R
Respondent
- and -
ANTHONY BARRON
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr David Miller
for the
Appellant
Mr Amjad Malik
for the
Prosecution
Hearing dates : 13
th
March 2009
- - - - - - - - - - - - - - - - - - - - -
Judgment
LORD JUSTICE AIKENS:
The Facts
1.
This is an application for leave to appeal on sentence out of time, which has been referred to this court by the Registrar for reasons we shall come to later in this judgment. In 2007 Anthony Barron (the Applicant) faced two indictments charging him with a very large number of sexual offences. On 11 May and 15 June 2007, at pleaded case management hearings, he had pleaded guilty to some 84 counts on the two indictments. These counts included many allegations of indecent assault on young girls, possessing indecent photographs of a child (containing both still and moving images), and sexual assault of a child under 13. Also amongst those 84 counts to which he pleaded guilty were two counts of attempted anal rape and a further count of attempted vaginal rape. In many cases, the Applicant had filmed his own sexual assaults.
2.
The applicant contested two charges; one of attempted anal rape and another of completed vaginal rape. These were counts 26 and 27 on Indictment two. Both offences were committed on the same 12 year old girl, KJ, on the same day, 13 July 2003. Both were filmed by the applicant. There was a trial in respect of those offences before HHJ Hall and a jury at Oxford Crown Court between 28 – 30 August 2007. He was convicted on both counts.
3.
Therefore, when Judge Hall came to sentence the applicant on 30 August 2007, he had to pass sentence in respect of 86 offences on the two Indictments. 44 further alleged offences were ordered to remain on the file on the usual terms. 36 of those were counts on Indictment one; 8 on the Indictment two.
4.
The court record states that the total sentence passed was one of life imprisonment, with a minimum term of 9 years to be served, less 229 days spent on remand. We will have to analyse how that total was arrived at by the judge. First, we must give more details about the applicant and the offences for which he had to be sentenced.
5.
The Applicant was born in November 1952 and was therefore 54 when he came to be sentenced. At that time he had no previous convictions. He had been married and had two sons and a daughter, but he had separated from his wife in about 1994. He was made redundant at about the same time. He divorced in 1998. He was, on the face of things, an upright member of the community in South Oxfordshire. He lived opposite his sons’ school in Wantage and he would go to the nursery where his youngest son attended. He became a governor of the school and also an unpaid parent volunteer there; he would assist in the classroom twice a week. He obviously got to know other parents and their young children.
6.
On numerous occasions from February 1997 the applicant contrived to be alone with a number of young girls whose parents he had come to know. He sexually abused the girls. The abuse ranged from touching their bottoms to oral and penile penetration. On various occasions the Applicant masturbated himself whilst touching the victims’ private parts. He sometimes put his penis into the mouth of his victim. He sometimes encouraged them to expose their genitalia, and to masturbate him. He pleaded guilty, as we have said, to three counts of attempted rape and was found guilty of a further attempted anal rape and a completed rape of the same girl’s vagina. A significant proportion of these offences were video recorded by the Applicant for his sexual gratification. The Applicant sought to keep the abuse secret by giving the children sweets, toys, games and clothes.
7.
This was an appalling catalogue of sexual offences. Apart from the gross mistreatment of many very young children, the Applicant had comprehensively abused the trust of their parents who had allowed him to look after their young daughters. When the judge passed sentence, he acknowledged that the Applicant had been through the stresses of divorce, loss of his job and the death of his mother, but none of that could explain his offending. The judge was unable to detect any genuine remorse by the Applicant for his behaviour which, in his view, remained utterly inexplicable. The judge described the applicant, rightly in our view, as a “
predatory, plausible, paedophile
”, who corrupted the children so that they became inured to his behaviour towards them.
The sentencing exercise by the judge
8.
Judge Hall was faced with a very formidable sentencing exercise. First, there was the sheer number of offences that had to be considered. He had to consider each, whilst ensuring (as he recognised) that the totality of the sentence remained proportionate. Secondly, the offences had taken place over a period of 9 years between 1997 and October 2006. During that period the sentencing regime had undergone considerable changes. First, on 11 January 2000, the maximum term for making an indecent photograph of a child contrary to
section 1
of the
Protection of Children Act 1978
had been increased from 3 to 10 years. Then, on 1May 2004, the
Sexual Offences Act 2003
came into force, replacing the
Sexual Offences Act 1956
, changing both the name and nature of various offences and also changing maximum sentences for various offences. Lastly, and most importantly, on 4 April 2005 the relevant provisions of
Part 12 Chapter 5
of the
Criminal Justice Act 2003
(
“
CJA 2003
”)
, relating to “dangerous offenders” came into force. The judge had to take all those into account in the sentencing exercise that he had to conduct, as well as the facts of each offence.
9.
The first task the judge undertook was to consider whether, for the purposes of
sections 225 – 229
of the
CJA 2003
, the applicant was “
dangerous
”. The judge did not spell out the fact that this exercise was, of course, only relevant to those “
serious
” or “
specified
” offences that had taken place after those provisions came into force, that is, after 4 April 2005. There are a large number of such offences in both the first and the second Indictment and they have been gathered together in a schedule for us by counsel for the prosecution, Mr Malik, for which we are most grateful. However, we do not need to identify each of them for the purposes of this judgment.
10.
The judge concluded that the applicant was “dangerous within the meaning of the statute”: see page 4E of his sentencing remarks. He then went on to ask: “why, in those circumstances, should it not be a life sentence under section 225? I can find no reason. This is as serious a series of offences as I think I have ever come across”. Those remarks can only apply to “serious offences” (within
section 224(2)
of the
CJA 2003
)
committed after 4 April 2005. They can also only apply to offences in respect of which the Applicant would, apart from
section 225
of the
CJA 2003
, be liable to life imprisonment. The judge must also have concluded that, in respect of such offences or one or more offences associated with it (meaning those committed after 4 April 2005), that it, or they, were such as to justify the imposition of a life sentence. In short, an offence (with or without others associated with it) was such as would justify the imposition of a discretionary life sentence: see
R v Lang
[2005] 1 WLR 2509
at
para 8,
which refers to
R v Chapman
[2000] 1 Cr App R (S) 377
.
As we analyse further below, we have concluded that the judge must have had in mind, in fact, the two charges of attempted rape on KB, then aged 4 years 8 or 9 months, in February 2006, which formed Counts 60A and 73 of Indictment one.
11.
The judge did not specifically articulate all those points. But we are confident that he had them in mind and there is no appeal from the finding of dangerousness by the judge.
12.
The judge then turned to those pre – 2003 Act offences which carried a maximum sentence of life imprisonment. These were Count 31 on Indictment one: attempted rape, committed on FW when aged 4 years 6 months on 22 April 2004, and Counts 26 and 27 on Indictment two: attempted rape and rape committed on KJ, aged 12, on 13 July 2003. (The latter offences were those for which the applicant was tried and found guilty). At page 4F of his sentencing remarks the judge refers to “
four offences of attempted rape and the offence of rape of which the jury convicted you
” but we think he must have intended to refer to the three offences we have identified.
13.
The judge stated, at page 4F, that the sentence on those offences would be one of life imprisonment, because he had no idea when the applicant would be safe.
14.
The judge then said, at page 4H:
“what I have to do is to put myself in a position of having to pass individual sentences for each matter so that I can arrive at a tariff, what is called the tariff sentence. There is no perfect way of doing this because there are so many offences and if I were to give you a year on each of them, which would be well below a normal sentence, the result would be a sentence of 80 odd years, therefore it cannot be done and, therefore, I have had to compromise in various ways in the sentences I intend to pass”.
15.
The judge then recited various factors he would take into account in fixing the sentences. These were: (1) the fact that many offences were filmed. (2) The victims were small girls. (3) The fact that the applicant took moving (as opposed to still) images of many offences.
16.
The judge passed sentences of two years in respect of each of the offences of taking or making still images of children, whatever the dates on which they occurred. Those offences are covered by counts 4,6,10,12, 43 and 87 of Indictment one and counts 1,3,5,11,12,13,17 and 19 of Indictment two. He passed sentences of four years in respect of the offences of taking or making moving images of children: that is in respect of counts 18,23,27,29, 33, 36, 38, 45, 50, 61, 64, 66, 70, 74, 80 and 82 of Indictment one and counts 7, 23,28,30,32, 34, 37 and 39 of Indictment two. He stated that those sentences were to be served concurrently and he said that he had given the applicant a 20% discount for his guilty plea.
17.
The judge then considered other offences “
to calculate the tariff”:
page 6C. The judge went through the indecent assault charges in Indictment one and also the charge of indecency with a child (count 7). That was a serious offence against FW, aged 3 ½ at the time, where the applicant ejaculated onto her vagina. At page 6E of the transcript, the judge states that the sentence for that offence will be one of seven years. However, at the end of that paragraph , which is dealing with Indictment one offences, the judge says, at page 6E: “
All those sentences to be concurrent. That is five years imprisonment”.
That is the overall figure for that group of offences that the judge seems to have used.
18.
In the same paragraph the judge passed a sentence of life imprisonment in respect of count 31 on Indictment one. That was an offence of attempted rape committed in 1999 on FW aged 4 ½ at the time, committed in 1999, ie. before the commencement of the
CJA 2003
provisions.
19.
The judge then considered offences against the twins MB and KB, who were aged 4 years when the offences took place in 2006. In respect of the indecent assault charges (counts 44, 46, 51, 57A, 62, 65, 67, 71A and 78 on Indictment one) the judge imposed sentences of between four and six years. In respect of counts 63 and 76, (causing or inciting a child under 13 to engage in sexual activity) he imposed sentences of 6 and 5 years respectively. In respect of the two charges of attempted rape on KB (counts 60A and 73 of Indictment one) the judge imposed life imprisonment. The judge summarised the position on sentence with regard to that group of offences, apart from the attempted rape sentences, as follows (page 7A):
“All those sentences will be concurrent, so, leaving aside the life sentences for a moment, that is six years, which will be consecutive to the tariff fixed for the first series of offences”.
We will have to come back to the question of what the judge meant by “
the tariff”
in his sentencing remarks.
20.
The judge then moved onto Indictment two. He passed sentences of between two and five years on the indecent assault offences (counts 2,4,6,7,14, 15, 16, 18, 20, 21, 22, 29, 31, 33, and 35). He stated (at page 7D) that those sentences would be “
concurrent, but consecutive to the sentences to the tariff that I am in the process of calculating”.
21.
The judge then considered the two offences for which the applicant had been tried: viz. attempted rape and rape on KJ aged 12, which were counts 26 and 27 of Indictment two. These were both pre
CJA 2003
offences. The judge had already (page 4F) imposed a sentence of life imprisonment in respect of them. He said (at page 7E) that “…
had I to fix a separate tariff for those matters they would have been 12 years imprisonment. I will come back to that in a moment
”. He then sentenced the applicant to “
3 years consecutive
” on count 38, an offence of sexual assault on a child under 13 which was committed in September 2006. The judge described that case as a “
particular wickedness”
because it was committed on the daughter of a woman with whom the applicant had formed a relationship.
22.
The judge then summarised the position as he saw it at page 7F:
“That makes, in my calculation, this: 4 years concurrent with each other, in effect, for the moving images. Five years for the first batch of offences. Six years for the second batch of offences. Three years consecutive for count 38 [of Indictment two]….Twelve years concurrent for the offences of attempted rape and rape. It makes 18 years. That is the tariff sentence for these series of offences.
For the offences for which I have passed sentences of life imprisonment for attempted rape, the tariff would have been 7 years, which I make concurrent. The net effect of this and these are mathematical calculations which I find unedifying but necessary. Had I passed, therefore, a determinate sentence it would have been one of 18 years. I halve it, 9 years. I give you credit for 229 days spent on remand. I therefore direct that the first time that you can apply for parole during this life sentence is after 9 years less 229 days you have served”.
23.
The effect of this passage seems to us to be that, broadly, the judge concluded that if he had been passing determinate sentences on the applicant, the total would have been 18 years. He used this total as the basis for assessing a notional determinate sentence for in order to calculate the minimum term to be served before the applicant could apply for parole, then giving credit for the 229 days served on remand. But the judge does not stipulate that this is a minimum term in respect for a particular offence or offences that he identifies; nor does he identify whether it is an offence or offences that is (or are) before or after 4 April 2005.
The application to this court
24.
The application for leave to appeal out of time related to two matters. The first is the sentence for the offence of sexual assault on AEL (aged 3 ½ at the time) in September 2006. As we have already noted, the judge imposed a sentence of three years, to be consecutive to other determinate sentences imposed in respect of Indictment two offences in respect of the sexual assault (count 38 of Indictment two). The complaint was that the judge had misunderstood the relationship and its timing, so that he should not have made the sentence on count 38 a consecutive one. The second complaint is in relation to the sentence of 4 years in respect of the offences of making or possessing indecent moving images of children. The applicant said that those sentences were too severe.
25.
At the hearing before us on 13 March 2009, Mr Miller did not actively pursue this application. Moreover, he confirmed that the applicant did not challenge the overall sentence of life imprisonment with a minimum term of 9 years before he can be considered for parole. Therefore the only reason for the matter coming before the court was the concern of the Registrar about the lawfulness of the sentences that the judge had passed for certain of the offences committed after 4 April 2005 when the provisions of the
CJA 2003
were in force
.
This concern relates to counts 43 to 82 on Indictment one and counts 38 and 39 on Indictment two.
26.
The Registrar makes the point that all of those offences are “
serious offences
” within the meaning of
section 224(2)
in
Part 12 Chapter 5
of the
CJA 2003
.
Therefore, once the judge had concluded that the applicant fulfilled the “dangerousness” criteria within that Part, then under the regime that applied when he passed sentence, the judge was obliged to pass a sentence of imprisonment for public protection by virtue of
section 225
of the
CJA 2003
.
Thus, to the extent that the judge did not do so, the sentences were unlawful.
27.
The question is: can this court do anything about it and, if it can, should it do so? This very problem was considered by the court in
R v Reynolds and others
[2008] 1 WLR 1075
,
[2007] EWCA Crim 538
.
In that case Latham LJ stated that the Court of Appeal does not have jurisdiction to impose a mandatory indeterminate sentence in place of a determinate sentence wrongly imposed by the sentencing judge because he failed to follow the mandatory provisions of
Part 12 Chapter 5
of the
CJA 2003
.
That is because it would almost invariably mean that the appellant (applicant in this case) was being dealt with more severely than he had been by the sentencing judge. Therefore it would offend
section 11(3)
of the
Crimianl Appeal Act 1968
.
However, it was noted at the same time that it does not follow that the Court of Appeal is obliged to interfere with the judge’s finding of dangerousness. The court should, all other things being equal, “
exercise its discretion
” not to interfere with the sentence imposed. See paragraphs 18 – 25 of the judgment of Latham LJ.
28.
Mr Malik, for the Crown, submitted that
Reynolds
was distinguishable from the present case. He says that the imposition of indeterminate sentences for post 4 April 2005 offences would not make the overall sentence more severe because the judge had imposed life sentences in respect of some post 4 April 2005 sentences; and the applicant does not challenge those sentences nor the minimum term of 9 years. Despite that submission, we have decided that we must follow the same course as the court in
Reynolds.
Therefore, in respect of all offences that are post 4 April 2005 offences and are “serious” offences within
section 224(2)
of the
CJA 2003
we make no order.
Observations
29.
That deals, formally speaking, with all the issues that were raised on this application, which must therefore be dismissed. However, we feel obliged to make some further comments about the sentencing exercise in this case. We do so with some hesitation because we are conscious of the very difficult task that faced the judge, as we have already noted. But, with the greatest of respect, we venture to suggest that the authorities indicate that the approach should have been more structured than it appears to have been.
30.
In
R v Lang
[2006] 1 WLR 2509
at
paragraph 3, Rose LJ
said that when a defendant is to be sentenced for offences that occurred both before and after 4 April 2005, it will generally be preferable to pass sentence on the later offences by reference to the “
new regime
” and to impose no separate penalty for the earlier offences. But he recognised that this may not be possible in cases where the earlier offences are more serious than the later ones. Therefore, we suggest, the first task of the judge must be to identify the most serious cases to be sentenced and to identify which regime applies.
31.
In this case there were two post 4 April 2005 attempted rapes; those on the 4 year old KB which were committed in 2006 (Counts 60A and 73 on Indictment one, to which the applicant pleaded guilty). As Mr Malik for the Crown reminded us, the only reason why these were charges of attempted rape rather than rape was because it was physically impossible for the applicant to commit the full offence on so small a child. The judge clearly regarded these offences as very serious because, having concluded that the applicant was “dangerous”, he imposed life sentences in respect of each offence. The judge assessed the “tariff” for those offences to be 7 years: see page 7H of the sentencing remarks. We take the word “tariff” to mean, in that context, the “minimum term” to be served pursuant to
section 225
of the
CJA 2003
and
section 82A
of the
Powers of the Criminal Courts (Sentencing) Act 2000
.
We interpret the sentencing remarks as indicating that the judge decided that the correct determinate sentence for each offence would have been 18 years, less 20% for guilty pleas, giving 14 years. To reach the minimum term that figure would be halved, giving a minimum term of 7 years. That reasoning would, we think, be in accordance with the Sentencing Guidelines in the context of this case.
32.
With regard to the pre – 4 April 2005 offences, the judge imposed three discretionary life sentences. For the attempted rape and rape of which the applicant was convicted (counts 26 and 27 of Indictment two) the judge said that if he had had to fix a “
separate tariff”
for those matters, it would have been 12 years imprisonment: page 7E. As we read that sentence of the sentencing remarks, the judge used the words “
separate tariff”
to mean that if he had been dealing with those offences on their own and had imposed a discretionary life sentence for them, the notional determinate sentence (for the purposes of calculating the minimum term to be served) would have been 12 years. Therefore, notionally, the minimum term for those offences, taken on their own, would have been 6 years. If “
separate tariff”
had meant “minimum term” in that sentence of the judge’s remarks, that would be wholly inconsistent with the final minimum term that the judge imposed “overall” (ie. 9 years). It would also have implied a notional determinate sentence of 24 years for those offences, which would have been too high.
33.
The judge did not identify either a notional determinate sentence nor a minimum term in respect of the attempted rape on FW, count 31 on Indictment one.
34.
It would appear, therefore, that the judge did regard the two post 4 April 2005 attempted rapes on KB (Counts 60A and 73 of Indictment one) as the most serious offences. Yet, ultimately, the judge imposed “overall” a life sentence with a minimum term of 9 years (less 229 days). It is, with respect to the judge, not easy to follow the route to this conclusion, although that overall sentence is not now challenged.
35.
We have concluded that the judge’s reasoning must have been as follows: first, under the provisions of
section 82A(3)(a)
of the
Powers of the Criminal Courts (Sentencing) Act 2000
,
when setting the minimum term for two post April 2005 attempted rapes for which he had imposed life sentences, he could take into account the seriousness of each of the offences themselves and “
one or more offences associated with it”.
He also must have had in mind
section 161
of the
2000 Act,
which provides that “
an offence is associated with another if the offender is convicted of it in the proceedings in which he is convicted of the other offence”.
36.
Secondly, the judge properly considered the totality of the applicant’s offending when setting the minimum term of 9 years. This is a legitimate exercise: see
R v Frederick Edwards
[2007] 1 Cr App R (S) 106
,
particularly at
paragraphs 23
and
24.
However, we note in passing that, in accordance with the guidance in that case and
R v O’Brien
[2007] 1 WLR 833
at
paragraphs 67
and
68,
it would have been more appropriate for the judge to have identified specifically the offences to which the total minimum term of 9 years was intended to apply, rather than leaving it generally as he appeared to do.
37.
The judge calculated the notional determinate sentence of 18 years by indicating determinate sentences for offences that were both pre – 4 April 2005 and post – 4 April 2005. In respect of the latter group, he indicated determinate sentences both for offences which were “
serious
” offences and a “
specified
” offence (count 87 of Indictment one). This method of calculating a notional determinate sentence for an offence to which
section 225
of the
CJA 2003
applies has been used before, at least in respect of serious offences and specified offences that were committed after 4 April 2005: see
R v Lee Meade
[2007] 1 Cr App R (S) 123
, paragraphs 23, 30 – 32.
38.
However, as Teare J emphasised in that case, (paragraph 33), the judge must stipulate, in respect of each offence to which a minimum term applies, what that minimum term is and how it has been calculated. Furthermore, there should be a separate disposal for each offence: paragraph 29.
Summary
39.
As we have already said, there is now no effective application before the court from the applicant. The court will not make any alteration to those post – 4 April 2005 offences in respect of which the judge should have imposed a mandatory indeterminate sentence. We will take it that the minimum term of 9 years applies to Counts 60A and 73 of Indictment one. We will also take it that the other minimum term imposed, which, by implication, we take to be 6 years on counts 26 and 27 of Indictment one and also count 31 of Indictment one are to run concurrently with the 9 year terms. All other sentences, which are determinate sentences, are to be concurrent with the life sentences with the minimum terms that we have identified.
40.
This application is dismissed. | ```yaml
citation: '[2009] EWCA Crim 837'
date: '2009-04-29'
judges:
- LORD JUSTICE AIKENS
- MR JUSTICE NICOL
``` |
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:
200802340 C2
Neutral Citation Number:
[2009] EWCA Crim 139
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Wednesday, 21st January 2009
B e f o r e
:
LORD JUSTICE TOULSON
MR JUSTICE McCOMBE
MR JUSTICE DAVID CLARKE
- - - - - - - - - - - - -
R E G I N A
v
RUKHSANA KOUSAR
- - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - -
Mr J Challinor
appeared on behalf of the
Appellant
Mr L Weston
appeared on behalf of the
Crown
- - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE DAVID CLARKE: On 17th March 2008, in the Crown Court at Birmingham before Mr Recorder Edwards and a jury, the appellant, who is 30 years of age, was convicted on counts 5 to 9 of an indictment alleging unauthorised use of a trademark contrary to
section 92(1)(c)
of the
Trade Marks Act 1994
. That section provides, as far as relevant, as follows:
"A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor -
...
(c) has in his possession, custody or control in the course of a business any such goods with a view to the doing of anything, by himself or another, which would be an offence under paragraph (b)."
She was the wife of Mohammed Sajid, a co-defendant who also stood trial. He stood trial on all nine counts and was convicted on all counts. The appellant appeals against her conviction by leave of the Single Judge.
2.
The husband was a market trader who worked on a market stall in Walsall and, on 24th May, items were seized from their stall by a police officer and forwarded to Trading Standards Officers on the basis that the goods were counterfeit goods. Those items formed the basis of counts 1 to 4, on which the present appellant was not charged.
3.
On 17th June, Trading Standards Officers searched the home address, which was shared by both husband and wife and their children, and found a large quantity of counterfeit items both in the loft of the house and in a van parked outside, of which the husband was the registered keeper. Counts 5 to 7 represented the property in the van. Counts 8 and 9 represented the property in the loft.
4.
The prosecution's case was that the husband was a trader in counterfeit goods which he willingly sold on his market stall. Their case against the appellant was that she was aware of the counterfeit goods because they were stored in the family home and on this basis it could be said that she also was in possession of them. It was also alleged that the items in the van were items which had been part of the stock in the house and thus that she was in joint possession also of that property, although no such allegation was made in relation to items seized from the market stall. The defence of the husband was that the goods had been in the loft and van for a number of years. The jury did not accept it.
5.
The defence case for the appellant was that she was not in possession, custody or control of the items seized. She had no involvement in her husband's business and she had no knowledge that the items were counterfeit. We should add that, when in due course the defence was presented before the jury, she gave evidence of being employed in other employment altogether and being in charge of the children. The van concerned was not the family transport and she did not use that.
6.
The evidence for the Crown included evidence that the husband had been apprehended and property seized and that the enforcement officer at the city council was involved in a search of the property. Fifty bags of goods were recovered from the van and 12 from the loft. The appellant on her arrest declined to be interviewed on health grounds.
7.
The case was presented against her on the basis that she was jointly with her husband in possession of the items in the loft and in the van. The case was not presented against her on the basis that her husband was in possession and thus guilty of the offence as a principal and that she, the appellant, aided and abetted his possession. Only primary possession was alleged.
8.
At the close of the prosecution case, counsel for both defendants submitted that there was no case to answer. As regards the husband, an evidential point was raised relating to the items upon the market stall but that is of no relevance now. As regards the appellant, the submission was that there was no evidence on which the jury could infer either joint enterprise in the husband's market business or possession of any of the goods in her car. The submission was rejected and the appeal before us is based on the ground that the judge was wrong to reject it.
9.
In his argument before the judge, counsel for the defendant then, Mr Challinor, drew a distinction between the goods in the van and those in the house. He accepted, clearly rightly, that the jury could infer knowledge of the presence of those stored in the loft but not those in the van, there being no evidence that they were in fact items which had been in the house. It seems to us that there was some force in the drawing of this distinction but we do not need to deal separately with it because the core issue on possession is whether there was evidence on which the jury could infer that she was herself in possession of the goods in the loft. If there was no evidence to support that then there was none in relation to the goods in the van.
10.
Counsel submitted, relying on authority, that knowledge was not enough. Either encouragement or assistance to the husband so as to set up a case of joint enterprise, or actual exercise or control of the goods, was required. Mere acquiescence was not enough. It was further argued that, even if possession on her part could be inferred, there was no evidence that she was in possession in the course of her business with a view to profit or gain. The Crown's response on the main point was that there was ample evidence of knowledge. The goods must have been stored in the house with her co-operation and permission. Reliance was placed particularly on a decision of this court in
McNamara
in response to the reliance placed by the defence on a number of cases, including
Bland
, to which we shall return.
11.
As to the second point, the Crown argued that because her possession was joint possession with her husband it was inevitably joint possession in the course of a business for profit or gain. The learned recorder ruled on the submission in quite brief terms as follows. Having dealt with the submission on behalf of the husband, he said this:
"On behalf of Miss Kouser, it is submitted that in relation to Counts 5 to 9, although property was found in her loft and in her husband's van, she did not exercise a requisite degree of control over that property, and that there is no evidence to show she knew either their ultimate destination or was privy to his business activities.
I have been helpfully referred to a number of authorities concerned primarily in the finding of drugs in houses, namely
Searle
,
Bland
,
Conway and Burkes
, and
McNamara
, and I am grateful to all counsel for the succinct and helpful way they have advanced their submissions.
I reject both."
He then went on to deal with the submission on behalf of Sajid Hussain and went on in this way as regards the appellant:
"... as far as Ms Kouser is concerned, in my judgment the jury are quite entitled to infer (whether they do so or not being a matter for them) from all the circumstances on her part, both as to the presence of these articles in her loft and in her husband's van, and infer that that property was ultimately for sale."
12.
It is apparent from that citation that he did not in terms say what it was that the jury were quite entitled to infer, but he must have been referring to the submission that she did not exercise a requisite degree of control over the property. So, what he held was that there was evidence of a requisite degree of control over the property so as to render her in possession of that property. The Recorder did not deal at all with the subsidiary point about the items in the van as contrasted with those in the loft.
13.
At the heart of this appeal, having regard to the fact that primary possession was alleged, is the concept of possession and in particular the concept of control and we remind ourselves that the wording in the Act is "possession, custody or control".
14.
The Crown's argument is that, this being the matrimonial home in which the whole family lived, she was in a position to exercise control and that she had the right to decide what was and was not kept in the house. She could have required her husband to remove the goods from the house. There was, however, no evidence that in relation to these goods she ever did in fact exercise control in the sense of actually doing anything, nor indeed did she have any involvement in her husband's activities.
15.
It seems to us that the high watermark of the case for the prosecution in relation to possession is what is set out in paragraph 6 of Mr Weston's helpful and concise skeleton argument which we have before us, where he sets out what in his submission was the clearest evidence from which the jury could infer:
"a. The Appellant knew of the goods in the house.
b. The Appellant knew that the goods in the house were not there for any domestic purpose - the quantity was too great and they were on hangers.
c. The Appellant knew that her husband was trading as a market trader.
d. The Appellant knew that the stock for that market trading was the goods within the house and within the van."
We interpose to say "so far so good", but he goes on:
"e. The Appellant co-operated and allowed the goods to be in the house as they took up a large part of storage space in the house.
f. The Appellant had the ability to control the goods in the home she lived [in]."
16.
We make brief reference to the authorities cited to the judge. They are decisions of this court in the context of the possession of drugs, dealing with the limit of secondary liability in offences of possession. Read as a whole, they establish the proposition set out in Professor Smith's commentary to the last of these cases,
R v McNamara and McNamara
[1998] Crim LR 278, of which Mr Weston has helpfully provided us with the full transcript. Professor Smith said this:
"The evidence must be sufficient to satisfy a jury either that each party was in possession with intent to supply or that someone (in the present case possibly a third party) was and the defendant not only knew that he was but also assisted or encouraged him in the enterprise."
McNamara
was relied upon by the Crown in the present case to establish that the earlier decision in
R v Bland
[1988] Crim LR 41 was to be decided on its own facts and was limited to its own facts. The facts in
McNamara
went considerably further. But in our judgment nothing in either case lent support to the contention that "ability to control", in the sense in which those words are used by the Crown here, is enough. Control, in the sense of ability to demand that the property be removed or ability to remove it oneself, is in fact no more than knowledge and acquiescence. That is not enough. There are earlier decisions that were cited to the judge:
R v Searle
[1971] Cr.App.R 592 and
R v Conway and Burkes
[1994] Crim LR 826. They are to similar effect and in our judgment take the matter no further.
17.
To say that she had the ability to control, or the right to control, the goods in the house is no more than to say that it was her house, she lived there, she knew the goods were there; thus she had the right to demand that they should be removed, she acquiesced in their presence in the house and that was sufficient to render her in possession of them.
18.
In the course of argument some discussion was engendered about the normal domestic situation: is a husband or wife to be regarded as in joint possession of items in that house which are in fact the property of the other spouse? Is a husband to be regarded as in possession of clothing and cosmetics, for example, of which his wife is both the owner and the possessor? We venture to suggest that that concept is quite inappropriate. One is not in possession of one's spouse's personal property in that sense. The term "permission" has been used, that she permitted this property to be in the house. Permission may be something more than an acquiescence but even then is not in our judgment sufficient to render the permittor a person in possession of the goods. In the field of drugs offences, there is a specific offence of permitting premises to be used for certain activities but there is no equivalent in the legislation with which we are concerned. A finding of being able to exercise a measure of control, which is the basis upon which this issue was in due course left to the jury, is not the same as a finding that she did exercise control.
19.
The question can be approached from a different angle altogether by reference to the second limb of the appellant's argument before the judge: was the appellant in possession of these goods in the course of a business, because that is an element of this case. The Crown had to prove that her possession of the goods was possession in the course of a business and it seems to us that, if they could not establish that she was involved in the business as a participant, whether paid or otherwise, in the business of dealing with these goods, then they could not establish that element of their case. Thus, even if, contrary to our view, her so-called ability or right to control the goods was sufficient to render her in possession of them, this still did not suffice to establish that further element of these offences. Our conclusion, therefore, is that this appellant in truth did not have a case to answer and the learned Recorder fell into error in ruling that she did.
20.
Accordingly, this appeal against conviction is allowed. | ```yaml
citation: '[2009] EWCA Crim 139'
date: '2009-01-21'
judges:
- LORD JUSTICE TOULSON
- MR JUSTICE McCOMBE
- MR JUSTICE DAVID CLARKE
``` |
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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>
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.
No. 202100127 A4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2021] EWCA CRIM 266
Royal Courts of Justice
Friday, 5 February 2021
Before:
LADY JUSTICE ANDREWS
MR JUSTICE SPENCER
HIS HONOUR JUDGE AUBREY QC
REGINA
V
KEITH SECKER
__________
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]
_________
MR K. HECKLE
appeared on behalf of the Appellant.
________
J U D G M E N T
MR JUSTICE SPENCER
1
This application for leave to appeal against sentence has been referred to the full court by the Registrar for an urgent hearing. We have found it a difficult case.
2
On 17 December 2020 in the Crown Court at Chester the applicant, who is now 43 years of age, was sentenced by HHJ Thompson to a total of 18 months' imprisonment. The applicant had pleaded guilty at a previous hearing to offences of possessing indecent photographs of a child, contrary to s.160(1) of the Criminal Justice Act 1988 (Count 1), making indecent photographs of a child, contrary to s.1(1)(a) of the Protection of Children Act 1978 (Counts 2, 3, 4) and possessing extreme pornographic images, contrary to s.63(1) of the Criminal Justice and Immigration Act 2008 (Count 5). On Counts 1 and 2 there were concurrent sentences of 18 months' imprisonment. On Counts 3 and 5 there were concurrent sentences of six months' imprisonment and on Count 4 a concurrent sentence of one month imprisonment. A Sexual Harm Prevention Order was made for a period of 10 years and there were other appropriate ancillary orders as to which no complaint is made.
3
The grounds of appeal are that the sentence of 18 months' imprisonment was manifestly excessive and that any sentence of imprisonment should have been suspended.
4
On 28 August 2019 the police executed a search warrant at the applicant's address where he lived with his partner and their three children. Various devices were seized and sent for forensic analysis. This revealed a large number of indecent images of children and extreme pornographic images.
5
In total, there were 581 indecent images of children. Count 1 charged the applicant with possession of all those images. Counts 2, 3 and 4 charged the applicant with making indecent images of children by downloading the images, breaking down the 581 images by category. Those counts related to images of Category A, B and C, respectively.
6
There were 240 Category A images and 15 Category A videos (Count 2). The judge was provided with a schedule giving descriptions of some of the images and videos. The most disturbing of the videos showed a young girl, approximately three to four years old, being tortured, gagged across the mouth and face, and with clamps or clips on her nipples. She was hanging upside down by her legs whilst her vaginal area was violently hit by an adult hand. It was one of the worst images the investigators had ever seen. Other Category A images depicted girls aged six to eight years made to take part in oral and vaginal penetrative sex with adults, including ejaculation. In one of the videos the girl was blindfolded, on her knees and crying, being forced to commit a sexual act.
7
Count 3 charged the downloading of 167 Category B images and four Category B videos. Count 4 charged the downloading of 155 Category C images. Count 5 charged the possession of 353 extreme pornography images, including an image of a naked adult female indulging in oral sex with a horse.
8
The downloading of all these images spanned a period of ten years.
9
The applicant was interviewed the day after his arrest. In a prepared statement he denied being involved in any sort of child sex offence or paedophilia and answered no comment when questioned about his computer use and whether any indecent images would be found. Following his arrest, the applicant moved out of the family home. He was charged with the offences in August 2020 and pleaded guilty on his first appearance at the Crown Court on 27 November 2020. The case was adjourned for a pre-sentence report.
OPUS 2 DIGITAL TRANSCRIPTION
10
The applicant had no previous convictons. He was in well-paid employment as a software engineer. He was very frank with the probation officer, admitting that he had gained sexual gratification from the images he was viewing. Since his arrest he had sought counselling with a sexual therapist at his own expense, although this had of necessity taken place online owing to the pandemic. He said he had gained a deeper understanding of his thoughts, feelings and behaviour. He believed he had been seeking out more extreme images for sexual gratification to the extent that he had become addicted. He had also been talking with adult females online. This was how he came to the attention of the police; the last female with whom he had contact had been arrested and information concerning the applicant was found on her computer.
11
He said he had now thought a great deal about how his own children would feel if put in the position of the children in these images. His two youngest children were both of a similar age to the children in the images. Despite the nature of the offending, the safeguarding authorities were and are satisfied that his own children were and are not at risk from the applicant and he had continued to have regular contact with them. His partner held a responsible teaching post. There was concern that if he were to lose his liberty and his employment, the mortgage on the family home could not be paid. The applicant's mother had died from cancer only weeks before he was sentenced. His father was elderly and infirm, living in Norfolk, and relied to an extent on the applicant as well as other family members.
12
The author of the pre-sentence report, who we note is a very senior probation officer with long experience in such cases, was confident that the current risk posed by the applicant could be managed in the community. Immediate imprisonment would mean the loss of the applicant's employment and income. His own accommodation would be put at risk. There would also be a serious impact on his partner and his children. The recommendation in the report was for a community order with a rehabilitation activity requirement and, if appropriate, an unpaid work requirement as well. The applicant was assessed as unsuitable for the accredited Horizon programme, apparently because he was assessed as being at low risk of future sexual offending behaviour.
13
In his sentencing remarks the judge began by saying that he had to deal with the applicant for possession of 1,081 indecent images. It seems that the judge must have thought, erroneously, that the 581 images charged in Count 1 were in addition to the images in Counts 2, 3, and 4, whereas, as we have explained, in fact they overlapped completely. Regrettably, this had not been made clear when the case was opened. The judge said that the Category A images we have described were some of the most heinous that the court had ever had to deal with. Under the relevant Sentencing Council Guideline, the starting point for downloading the Category A images was 12 months' custody with a range up to three years. The judge identified the following six aggravating factors set out in the Guideline: first, the age and vulnerability of the children depicted; second, discernible pain or distress suffered by a child was depicted; third, the period over which the images were possessed, in this case ten years; fourth, the high volume of images possessed; fifth, the fact that the collection included moving images; sixth, the large number of different victims. The judge acknowledged that the applicant had no previous convictions and had therefore never served a custodial sentence.
14
The judge said that in view of the extreme nature of the Category A images, aggravated by the other images for which concurrent sentences would be imposed, the starting point after a trial would be in the region of 27 months' imprisonment. He reduced that to 24 months having regard to the impact of the pandemic. He allowed credit of 25 per cent for the applicant's guilty pleas tendered at the first hearing in the Crown Court. The custodial term was therefore 18 months' imprisonment.
15
The judge then considered the question of suspending that sentence. He said:
"I am afraid, bearing in mind the aggravating features I have outlined and particularly the nature of the images, it seems to me that appropriate punishment can only be achieved by immediate custody in this case. So, the sentence is one of 18 months' imprisonment."
16
On behalf of the applicant, Mr Heckle submits, first, that the judge's starting point of 27 months' imprisonment was simply too high. It failed to reflect the applicant's extensive personal mitigation which was detailed in the pre-sentence report. Second, Mr Heckle submits that the judge failed to give any or sufficient weight to the factors for as well as against imposing a suspended sentence, as he was required to do in accordance with the Sentencing Council Guideline on the imposition of community and custodial sentences.
17
Looking at the table of factors for and against suspension in that Guideline, Mr Heckle submits that all three factors in favour of suspension were made out: there was a realistic prospect of rehabilitation; there was strong personal mitigation; immediate custody would result in significant harmful impact on others. On the other side of the equation, Mr Heckle submits the applicant did not present a risk or danger to the public; there was no history of poor compliance with court orders. The only factor against suspension, and this was the basis of the judge's decision, was that appropriate punishment could in his view only be achieved by immediate custody.
18
Regrettably, the judge was not provided with as much information as we now have in relation to the impact of immediate custody on the applicant's partner and, in particular, upon their three children, two of whom are under the age of seven. Mr Heckle tells us that it was only after the applicant had been sentenced that his partner contacted his solicitors. Because of the nature of her employment and senior role in education, she had been unsure whether she could support the applicant publicly, but now bitterly regretted not doing so. In his oral submissions Mr Heckle explained that he had asked before the sentencing hearing whether the appellant’s partner would be able to provide supportive testimony in writing. She, understandably in view of her position, had taken legal advice from a civil practitioner and, we think probably erroneously, had been advised that it was not appropriate for her to get involved in any way. The result was that through no fault of the applicant or his solicitor HHJ Thompson was deprived of the very important material which is now available to us.
19
That material is contained in an email from the applicant's partner to the court dated 10 January 2021 in which she explains compellingly and in harrowing detail the devastating impact of this custodial sentence on the family over the weeks the appellant has been in custody. She is naturally appalled by what the applicant has done, acknowledging that she has lost her life partner for ever and possibly the capacity ever to trust any man again. Her greatest concern though is for the emotional impact on the children of separation from their father, with whom they have a very good and close relationship, and the financial impact of his imprisonment on the family with the very real risk that they might lose their home when deprived of his financial contribution. She is concerned that whilst in prison he cannot access the support and therapy she believes he needs if he is to be the best father he can be in the longer term. Although he had been living apart from the children during the period of 15 months between his arrest and sentence, the children had continued to enjoy very regular contact with him, several times a week. The two younger children have been devastated by and are uncomprehending of the cessation of that contact.
20
It was this email from the applicant's partner that led the Registrar to refer the application for leave directly to the full court to consider this updated information in the light of the suspended sentence Guideline.
21
We have given the most anxious consideration to all these submissions. The judge was quite right to regard these as very serious offences of their kind in view of the appalling and extreme nature of some of the child images and the long period over which the offending continued. We think, however, that the judge gave insufficient weight to the applicant's personal mitigation in taking a starting point of 27 months. Looking at the Guideline for indecent images, there were three mitigating factors, only one of which the judge alluded to in his sentencing remarks: the applicant's good character. In addition, his genuine remorse was a mitigating factor demonstrated by how frank and open he had been with the probation officer. It was also a mitigating factor that he had already taken steps to address his offending behaviour by engaging voluntarily in appropriate counselling. It should be noted that the indecent images Guideline says in terms that where there is a sufficient prospect of rehabilitation a community order with a sex offender treatment programme requirement can be a proper alternative to a short or moderate length custodial sentence.
22
Turning to the Guideline on the imposition of custodial sentences, the judge did not identify and acknowledge in his sentencing remarks that all three of the factors indicating that suspension might be appropriate were present. There was a realistic prospect of rehabilitation. There was strong personal mitigation. Immediate custody would result in significant harmful impact upon others. The strength of these factors, and particularly the last, would not have been as apparent to the judge as it is now to this court with the benefit of the information we have from the applicant's partner. That information was not before the judge through no fault of the applicant or his solicitors, as we have already emphasised.
23
Of the three factors in the Guideline indicating that suspension would not be appropriate, two factors were absent. In the light of the pre-sentence report, the applicant did not present a risk or danger to the public, nor was there any history of poor compliance with court orders. In respect of the third factor, however, the judge concluded that appropriate punishment could only be achieved by immediate custody.
24
The Guideline emphasises that the factors for and against suspension should be “weighed” in considering what is the proper course to take. It is a sensitive balancing exercise. It is obviously not simply a question of numbers or of ticking boxes. It may often be the case that the offending is so serious that appropriate punishment can only be achieved by immediate custody, even if all the factors in favour of suspension are present and none of the other factors against suspension. However, this court has emphasised on several occasions the importance of identifying and weighing the competing factors. The judge may have done so in this case, but he did not make it apparent in his sentencing remarks. Had he been provided with the information we now have, which greatly strengthens the force of the three factors in favour of suspension, we think he would not so readily have reached the conclusion he did in this difficult case, and may not have reached that decision at all.
25
We have to look at the current position. The applicant has now served seven weeks in custody, the equivalent of a three-month sentence. That sentence has been harsher for him because, sadly, he contracted Covid and was in isolation for a significant period.
The immediate punitive impact of the sentence of imprisonment has therefore already been felt. Reviewing the exercise of weighing the factors for and against suspension on the information now available, we think that justice can best be done by suspending the remainder of the sentence. For the reasons already explained, we think the term was too long in any event and failed adequately to reflect the applicant's personal mitigation. In reducing the length of the term to be suspended, we also bear in mind that he has served the equivalent of three months.
26
For those reasons, we shall reduce the term of imprisonment from 18 months to 12 months and order that the sentence be suspended for a period of two years. Following the recommendation in the pre-sentence report, there will be a rehabilitation activity requirement for up to 20 days. Had it not been for the fact that the applicant has already served the equivalent of a three-month sentence, we would also have imposed an unpaid work requirement, but in the circumstances we do not think that it would be just and proportionate to do so.
27
We therefore grant leave. We allow the appeal. We quash the sentences of 18 months' imprisonment on Counts 1 and 2 and we substitute concurrent sentences of 12 months' imprisonment on those counts, suspended for a period of two years, with a rehabilitation activity requirement of up to 20 days. We do not interfere with the length of the sentences on the remaining counts, which remain concurrent with the sentences on Counts 1 and 2, but those other sentences will also be suspended on the same terms. All other orders remain in place.
____________
CERTIFICATE
Opus 2 International Limited hereby certifies that the above is an accurate and complete record of the Judgment or part thereof.
Transcribed by
Opus 2 International Limited
Official Court Reporters and Audio Transcribers
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This transcript has been approved by the Judge. | ```yaml
citation: '[2021] EWCA Crim 266'
date: '2021-02-05'
judges:
- LADY JUSTICE ANDREWS
- MR JUSTICE SPENCER
- HIS HONOUR JUDGE AUBREY QC
``` |
You are extracting information from the court judgments.
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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}
======
| Neutral Citation Number:
[2013] EWCA Crim 1104
Case No:
201202865 C4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT TRURO
HIS HONOUR JUDGE ELWEN
T20100035
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
03/07/2013
Before :
LORD JUSTICE JACKSON
MR JUSTICE WYN WILLIAMS
and
THE RECORDER OF PRESTON, HIS HONOUR JUDGE RUSSELL QC
- - - - - - - - - - - - - - - - - - - - -
Between:
Regina
Respondent
- and -
JACK FREDERICK LEONARD HARVEY
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr William Boyce QC
and
Ms Joanna Martin
(instructed by
Smith Leaning Solicitors
) for the
Appellant
Mr Martin Evans
and
Miss Kate Brunner
(instructed by
The Crown Prosecution Service
) for the
Respondent
Hearing date: Thursday 23
rd
May 2013
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Jackson:
1.
This judgment is in ten parts, namely:
Part 1. Introduction,
Part 2. The facts,
Part 3. The confiscation proceedings,
Part 4. The appeal to the Court of Appeal,
Part 5. The law,
Part 6. The first ground of appeal: VAT,
Part 7. The second ground of appeal: restoration,
Part 8. The third ground of appeal: method of assessment,
Part 9. The fourth ground of appeal: term in default,
Part 10. Conclusion.
Part 1. Introduction
2.
This is an appeal against a confiscation order in a case to which the “criminal lifestyle” provisions apply. The appellant ran a plant hire and contracting business, which made extensive use of stolen plant. The principal issues are the basis upon which the appellant’s benefit should be assessed, how VAT should be dealt with and whether credit should be given for the residual value of the plant ultimately restored to the true owners.
3.
In this judgment we shall refer to the
Proceeds of Crime Act 2002
as “POCA”.
4.
Section 6 of POCA sets out how the Crown Court must proceed in confiscation proceedings:
“6. Making of order
…
(4) The court must proceed as follows —
(a) it must decide whether the defendant has a criminal lifestyle;
(b) if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct;
(c) if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct.
(5) If the court decides under subsection (4) (b) or (c) that the defendant has benefited from the conduct referred to it must —
(a) decide the recoverable amount, and
(b) make an order (a confiscation order) requiring him to pay that amount.
(6) But the court must treat the duty in subsection (5) as a power if it believes that any victim of the conduct has at any time started or intends to start proceedings against the defendant in respect of loss, injury or damage sustained in connection with the conduct.
(7) The court must decide any question arising under subsection (4) or (5) on a balance of probabilities.”
5.
Section 7 of POCA provides:
“7. Recoverable amount
(1) The recoverable amount for the purposes of section 6 is an amount equal to the defendant’s benefit from the conduct concerned.
(2) But if the defendant shows that the available amount is less than that benefit the recoverable amount is—
(a) the available amount, or
(b) a nominal amount, if the available amount is nil.
(3) But if section 6 (6) applies the recoverable amount is such amount as —
(a) the court believes is just, but
(b) does not exceed the amount found under subsection (1) or (2) (as the case may be).”
6.
Section 10 of POCA provides:
“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.”
7.
Section 16 of POCA provides that the first step in confiscation proceedings is for the prosecutor to serve a statement setting out the information relied upon.
8.
Section 75 of POCA defines what is meant in
the Act
by “criminal lifestyle”. There is no dispute in this case that the appellant falls within that definition.
9.
Section 76 of POCA provides:
“76. Conduct and benefit
(1) Criminal conduct is conduct which—
(a) constitutes an offence in England and Wales, or
(b) would constitute such an offence if it occurred in England and Wales.
(2) General criminal conduct of the defendant is all his criminal conduct, and it is immaterial—
(a) whether conduct occurred before or after the passing of
this Act
;
(b) whether property constituting a benefit from conduct was obtained before or after the passing of
this Act
.
(3) Particular criminal conduct of the defendant is all his criminal conduct which falls within the following paragraphs—
(a) conduct which constitutes the offence or offences concerned;
(b) conduct which constitutes offences of which he was convicted in the same proceedings as those in which he was convicted of the offence or offences concerned;
(c) conduct which constitutes offences which the court will be taking into consideration in deciding his sentence for the offence or offences concerned.
(4) A person benefits from conduct if he obtains property as a result of or in connection with the conduct.
(5) If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage.
(6) References to property or a pecuniary advantage obtained in connection with conduct include references to property or a pecuniary advantage obtained both in that connection and some other.
(7) If a person benefits from conduct his benefit is the value of the property obtained.”
10.
Sections 79 and 80 of POCA contained detailed provisions as to the valuation of property obtained by the defendant. Section 80 (2) (a) requires the value of property to be adjusted to take account of later changes in the value of money.
11.
Article 1 of the First Protocol to the European Convention on Human Rights is generally referred to as “A1P1”. A1P1 provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
12.
In some of the authorities which we shall review the offender is appellant and in others he is respondent. For simplicity we shall generally refer to the offender as “the defendant” or “D”. Where there is more than one defendant, we shall refer to each by the initial letter of his surname. We shall use the abbreviation “V” for victim.
13.
Francis Clark LLP are a firm of Chartered Accountants practising in Truro. Their former name was Winter Rule. For simplicity we shall refer to that firm at all times as “Francis Clark”.
14.
After these introductory remarks we must now turn to the facts.
Part 2. The facts
15.
In 1972 the appellant set up a company which he owned and controlled called Jack Harvey Ltd (“JHL”). The appellant and his family have always lived at Truro in Cornwall. The company was based there. The business of the company was plant hiring and contracting. Over the years the company built up a large stock of plant and machinery. These included rollers, diggers, trailers, low loaders, dumper lorries and planers. Many members of the appellant’s family were involved in the business.
16.
JHL hired out plant to customers. Sometimes JHL supplied drivers to operate the plant. JHL also undertook contracting work using its own plant and drivers. One major customer of JHL was Cornwall County Council. JHL hired out many large machines to the council.
17.
One profitable activity which JHL undertook was road planing. This means removing the top surface of roads with a planer and converting the debris into reusable aggregate, known as “planings”. JHL did much road planing for the council. JHL then sold the planings to farmers or other contractors in the area.
18.
Francis Clark acted as accountants and auditors for JHL. They prepared the company’s annual accounts on the basis of invoices, records and other information provided by the appellant and his family.
19.
JHL regularly acquired or sold plant in accordance with business decisions made by the appellant. Unfortunately the appellant is not an honest man. Many items of plant which JHL acquired were stolen property and the appellant knew this perfectly well.
20.
The appellant’s criminal activities came to the attention of the police in 2008 and 2009. During this period the appellant also set fire to several items of plant belonging to rival contractors. The appellant was identified as the culprit. The appellant was arrested and charged with arson. On 6
th
May 2009 the police raided and searched the appellant’s property at Truro. They found 91 items of plant ostensibly belonging to JHL. No fewer than 39 of these items of plant turned out to be stolen.
21.
The police arranged for the stolen items of plant to be valued and then returned to their true owners. In some cases the stolen plant was sold at auction and the proceeds of sale went to the original owners or their insurers, as appropriate. The valuation figures are as follows:
i)
Total value of the items of plant on the various dates when they were stolen: £314,700.
ii)
Total value of the items of plant when recovered by the police: £159,800.
22.
In due course the appellant was prosecuted for offences of arson and handling stolen property. The appellant pleaded not guilty to the arson offences but guilty to nine counts of handling stolen property. The other thirty counts of handling stolen property were ordered to lie on the file. The appellant stood trial at Truro Crown Court in June 2010. He was convicted on all counts of arson. In due course the appellant received a total sentence of 13 years 3 months imprisonment for all the offences of arson and handling stolen goods. On 11
th
February 2011 this court allowed the appellant’s appeal against sentence and reduced the total sentence to 9 years 6 months imprisonment.
23.
Very properly the Crown Prosecution Service asked Truro Crown Court to proceed under section 6 of POCA. This request set in motion the confiscation proceedings.
Part 3. The confiscation proceedings.
24.
On 11th February 2011 the Crown Prosecution Service served on the appellant a Statement of Information pursuant to section 16 of POCA prepared by the South West Regional Asset Recovery Team. This asserted that the appellant had a “criminal lifestyle”, that all assets of JHL should be treated as the appellant’s property and that the following comprised the appellant’s benefit for the purposes of POCA:
i)
The thirty nine stolen items of plant.
ii)
All monies received and banked by JHL during the six years since 11
th
November 2003. That date was “the relevant day” for the purposes of section 10 of POCA.
25.
There followed extensive exchanges of information between the parties. The appellant served three reports prepared by Mr David Winch, a chartered accountant. Mr Winch was instructed to investigate the appellant’s financial affairs and to give expert evidence on his behalf.
26.
The confiscation proceedings came on for hearing before his Honour Judge Elwen in Truro Crown Court in March 2012. The appellant conceded that the “criminal lifestyle” provisions applied to his case. He also conceded that the corporate veil should be pierced, so that JHL’s property should be treated as belonging to himself. When the appellant gave evidence, he admitted knowing the truth about the nine stolen items of plant referred to in the counts to which he had pleaded guilty. He denied knowing that the other thirty items of plant were stolen. The appellant also asserted that almost the entirety of JHL’s turnover was legitimate and untainted by the stolen property. Two of the appellant’s daughters and a friend called Mr Wood gave supporting evidence. Mr Winch gave expert evidence, suggesting various ways in which the turnover referable to stolen plant could be identified. Mr Winch expressed the view that at most £583,886 of the company’s turnover was derived from stolen plant.
27.
The judge delivered his reserved judgment on 16
th
April 2012. We would summarise the judge’s conclusions as follows:
i)
The appellant, his daughters and Mr Wood had given untruthful evidence. The judge rejected this evidence in its entirety.
ii)
The appellant knew that all thirty nine items of plant identified in the original indictment were stolen.
iii)
The value of the thirty nine items of plant when stolen, totalling £314,700, constituted a benefit of the appellant.
iv)
Mr Winch’s evidence was of no assistance because it was based upon information and documents provided by the appellant. It was the appellant’s practice to forge documents when advantageous to do so.
v)
The total known receipts of JHL in the period since 11
th
November 2003 (“the relevant period”) were £5,159,880. This comprised (a) sums paid into JHL’s bank accounts and (b) £94,400 cash received for sale of planings. The appellant admitted that he had received this cash but not disclosed it to Francis Clark. His motive was to ensure that this sum did not appear in the company’s accounts.
vi)
In addition to the thirty nine items of stolen plant found by the police on 6
th
May 2009, other pieces of stolen plant formed part of the appellant’s fleet during the relevant period.
vii)
In addition to the £94,400 cash receipts which the appellant admitted, there was significant other “off the book” trading during the relevant period.
viii)
During the relevant period JHL also undertook legitimate trading using plant which it had acquired honestly.
ix)
Doing the best that he could on the available evidence, the judge assessed the receipts derived from the stolen plant as 38% of the known total receipts of £5,159,880. This amounted to £1,960,754.40.
x)
Accordingly the judge assessed the appellant’s benefit from his general criminal conduct as £314,700 plus £1,960,754.40, which amounted to £2,275,454.40.
28.
The assessed amount of the appellant’s benefit was substantially less than his available assets. Accordingly the court made a confiscation order in the sum of £2,275,454.40.
29.
The appellant is aggrieved by the amount of the confiscation order. Accordingly he appeals to the Court of Appeal.
Part 4. The appeal to the Court of Appeal
30.
The appellant appeals to the Court of Appeal on four grounds which, as reformulated during the hearing of the appeal, are as follows:
i)
The judge erred in failing to deduct from the turnover figure the amount of VAT received by the appellant from customers.
ii)
The judge failed to give credit for the fact that the stolen items were restored to their original owners.
iii)
The judge erred in the basis of assessment which he adopted.
iv)
The term of imprisonment in default is too long.
31.
Mr William Boyce QC, who appears for the appellant leading Ms Joanna Martin, adopted the following abbreviations for his four grounds of appeal: VAT, restoration, basis of assessment and term in default. We shall adopt those same abbreviations.
32.
The third ground of appeal mutated somewhat during the course of argument. Mr Boyce focused most of his argument in relation to this ground on the question whether the judge should have deducted from the turnover figure sums received by JHL from sales of plant.
33.
Mr Martin Evans, who appears for the prosecution leading Ms Kate Brunner, resists the first three grounds of appeal. He makes no submissions about the fourth ground of appeal, rightly observing this is a matter for the court.
34.
In relation to the assessment of benefit, Mr Evans submits that, if anything, the judge was unduly generous to the appellant. The use of stolen property must have enabled the appellant to build up his business and thus attract customers. Accordingly, it may be said that all or most of JHL’s turnover was tainted. Mr Evans puts forward this argument to support the judge’s assessment of 38%, not in attempt to increase that assessment.
35.
Mr Evans also points out that the judge did not increase his assessment of benefit to take account of changes in the value of money, as required by section 80 (2) (a) of POCA. This was because the prosecution did not draw that provision to the attention of the judge. The prosecution have not sought to appeal the assessment on this ground. Mr Evans accepts that it is now too late to take the point.
36.
Neither Mr Boyce nor Mr Evans appeared in the court below.
37.
Having outlined the cases of both parties in this appeal, we must now turn to the law.
Part 5. The law
38.
The law in relation to confiscation has recently undergone a seismic shift. This is because of the Supreme Court’s decision in
R v Waya
[2012] UKSC 51
,
[2013] 1 AC 294
.
39.
Both parties have placed reliance on a number of authorities which pre-date
Waya
. The issue therefore arises to what extent those authorities are still good law. In order to address this issue, we shall review the relevant cases in chronological order and then analyse the impact of
Waya
on earlier decisions.
40.
In
R v Smith
[2001] UKHL 68
,
[2002] 1 WLR 54
D imported 1.25 million cigarettes without paying the excise duty due of £130,666. Customs officers subsequently seized the cigarettes. The Crown Court held that the defendant benefited to the extent of £185,666, comprising the excise duty evaded plus the cost of the boat used for smuggling. The Court of Appeal held that in the circumstances D had not derived any pecuniary advantage by evading the payment of excise duty; accordingly the assessment of benefit should be reduced by £130,666. The House of Lords allowed the prosecution’s appeal. Lord Rodger, with whom the other four members of the Appellate Committee agreed, reasoned as follows:
i)
By sailing past the customs houses at Immingham and Hull without stopping, D had evaded payment of the excise duty which was due.
ii)
D remained liable to pay excise duty on the cigarettes, because he had imported them into the UK. D’s liability to pay excise duty was unaffected by the fact that the goods were subsequently removed from him by the customs officers.
iii)
Accordingly D had obtained a pecuniary advantage by failing to pay excise duty of £130,666. Under
section 71 (5)
of the
Criminal Justice Act 1988
(which is in substance re-enacted in section 76 (5) of POCA) D is to be treated as having obtained an equivalent sum of money.
41.
At paragraph 23 Lord Rodger said this:
“23. These provisions show that, when considering the measure of the benefit obtained by an offender in terms of
section 71 (4)
, the court is concerned simply with the value of the property to him at the time when he obtained it or, if it is greater, at the material time. In particular, where the offender has property representing in his hands the property which he obtained, the value to be considered is the value of the substitute property "but disregarding any charging order". Except, therefore, where the actual property obtained by the offender has subsequently increased in value, the court is simply concerned with its value to the offender "when he obtained it". It therefore makes no difference if, after he obtains it, the property is destroyed or damaged in a fire or is seized by customs officers: for confiscation order purposes the relevant value is still the value of the property to the offender when he obtained it. Subsequent events are to be ignored, in just the same way as any charging order is to be ignored under subsection (6). Such a scheme has the merit of simplicity. If in some circumstances it can operate in a penal or even a draconian manner, then that may not be out of place in a scheme for stripping criminals of the benefits of their crimes. That is a matter for the judgment of the legislature, which has adopted a similar approach in enacting legislation for the confiscation of the proceeds of drug trafficking. In that context the courts have consistently held that "payments" received in connection with drug trafficking mean gross payments rather than net profit and that the "proceeds" of drug trafficking mean the gross sale proceeds, rather than the net profit after deducting the cost of the drug trafficking operation.”
42.
In
R v Singh
[2008] EWCA Crim 243
D, a sole trader operating in a market stall, pleaded guilty to seven counts of selling counterfeit goods. In confiscation proceedings it was common ground that the “criminal lifestyle” provisions applied. The judge held that all sums which D had paid into his bank and building society accounts constituted benefit. The judge also held that all sums which D had paid out on purchases (mostly recorded “paid in cash”) formed part of D’s benefit. The Court of Appeal upheld that decision. At paragraph 25 Royce J summarised the conclusions of the Court of Appeal as follows:
“1. The judge carefully considered the respective arguments and was fully entitled to conclude that the assumptions should remain in place and that no injustice arose as a result of such conclusion. In relation to that he was entitled to expect clear and cogent evidence on behalf the appellant to displace those assumptions. He did not have before him clear and cogent evidence so to do.
2. He had before him manifestly dishonest evidence from the appellant, who in producing books for the proceedings must at that stage have been determined to deceive the court. He was entirely lacking in credibility.
3. He had highly suspicions invoices, which he was not obliged to take at face value.
4. He rightly concluded that there was other cash trading of goods with no records whatsoever. That may have been very substantial. Its extent was impossible to determine because of the dishonest nature of the appellant's record keeping.
5. If, and in so far as there had been legitimate trading, it was impossible to determine its percentage and that was because of the appellant's determination in spite of regular brushes with trading standards and the Revenue, to keep no accounts, so as to facilitate his criminal life-style. The Judge was not under a duty to speculate and pluck some figure from the air.”
43.
In
R v May
[2008] UKHL 28
,
[2008] 1 AC 1028
D and others pleaded guilty to conspiring to cheat the Customs and Excise by wrongfully withholding and wrongfully reclaiming VAT. The judge noted that the loss to the Customs and Excise was £3,264,277 and made a confiscation order against D in that sum. The judge held that where several defendants were jointly responsible for a fraud and jointly acquired the proceeds of the fraud, each defendant should be treated as having obtained the full amount of the proceeds. There was no need to make an apportionment between the different defendants. Both the Court of Appeal and the House of Lords upheld this approach.
44.
In the House of Lords Lord Bingham delivered a single speech on behalf of all members of the Appellate Committee. At the end of his speech Lord Bingham set out the following guidance in paragraph 48, which was headed “Endnote”:
“(1) The legislation is intended to deprive defendants of the benefit they have gained from relevant criminal conduct, whether or not they have retained such benefit, within the limits of their available means. It does not provide for confiscation in the sense understood by schoolchildren and others, but nor does it operate by way of fine. The benefit gained is the total value of the property or advantage obtained, not the defendant's net profit after deduction of expenses or any amounts payable to co-conspirators.
(2) The court should proceed by asking the three questions posed above: (i) Has the defendant (D) benefited from relevant criminal conduct? (ii) If so, what is the value of the benefit D has so obtained? (iii) What sum is recoverable from D? Where issues of criminal life style arise the questions must be modified. These are separate questions calling for separate answers, and the questions and answers must not be elided.
(3) In addressing these questions the court must first establish the facts as best it can on the material available, relying as appropriate on the statutory assumptions. In very many cases the factual findings made will be decisive.
(4) In addressing the questions the court should focus very closely on the language of the statutory provision in question in the context of the statute and in the light of any statutory definition. The language used is not arcane or obscure and any judicial gloss or exegesis should be viewed with caution. Guidance should ordinarily be sought in the statutory language rather than in the proliferating case law.
(5) In determining, under
the 2002 Act
, whether D has obtained property or a pecuniary advantage and, if so, the value of any property or advantage so obtained, the court should (subject to any relevant statutory definition) apply ordinary common law principles to the facts as found. The exercise of this jurisdiction involves no departure from familiar rules governing entitlement and ownership. While the answering of the third question calls for inquiry into the financial resources of D at the date of the determination, the answering of the first two questions plainly calls for a historical inquiry into past transactions.
(6) 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. He ordinarily obtains a pecuniary advantage if (among other things) he evades a liability to which he is personally subject. Mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale, are unlikely to be found to have obtained that property. It may be otherwise with money launderers.”
45.
R v Morgan and Bygrave
[2008] EWCA Crim 1323
, [2009] 1 Cr App R (S) concerned two defendants who paid compensation to their victims. M cheated V out of £280,000. After adjusting for inflation, M’s benefit was £306,913. Before the confiscation hearing M repaid most of this sum to V, leaving only £51,967 outstanding. The judge disregarded the repayments that M had made and assessed M’s benefit at £306,913. He made a confiscation order in the sum of £106,259, as that was the value of M’s available assets.
46.
B stole £12,768 from V. She arrived at court for the sentencing and confiscation hearing with sufficient funds to repay V the full amount. The judge made a confiscation order in the sum of £12,768. V subsequently said that it would sue B for the amount of V’s loss.
47.
The appeals of M and B were listed for hearing together. The Court of Appeal dismissed M’s appeal. The court allowed B’s appeal to the extent of varying the confiscation order by attaching to it a direction that the whole sum confiscated be paid to V. The court noted that there was an anomaly in the legislation, namely that D was worse off if he compensated V before the confiscation proceedings were brought.
48.
Hughes LJ, delivering the judgment of the court, added that it was important that the extent of the anomaly should not be overstated. The confiscation jurisdiction is deliberately draconian. One not infrequent consequence is that the amount of a confiscation order is higher than D’s profit from his crime. Hughes LJ went on to point out that in cases where confiscation proceedings were oppressive, the court could order a stay for abuse of process: see paragraphs 26-35. The Court of Appeal did not regard the confiscation proceedings in M’s case as oppressive.
49.
In
R v Xu and Xu
[2008] EWCA Crim 2372
Ds employed three illegal immigrants in their restaurant and were convicted of facilitating a breach of immigration law contrary to
section 25 (1)
of the
Immigration Act 1971
. In confiscation proceedings the recorder assessed Ds’ benefit as the entire amount of their receipts during the relevant period. The Court of Appeal allowed Ds’ appeal. The court noted that the three illegal immigrants constituted a quarter of the workforce of the restaurant. On that basis the Court of Appeal assessed Ds’ benefit as one quarter of their receipts from the restaurant during the relevant period.
50.
In
R v Baden Lowe
[2009] EWCA Crim 194
D, the director of CPSM, a company which was about to be wound up, fraudulently caused the company to transfer land to Penwood, another company of which D was director. Fortunately no harm was done. The liquidator of CPSM recovered the land and sold it some six months before D pleaded guilty in the Crown Court. The judge held in confiscation proceedings that D had benefited to the extent of the value of the land and made a confiscation order in the sum of £41,920, which was the amount of D’s realisable assets. The judge regarded it as irrelevant that V had been fully compensated.
51.
In
R v Del Basso and Goodwin
[2010] EWCA Crim 1119
Ds pleaded guilty to failing to comply with an enforcement notice contrary to
section 179
of the
Town and Country Planning Act 1990
. The offence was using an area of land as a car park without planning permission. The defendants ploughed the profits from the car park into a local football club which they ran. The judge held that the “criminal lifestyle” provisions applied. The judge further held that all receipts from the car park, during the period before a limited company took over the business, were a benefit of Ds. These amounted to £1,881,221. The judge made a confiscation order against one defendant in the sum of £760,000, which was the amount of his available assets. He made a nil confiscation order against the other defendant, who was bankrupt.
52.
The Court of Appeal upheld the judge’s decision. Leveson LJ, giving the judgment of the court, noted Ds’ argument that receipts from parking were used for paying expenses (including VAT and national insurance) and for supporting the football club: see paragraph 35. He went on to hold that these facts were irrelevant to the assessment of benefit. The court had to focus on the property coming to the offenders, not what happened to it subsequently: see paragraph 38.
53.
In
James and Blackburn v R
[2011] EWCA Crim 2991
Ds were involved in the importation and processing of large quantities of tobacco without paying excise duty. This was not a case to which the “criminal lifestyle” provisions applied. The tobacco was processed at a factory in Stevenage, which B managed. The tobacco was then packaged and stored in a garage next to J’s home. The trial judge made substantial confiscation orders, which the Court of Appeal quashed. Hooper LJ, delivering the first part of the judgment of the court, said that neither J nor B had incurred a liability to pay excise duty. B was effectively the salaried manager of the factory with no proprietary interest in the tobacco which passed through it. Edwards-Stuart J, delivering the second part of the judgment of the court, said that expenses which Ds incurred in buying equipment and materials for the purpose of the venture were not incurred “in connection with” the criminal conduct. Accordingly they were not caught by POCA. Likewise payments of rent for the factory building were not incurred “in connection with” the criminal conduct.
54.
In
R v Ahmad
[2012] EWCA Crim 391
, [2012] 1WLR 2335 Ds were the directors and shareholders of a company which was involved in a VAT carousel fraud. There were 32 circular transactions, which enabled certain Irish companies fraudulently to reclaim £12,662,822 VAT. The judge held that Ds’ benefit was the total amount which had passed through the company’s bank account during the 32 transactions. After adjusting for inflation this amounted to £92,333,667. The Court of Appeal allowed Ds’ appeal and substituted an assessment of benefit in the sum of £12,662,822, subject to adjustment for inflation. Hooper LJ, giving the judgment of the court, stated that large sums of money put up to “prime the pump” in a carousel fraud did not constitute property obtained in connection with the commission of the offence: see paragraph 31.
55.
We now turn to
R v Waya
[2012] UKSC 51
,
[2013] 1 AC 294
. This is the first case in which the impact of A1P1 on POCA has been fully considered. A panel of nine judges, including the Lord Chief Justice, heard this appeal. In advance of the hearing the court sent a note to the parties indicating that it might consider whether
Smith
was correctly decided.
56.
In
Waya
D purchased a flat for £775,000 using £310,000 of his own money and £465,000 provided by a mortgage lender. D obtained the mortgage by making false statements about his employment record and his earnings. D was convicted of obtaining a money transfer by deception. Fortunately the lender suffered no loss, because the flat increased in value and another lender stepped in to replace the original lender.
57.
By the time of the confiscation proceedings the value of the flat was £1.85 million. This was not a case to which the “criminal lifestyle” provisions applied. The judge made a confiscation order in the sum of £1.54 million. He arrived at this sum by deducting the monies originally put up by D from the current market value of the flat. The Court of Appeal reduced the sum confiscated to £1.11 million, which was 60% of the value of the flat. The Supreme Court by a majority of 9:2 reduced the sum confiscated to £392,400. The judgment of the majority was delivered by Lord Walker JSC and Hughes LJ. In broadest outline, the reasoning of the majority judgment was as follows:
i)
Section 6 (5) (b) of POCA must be read down so as to comply with a A1P1.
ii)
This required that a confiscation order must be proportionate to
the Act
’s purpose.
The Act
’s purpose was to remove from criminals the pecuniary proceeds of their crimes rather than the imposition of fines or deterrence.
iii)
The dishonestly obtained mortgage loan in the present case represented 60% of the purchase price. Therefore the benefit which D obtained from his crime was 60% of the increase in value of the flat. That amounted to £392,400.
iv)
A confiscation order in that sum is a proportionate order to make: see paragraph 70 of the majority judgment.
58.
The majority judgment contained a review of a number of earlier decisions. In paragraphs 17 and 18 the majority approved the decision in
Morgan and Bygrave
. They added that in cases where the confiscation order would be wholly disproportionate, the remedy would be to apply A1P1, rather than to strike out the confiscation proceedings as an abuse of process (as suggested in
Morgan and Bygrave
).
59.
In paragraphs 21, 22 and 26 the majority indicated their agreement with Lord Bingham’s speech in
May
, including his “Endnote”.
60.
In paragraph 25 the majority stated that in a “criminal lifestyle” case the safeguards built into section 10 (6) of POCA should generally save a confiscation order based on the statutory assumptions from being disproportionate.
61.
In paragraph 26 the majority stated that there could not be an accounting exercise whereby D sets off the costs of committing his crime. They accepted that the confiscation order may remove from D more than his net proceeds of crime. They regarded this as consistent with POCA’s objective and as a proportionate means of achieving the objective.
62.
In paragraph 27 the majority stated that the focus of POCA was upon D’s obtained proceeds of crime, whether retained or not. Then in paragraphs 28 and 29 the majority stated an important qualification to the principles set out above. These paragraphs state:
“28. The case of a defendant such as was considered in
Morgan
and
Bygrave
is, however, a different one. To make a confiscation order in his case, when he has restored to the loser any proceeds of crime which he had ever had, is disproportionate. It would not achieve the statutory objective of removing his proceeds of crime but would simply be an additional financial penalty. That it is consistent with the statutory purpose so to hold is moreover demonstrated by the presence of section 6(6). This subsection removes the duty to make a confiscation order, and converts it into a discretionary power, wherever the loser whose property represents the defendant’s proceeds of crime either has brought, or proposes to bring, civil proceedings to recover his loss. It may be that the presence of section 6(6) is capable of explanation simply as a means of avoiding any obstacle to a civil action brought by the loser, which risk would not arise if repayment has already been made. But it would be unfair and capricious, and thus disproportionate, to distinguish between a defendant whose victim was about to sue him and a defendant who had already repaid. If anything, an order that the same sum be paid again by way of confiscation is more disproportionate in the second case than in the first. Unlike the first defendant, the second has not forced his victim to resort to litigation.
29. The principle considered above ought to apply equally to other cases where the benefit obtained by the defendant has been wholly restored to the loser. In such a case a confiscation order which requires him to pay the same sum again does not achieve the object of the legislation of removing from the defendant his proceeds of crime, but amounts simply to a further pecuniary penalty – in any ordinary language a fine. It is for that reason disproportionate. If he obtained other benefit, then an order confiscating that is a different matter.”
63.
In paragraph 33 the majority approved the House of Lords’ decision in
Smith
. They indicated, however, that if HM Revenue and Customs sought double recovery (viz payment of the unpaid excise duty and a confiscation order in the same sum), this would be disproportionate and a breach of A1P1.
64.
Mr David Thomas QC has provided a commentary on
Waya
in the Criminal Law Review at [2013] Crim LR 256-262. Mr Thomas observes that many earlier decisions must now be in question in the light of
Waya
. He comments that the decision in
Del Basso
may be one of the cases which are now open to question. Mr Thomas adds that many of these matters remain to be decided in the future on a case by case basis. Counsel did not refer to this commentary during the hearing. Subsequently, however, we discovered it and invited counsel to send in any written submissions which they may wish to make about the commentary. Both parties duly sent in their written submissions.
65.
We have now considered the reasoning of the majority judgment in
Waya
, Mr Thomas’ commentary on that judgment and counsel’s submissions both at and after the hearing. Our conclusions as to the status of the pre-
Waya
cases discussed above are as follows:
i)
Smith
and
May
are still good law as the Supreme Court has expressly approved them.
ii)
Singh
was correctly decided in the light of
Waya
paragraphs 25 and 26.
iii)
Morgan
is still good law because the Supreme Court has approved it. The only reason why
Morgan
survives is that M had failed to make
full
restoration by the date of the hearing and had not indicated any willingness to make
full
restoration: see paragraph 39 of Hughes LJ’s judgment in
Morgan
. Even so we are bound to say that
Morgan
seems to be a decision which is close to the line, since M had restored to V 81% of the money which M had taken from her.
iv)
Xu and Xu
is still good law as the reasoning of the Court of Appeal seems to be entirely consistent with
Waya
.
v)
Baden Lowe
is probably no longer good law, as this was a case in which there was full restoration of the relevant property to V.
vi)
Del Basso
is another case which is close to the line. This was a “criminal lifestyle” case where the statutory assumptions applied. The Court of Appeal proceeded on the basis that the expenses which Ds incurred in administering the car park and the football club should not be deducted. Thus paragraphs 25 and 26 of
Waya
would seem to suggest that
Del Basso
was correctly decided. On the other hand the final decision does seem excessively harsh and may arguably be characterised as disproportionate.
vii)
James and Blackburn
must still stand as it is consistent with
Waya
.
viii)
Ahmad
would also appear to be consistent with the decision in
Waya
.
66.
Counsel have drawn our attention to three recent Court of Appeal decisions, which post-date
Waya
. In
Axworthy
[2012] EWCA Crim 2889
D made a fraudulent insurance claim, asserting that his mother’s car had been stolen. In fact D had hidden the vehicle overseas. The judge made a confiscation order comprising the value of the car and the costs incurred by the insurers in bringing it back to England. The Court of Appeal reduced the sum confiscated so that it comprised only the repatriation costs.
67.
In
R v Hursthouse
[2013] EWCA Crim 517
D put forward a forged will under which she received the entire estate (rather than half the estate as stipulated in the true will). Although technically D became owner of the entire estate for a period, the truth came to light whilst her solicitors were still dealing with the administration. Thus the deceased’s property was distributed in accordance with the provisions of the genuine will. The Court of Appeal quashed the confiscation order which had been made by the Crown Court judge.
68.
In
R v Jawad
[2013] EWCA Crim 644
D committed a fraud which caused a loss of £64,086 to Lloyd’s Bank. In confiscation proceedings the “criminal lifestyle” provisions were applied. The judge assessed D’s total benefit at £174,827, which included the sum of £64,086 fraudulently obtained from Lloyd’s Bank. The judge made a confiscation order in the sum of £174,827. He also ordered D to pay compensation of £64,086 to Lloyd’s Bank. The Court of Appeal accepted that it was disproportionate for D to pay the amount of the bank’s loss twice over. The court ordered that, if D paid compensation of £64,086 to the bank within 28 days, the confiscation order would be reduced by that amount.
69.
The three cases cited in paragraphs 65-67 above are helpful illustrations of how the principles stated in
Waya
are applied in practice. After this review of the authorities, we must now tackle the grounds of appeal in the present case, beginning with the VAT issue.
Part 6. The first ground of appeal: VAT
70.
Mr Boyce submits that the receipts of JHL included VAT which JHL charged to its customers. JHL paid the VAT to HM Revenue and Customs. Accordingly the judge should have subtracted VAT from the turnover, before he proceeded to assess how much of the turnover was attributable to the appellant’s general criminal conduct.
71.
In relation to this ground of appeal, Francis Clark have provided the following information from their records. During the six year period ending 30
th
November 2009, JHL received £843,827 VAT from its customers in respect of sales and services provided. During the same period, JHL recouped the VAT which it had paid on purchases. In some quarters JHL made payments of VAT to HM Revenue and Customs. In other quarters JHL claimed repayments. After setting off payments made against re-payments received, the bottom line is that out of £843,827 VAT which JHL collected, it paid over £200,745 to HM Revenue and Customs.
72.
The judge dealt with the VAT issue in a ruling during the course of the confiscation hearing. He noted that what JHL obtained from the provision of services and plant to customers was a total sum, including VAT. If the plant in question was stolen, then JHL acquired the whole of that sum “as a result of or in connection with” its criminal conduct within s.76 (4) of POCA. Relying on
Del Basso
, he said that the court should focus on the property coming to JHL not what had happened to it afterwards. The judge distinguished
James and Blackburn
, because in that case the acquisition of property was not the result of or in connection with criminal conduct. The judge also distinguished
Ahmad
, because in that case the court was concerned with set up costs, not with property obtained.
73.
Mr Boyce submits that the judge fell into error. He should have left out of account the £843,827 VAT which JHL received from its customers. This was money which JHL was obliged to pass on to HM Revenue and Customs. JHL did pass that money on, either by paying VAT on its own purchases or by making quarterly payments to HM Revenue and Customs.
74.
In support of his argument Mr Boyce relied upon
section 464
of the
Companies Act 2006
. This defines, “turnover” as “the amount derived from the provision of goods and services falling within the company’s ordinary activities, after deduction of … value added tax”.
75.
Mr Evans resists this ground of appeal, essentially relying upon the judge’s reasoning. He points out that in
Del Basso
the VAT which Ds collected formed part of the total receipts which constituted Ds’ benefit: see paragraph 36.
76.
In addressing this issue, it becomes critical to determine whether
Del Basso
is still good law following the Supreme Court’s decision in
Waya.
For the reasons set out in paragraph 64 (vi) above,
Del Basso
is close to the line. Nevertheless the Court of Appeal’s approach in focusing upon money received, not how it was spent, remains valid: see
Waya
at paragraph 26. On the other hand, when one stands back and looks at all the circumstances of
Del Basso
, it may be said that the final result was disproportionate.
77.
How would
Del Basso
be decided if those same facts recurred after
Waya
?
It is difficult to fault the Court of Appeal’s general approach. The court focused upon monies received by the defendants as a result of their breaches of the enforcement notice. The expenses which Ds has incurred in committing their offences should not be deducted. It may be, however, that a court deciding
Del Basso
today would find some basis for reducing the bottom line figure by reference to A1P1. Whether this speculation is right or wrong, there is nothing in
Waya
which calls into question the manner in which the Court of Appeal in
Del Basso
dealt with VAT.
78.
We therefore regard
Del Basso
as binding authority in relation to the VAT issue and we must apply it. In conducting their business JHL obtained payments from customers to whom they hired out stolen plant or for whom they performed work using stolen plant. The total monies which those customers paid to JHL constituted property which JHL obtained as a result of criminal conduct. JHL then expended those monies in a variety of ways, including payments in respect of VAT, income tax and national insurance. Those monies belonged to JHL until such time as JHL paid them over. JHL did not hold any of those monies on trust for the intended payees. It is repugnant and contrary to the principles stated in
May
paragraph 48 and
Waya
paragraph 26 to carry out an accounting exercise in respect of those monies.
79.
In relation to VAT, the way in which JHL dealt with these monies is significant. JHL expended three quarters of the VAT which it collected upon the purchase of goods and services. In doing so, JHL was using the proceeds of criminal conduct to purchase those goods and services. It would be wrong in principle for the appellant to be given credit in respect of the VAT element of these purchases.
80.
As an alternative to allowing £843,827 in respect of VAT, Mr Boyce submits that the court should allow the lesser sum of £200,745. We do not accept this submission. It would be wrong in principle to carry out an accounting exercise in respect of VAT which JHL collected through the use of stolen property. It would be repugnant to say that the appellant is entitled to credit for one quarter of the VAT because that was accounted for by JHL in its quarterly returns to HM Revenue and Customs.
81.
We agree with the judge that both
James and Blackburn
and
Ahmad
should be distinguished. The expenses in
James and Blackburn
and the circulating funds in
Ahmad
were not property obtained as a result of the criminal conduct. Nor were they sufficiently connected with the criminal conduct.
82.
In the result therefore we dismiss the first ground of appeal and uphold the judge’s decision in respect of VAT.
Part 7. The second ground of appeal: restoration
83.
JHL made use of the stolen items of plant for some years, before the police recovered those items and returned them to the true owners or their insurers.
84.
In view of the fact that the stolen property was ultimately restored, Mr Boyce submits that £314,700 should be deducted from the benefit figure assessed by the judge. The court pointed out during argument that this figure made no allowance for depreciation during the period when JHL was using the stolen property. Mr Boyce accepted this point. He put forward as an alternative the figure of £159,800 as the sum to be deducted. That was the value of the stolen property when recovered by the police.
85.
In support of this ground Mr Boyce relies heavily on the reasoning of the Supreme Court in
Waya
. He draws particular attention to paragraphs 28 and 29 of the majority judgment, which we have set out in Part 5 above. Mr Boyce also relies upon three decisions since
Waya
, namely
Axworthy
,
Hursthouse
and
Jawad
.
86.
We shall deal with these authorities in turn, starting with
Waya
. Paragraphs 28 and 29 of
Waya
make it clear that in cases of total restoration, the property originally obtained should not be treated as “benefit”. These paragraphs do not, however, address the question of partial restoration.
87.
At first blush it may be thought that
Way
a was a case of total restoration. After all the victim in that case was repaid in full. Nevertheless the Supreme Court considered that a confiscation order was required, albeit in the reduced sum of £392,400. This was because (a) the property which D had purchased using the dishonestly obtained mortgage had increased in value and (b) V had not benefited from the increase in value.
88.
Axworthy
is a more straightforward case. The property which D obtained through his crime, namely the motor car, was restored in good condition to V. Accordingly the Court of Appeal held that the value of the car should be excluded from the assessment of D’s benefit. Likewise
Hursthous
e is a straightforward case. There was total restoration to V of the property which D had wrongfully obtained. Accordingly the Court of Appeal quashed the confiscation order.
Jawad
was also a case of total restoration, that being the premise upon which the Court of Appeal reduced the confiscation order. An important feature of
Jawad
is that if D were to make only partial restoration to V, then the original confiscation order in the full sum of £174,827 would stand. There would be no question of
pro rata
reduction: see the judgment of Hughes LJ at paragraph 27.
89.
The present appeal raises a different problem from that which arose in
Waya
,
Axworthy, Hursthouse
or
Jawad
. In the present case the appellant and his company used the stolen property for some years before they were caught. When the police recovered the stolen property, it had depreciated in value from £314,700 to £159,800. Obviously some items of plant depreciated more than others, depending upon the date of the theft and the amount of subsequent use. Overall, however, the position is that the stolen property approximately halved in value during the period of the appellant’s dishonest handling.
90.
In our view, this case is best characterised as one of partial restoration. In
Morgan
both the Crown Court judge and the Court of Appeal held that partial restoration by D did not affect the assessment of the benefit which he obtained: see paragraphs 9, 10 and 36 to 40 of Hughes LJ’s judgment. As noted in Part 5 above, the Supreme Court in
Waya
approved the decision in
Morgan
.
91.
A significant difference between
Waya
and the present case should be noted. In
Waya
the property which D purchased using the dishonestly obtained mortgage was real property (albeit leasehold, not freehold). This increased in value between the date of D’s offence and the date when he was caught. The present case, however, concerns chattels, not real property. The stolen plant in the present case depreciated in value between the date when the appellant acquired it and the date when he was caught.
92.
Upon consideration of the authorities cited, we come to the following conclusion. If:
i)
D obtains chattels as a result of his criminal conduct,
ii)
D uses those chattels for a substantial period, thereby materially reducing their value,
iii)
The chattels are ultimately restored to their true owners,
then the court in assessing D’s benefit should not give credit for the residual value of those chattels.
93.
The court which assesses benefit is required to focus upon the property which D originally obtained. There is nothing in the wording of POCA which requires the court to deduct the residual value of chattels after prolonged use. Nor does A1P1 require that such a deduction be made. If D steals or otherwise unlawfully obtains someone else’s property and uses it for a number of years thereby materially reducing its value, a confiscation order based upon the original value of that property without any deduction is not disproportionate.
94.
We therefore come to the conclusion that the judge in this case was right not to deduct the residual value of the stolen plant after recovery by the police. We reject the second ground of appeal.
Part 8. The third ground of appeal: method of assessment
95.
Mr Boyce began his submissions on this ground with a general attack upon the judge’s approach. He submitted that to take 38% of the total turnover was arbitrary and involved the use of too broad a brush. Mr Boyce did not challenge the judge’s findings of fact. Nevertheless, he asked rhetorically why 38% rather than some other percentage?
96.
Our answer to that rhetorical question is that having regard to the statutory assumptions and his findings of fact, the judge was being generous to the appellant. On the date of the police raid some 42% of the plant at the appellant’s premises was found to be stolen. The judge found that the appellant had been using other stolen plant throughout the relevant period. On the basis of the reasoning in
Xu and Xu
the judge would have been quite entitled to hold that 42% of JHL’s receipts comprised property obtained as a result of criminal conduct. Mr Evans might be right that the court could have taken a higher percentage, but we do not need to go into that aspect.
97.
We therefore reject the general attack on the judge’s approach to assessing benefit.
98.
To be fair to Mr Boyce, he did not dwell for long upon his general attack. He soon focused his submissions under ground 3 on one specific point. This was that the turnover figure for JHL included sums received from sales of plant totalling £578,175. Mr Boyce submitted that all of the plant sold was, or probably was, legitimate. Therefore the sum of £578,175 should have been deducted before the judge applied his chosen percentage of 38%.
99.
In support of this argument Mr Boyce produced a list of plant sales. The sale prices range between £4,112 for the sale of a five ton dumper to £287,500 for the sale of a planer.
100.
We are not persuaded by these submissions. There is no reason to believe that all the plant which JHL sold was legitimate. Much of it was stolen. The judge found that JHL had been using other stolen items of plant in addition to those found on 6
th
May 2009. It is striking that in two cases the purchaser is shown on the list as Mr B.T Wood. He is a man whom the judge found to be a dishonest witness.
101.
Mr Boyce makes the point that there are invoices which attest to the plant sales and the transactions are recorded in the company’s books. In our view this does not alter the position. It was the appellant’s practice to falsify documents when advantageous to do so. The fact that plant sales are recorded in the company’s books casts no light on whether the plant was stolen or legitimate.
102.
Mr Boyce may well be correct in saying that the planer, which is the thirteenth item on the list, was not stolen. That, however, is not an answer to the prosecution case. The judge was perfectly correct to treat the proceeds of plant sales collectively as part of the total receipts of the company. Since the corporate veil was pierced, these were also the receipts of the appellant.
103.
Let us now draw the threads together. In our view the basis of assessment adopted by the judge was a proper one. Furthermore the judge was correct to include the proceeds from plant sales as part of the total receipts of the company and therefore of the appellant. Accordingly we dismiss the third ground of appeal.
Part 9. The fourth ground of appeal: term in default
104.
The judge set the term in default, in the event that the appellant did not pay the sum confiscated, at ten years. Unfortunately the judge was not referred to any of the relevant authorities on this issue.
105.
Mr Boyce now submits that a term of ten years is too long. He relies upon two recent decisions of this court namely
R v Whiteway-Wilkinson
[2012] EWCA Crim 35
and
R v Castillo
[2011] EWCA Crim 3173
. In
Whiteway-Wilkinson
there was confiscation order in the sum of £2.1 million. The Court of Appeal substituted a default term of eight years. In
Castillo
the confiscation order was for £3 million. The Court of Appeal substituted a default term of nine years.
106.
We will not extend this judgment with any detailed analysis of those authorities, even though the judgment in
Castillo
is replete with learning. We accept the thrust of Mr Boyce’s submissions. The purpose of a term in default is not to impose additional punishment, but to secure compliance with the confiscation order.
107.
The present position is that the appellant has paid about £1 million in respect of the confiscation order. We are told that he plans to sell various properties in order to pay off the balance.
108.
In the light of the authorities mentioned above and the circumstances of the present case, we consider that eight years imprisonment is the proper term in default. Accordingly we shall substitute that term.
Part 10. Conclusion
109.
For the reasons set out in Parts 6, 7 and 8 above, we uphold the judge’s assessment of the recoverable amount, namely £2,275,454.40.
110.
We do not grant any further time to pay, even if we have jurisdiction to do so in circumstances where we are upholding the confiscation order made by the Crown Court. We see no reason why interest should not accrue as from the latest date for payment under the judge’s order, namely 16
th
April 2013.
111.
For the reasons set out in Part 9 above, we reduce the term of imprisonment in default from ten years to eight years. To that extent only we allow the appellant’s appeal. | ```yaml
citation: '[2013] EWCA Crim 1104'
date: '2013-07-03'
judges:
- LORD JUSTICE JACKSON
``` |
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 783
2019/01825/B5, 2019/02168/B5, 20190/02170/B5 & 20190/02202/B5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Tuesday 9
th
June 2020
LORD JUSTICE HOLROYDE
MRS JUSTICE CHEEMA-GRUBB DBE
and
THE RECORDER OF LONDON
(
His Honour Judge Lucraft
)
___________________
R E G I N A
- v -
GLODI WABELUA
DEAN ALFORD
MICHAEL KAREMERA
___________________
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)
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 T Moloney QC and Mr N Alexander
appeared on behalf of the Applicant Glodi Wabelua
Mr H Davies QC
appeared on behalf of all the Appellants in relation to the STOP
Miss K Bex QC
appeared on behalf of the Crown
J U D G M E N T
Tuesday 9
th
June 2020
LORD JUSTICE HOLROYDE:
1.
The three appellants were tried in the Crown Court at Inner London on charges of trafficking a person within the UK for exploitation, contrary to section 4(1A)(b) and (5) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. On 11
th
April 2019, at a late stage of the trial, Dean Alford and Michael Karemera each pleaded guilty to three such offences. On 17
th
April 2019, Glodi Wabelua was convicted by the jury of the one offence with which he was charged. On 14
th
May 2019 the trial judge, Her Honour Judge Karu, sentenced each of them to terms of imprisonment: three years six months in Wabelua's case; a total of four years in Alford's case; and a total of five years in Karemera's case. In addition, she made in each case a Slavery and Trafficking Prevention Order ("STPO"), pursuant to section 14 of the Modern Slavery Act 2015. All three now appeal by leave of the single judge against the STPO. In addition, Wabelua renews his applications for leave to appeal against conviction, and for leave to appeal against the length of his prison sentence. We will refer to the appellants by their surnames for convenience only, and intend no disrespect in doing so.
2.
Pursuant to a direction by the single judge, Mr Hugh Davies QC argued the appeal against the STPO on behalf of all appellants, and Ms Bex QC represented the prosecution. Mr Moloney QC and Mr Alexander represented Wabelua in his renewed applications. We express at the outset our gratitude to all counsel for their written and oral submissions. We are particularly grateful to Mr Moloney and Mr Alexander who have been good enough to act pro bono.
3.
In an earlier trial in the Crown Court at Woolwich, Wabelua had pleaded guilty on 30
th
January 2015 to an offence of conspiracy to supply class A drugs, namely heroin and crack cocaine. Alford and Karemera had subsequently been convicted by the jury of that offence. The date of the conspiracy was "on or before 11
th
September 2014". In a nutshell, it was alleged that the appellants and others had played leading roles in a county lines operation which supplied drugs from London to Portsmouth and Folkestone. Those based in London had used mobile phones to advertise the drugs to users, and then despatched couriers to take the drugs to the users.
4.
In this trial, the charges related to the exploitation of vulnerable persons – five children aged 15 or 16, and a young adult with mental health problems – who were used by the appellants to transport the drugs from London to Portsmouth and to supply them to drug users.
5.
The particulars of the offence charged against Wabelua in count 6 of the indictment were that between 16
th
and 27
th
June 2014 he intentionally arranged or facilitated the travel within the United Kingdom of a named youth, with a view to exploitation of him. The youth was only 16 years old when Wabelua, then aged 20, sent him to Portsmouth to supply crack cocaine.
6.
The appellants applied to Mr Recorder (now His Honour Judge) Aaronberg QC to stay the prosecution as an abuse of the process. Initially the grounds on which that application was made included a misconceived argument based on a plea of autrefois convict. That argument was rightly abandoned, but other grounds were pursued in a hearing which lasted for eight days. The Recorder refused the application in a detailed written ruling on 18
th
August 2017.
He noted that in the trial at Woolwich of Alford and Karemera, there had been an agreed fact before the jury that on 29
th
July 2014 Wabelua had been arrested in the company of five males, one of whom was the youth named in count 6 of the present indictment. There was, however, no reference to that youth's age or to the fact that he had been used by Wabelua as a courier on three occasions in June 2014.
7.
In relation to the various grounds relied on by the appellants, the Recorder held:
a.
The charges in the present proceedings were not founded on the same facts, and did not arise out of the same incident, as the charges on the Woolwich indictment. He accepted that in the Woolwich trial the prosecution, knowing that there might in future be charges of human trafficking offences, had avoided adducing evidence relating to the couriers who were the subject of the present charges. He held that the circumstances of the drugs conspiracy had been "carefully circumscribed by the Crown in the Woolwich trial so as to avoid any activity in relation to the present … couriers featuring at all or in any significant way in that trial".
b.
He rejected a submission that the human trafficking charges should have been prosecuted at the same time as the drugs conspiracy. Any prejudice which might be caused to the appellants could be guarded against during the present trial and if necessary in sentencing.
c.
He found that the appellants had at no time been told in terms that they would never under any circumstances be charged with human trafficking offences.
d.
He did not accept that either Karemera or Alford had acted in some way to his detriment, or would be prejudiced if the present trial were to proceed.
e.
Nor did he accept that there was any risk of any form of double jeopardy in sentencing.
f.
He was satisfied that the present trial was in the public interest.
8.
By the time that application had been concluded, there was no time available for the trial to proceed before the Recorder. It was therefore adjourned, and came before Her Honour Judge Karu. An application was made to the judge to re-open the abuse of process application, on the basis that the Recorder had been misinformed by the prosecution about important matters. In a ruling on 27
th
November 2018, the judge held that there had been no relevant change of circumstances and that the Recorder's ruling therefore could not be re-opened.
9.
With that summary of the background, we turn to Wabelua's renewed application for leave to appeal against conviction. Two grounds of appeal are now put forward: first, that the prosecution of the offence of trafficking was an abuse of the process of the court; and secondly, that the judge had erred in refusing to admit a statement of a police officer in which that officer recounted something said to him by the youth named in count 6.
10.
A plea of autrefois convict is only available where the same offence is charged in a second indictment. However, a judge has a discretion – recognised by the House of Lords in
Connelly v DPP
[1964] AC 1254
– to stay proceedings where a second charge arises out of the same or substantially the same set of facts as an earlier charge of which the defendant has been convicted. In
R v Beedie
[1997] 2 Cr App R 167, it was held that this discretion should be exercised in favour of a defendant unless the prosecution establishes that there are special circumstances for not doing so. In that case, the court also accepted a submission that a defendant should not be tried again on the same facts for more serious offences on an ascending scale of gravity.
11.
In arguing that the Recorder should have exercised this discretion in Wabelua's favour, Mr Moloney submits that "the alleged conduct on which both indictments were based was essentially the same conduct". He relies on
R v Phipps
[2005] EWCA Crim 33
, in which it was said that, save in special or exceptional circumstances, the prosecution should not be permitted to bring "a second set of proceedings arising out of the same incident as the first set of proceedings". He also relies on
R v Dwyer
[2012] EWCA Crim 10
, in which it was said that the underlying principle is that the obligation on the prosecutor is to lay all the charges which it wishes to bring arising out of the same incident. Mr Moloney says that reference was made by the prosecution in the Woolwich proceedings to the fact that the appellants had used drug runners who were aged under 18, and that in sentencing for the drugs conspiracy the judge at Woolwich had been obliged by section 4A of the Misuse of Drugs Act 1971 to treat as an aggravating feature the use of persons aged under 18 to supply drugs. He relies on the fact that Wabelua on 29
th
July 2014 was in the company of the youth named in count 6.
12.
Mr Moloney accepts that the trafficking offence could properly have been charged in the same indictment as the drugs conspiracy. He submits that the evidence was available to the prosecution as at the date of the trial at Woolwich. The prosecution had however chosen not to take that course.
13.
Ms Bex, in response, submits that at the date of the Woolwich trial, which could not be delayed without a necessity to seek an extension of the custody time limit, the state of the investigation into the human trafficking did not permit a decision as to charge then being made. She further points out that Wabelua has at no stage admitted the elements of the human trafficking offence.
14.
Mr Moloney's submissions were well argued, but we cannot accept them. The Recorder was in our judgment entitled to find that the trafficking charge was not based on the same or substantially the same set of facts as the drugs conspiracy. It may be noted that in
Beedie
, exactly the same conduct had been relied on first to support a charge of an offence contrary to the Health and Safety at Work Act and then to support a charge of manslaughter. In
Phipps
the same course of driving was the subject of charges, at separate times, of driving with excess alcohol and driving dangerously. In
Dwyer
it was contended on behalf of the appellant that the court, when sentencing him at an earlier hearing for offences of possession with intent and possession of controlled drugs, had already dealt with the conduct which had become the subject of a later prosecution for conspiracy to supply controlled drugs. Here, the Woolwich indictment charged Wabelua in relation to his conduct in entering into an agreement with others to supply drugs. The present indictment, in contrast, charged him in relation to his conduct in intentionally arranging travel for a child with a view to exploiting him. That was a distinct form of criminality involving different conduct at a different time. That essential point is not altered by the fact that the drugs conspiracy charged in the Woolwich indictment was aggravated by the use of persons aged under 18 to supply the drugs. That aggravating feature does not involve the crucial and distinct element of human trafficking. We are satisfied that this was not a case of the prosecution seeking a second bite at the same cherry.
15.
It does not appear that there is maintained any challenge to the judge's refusal to re-open the Recorder's ruling. That concession is, in our judgment, appropriate. The judge rightly observed that the effect of section 40 of the Criminal Procedure and Investigations Act 1996 was that the Recorder's ruling had binding effect and an application to discharge or vary it could only be made if there had been a material change of circumstances. She was entitled to find that the matters relied on by the defence did not meet that test.
16.
The second ground of appeal against conviction relates to the judge's refusal to permit Wabelua to adduce evidence that the victim of his trafficking offence had told a police officer that nobody had forced him to sell drugs and that he had done it for the money. Wabelua's defence to the human trafficking charge was that he had believed the youth concerned to be aged over 18, and had no intention of exploiting him. It was common ground that the youth would not attend court at the behest of either the prosecution or the defence. It was submitted that the hearsay evidence of his statement to the police officer was admissible because it supported Wabelua's belief that the youth was an adult. The judge held, correctly in law, that it was not necessary for the prosecution to prove that the youth concerned did not consent to act in the manner which Wabelua had arranged or facilitated. On that basis she ruled that the hearsay evidence was not relevant to any issue which the jury had to decide, and therefore should not be admitted.
17.
Mr Moloney and Mr Alexander in their written submissions contend that this hearsay evidence should have been admitted because the fact that the youth concerned was able to be so assertive with a police officer, and to rationalise his reasons for being involved in drug dealing, was evidence of his confident and assertive disposition and thus supportive of Wabelua's assessment of his maturity.
18.
Ingenious as that submission is, we are unable to accept it. Even if the jury might have been prepared to accept that Wabelua had thought the matter through in the way suggested, this brief statement could not assist him. Brashness, self-confidence and a wish to make what appears to be easy money are commonly found in adolescents as well as in adults. The fact that the youth concerned spoke to a police officer in terms which may have demonstrated those characteristics could not be said to provide any support for Wabelua’s evidence as to his own state of mind. The judge was clearly correct to refuse to admit the evidence.
19.
In those circumstances we agree with the single judge that there is no arguable ground on which Wabelua can challenge the safety of his conviction on this indictment.
20.
The ground of appeal against sentence is that there is disparity between the length of Wabelua’s sentence for a single offence and the length of the sentences imposed on Alford and Karemera for three offences.
21.
We can deal with this ground shortly, because we agree with the single judge that it is unarguable. The judge had heard all the evidence against Wabelua at the trial, and was in the best position to assess the criminality of each of the three appellants. Alford and Karemera had each entered his pleas on a basis which was agreed by the prosecution and accepted by the judge. She also had to have regard to totality in their cases. It is not submitted that Wabelua's sentence, viewed in isolation, was in any event too long. An argument based on disparity cannot succeed in those circumstances.
22.
For those reasons, grateful though we are to Mr Moloney and to Mr Alexander, we refuse their renewed applications on behalf of Wabelua.
23.
We turn to the appeal against the STPO. Such an order can be made when a court is sentencing a defendant for a relevant offence, or on a free-standing application by a Chief Officer of Police (and certain other designated persons) which is not dependent upon a conviction.
24.
The power to make an STPO on sentencing is contained in section 14 of the Modern Slavery Act 2015, which provides:
"14
Slavery and trafficking prevention orders on sentencing
(1)
A court may make a slavery and trafficking prevention order against a person ('the defendant') where it deals with the defendant in respect of —
(a)
a conviction for a slavery or human trafficking offence,
(b)
a finding that the defendant is not guilty of a slavery or human trafficking offence by reason of insanity, or
(c)
a finding that the defendant is under a disability and has done the act charged against the defendant in respect of a slavery or human trafficking offence.
(2)
The court may make the order only if it is satisfied that—
(a)
there is a risk that the defendant may commit a slavery or human trafficking offence, and
(b)
it is necessary to make the order for the purpose of protecting persons generally, or particular persons, from the physical or psychological harm which would be likely to occur if the defendant committed such an offence.
(3)
A '
slavery or human trafficking offence'
means an offence listed in Schedule 1.
(4)
The Secretary of State may by regulations amend Schedule 1.
(5)
For the purposes of this section, convictions and findings include those taking place before this section comes into force."
25. It is also relevant to consider section 17 of the Act, which provides:
"17
Effect of slavery and trafficking prevention orders
(1)
A slavery and trafficking prevention order is an order prohibiting the defendant from doing anything described in the order.
(2)
The only prohibitions that may be included in the order are those which the court is satisfied are necessary for the purpose of protecting persons generally, or particular persons, from the physical or psychological harm which would be likely to occur if the defendant committed a slavery or human trafficking offence.
(3)
The order may prohibit the defendant from doing things in any part of the United Kingdom, and anywhere outside the United Kingdom.
(4)
Subject to section 18(1), a prohibition contained in a slavery and trafficking prevention order has effect—
(a)
for a fixed period, specified in the order, of at least 5 years, or
(b)
until further order.
(5)
A slavery and trafficking prevention order —
(a)
may specify that some of its prohibitions have effect until further order and some for a fixed period;
(b)
may specify different periods for different prohibitions.
(6)
If a court makes a slavery and trafficking prevention order in relation to a person who is already subject to such an order (whether made by that court or another), the earlier order ceases to have effect."
26.
By section 30 of the Act, a person who without reasonable excuse does anything which he is prohibited from doing by an STPO commits an offence, triable either way and punishable, on conviction on indictment, with imprisonment for up to five years.
27.
The judge in her sentencing remarks recognised that an STPO should only be made if it was both necessary and proportionate. She observed that the statute required her to consider whether there was a risk that any defendant would commit another slavery or human trafficking offence and that it is necessary to make the order for the purposes of protecting the public from harm. On the evidence she had heard, including the evidence which Karemera had given before he changed his pleas to guilty, she was, she said, "more than satisfied" that there was such a risk.
28.
The precise terms of the order which the judge made in respect of each of the appellants can be seen from the copy of it which is annexed to this judgment.
29.
The grounds on which these orders are challenged are the same in each case. Mr Davies submits first that the order was wrong in principle because the requisite risk was not established and in any event the order was not necessary. Secondly, the terms of the order were wrong in principle and/or disproportionate and/or ambiguous.
30.
Mr Davies submits that it will rarely be possible to say that there is no risk at all that a defendant who has committed a slavery or human trafficking offence will not commit another such offence in the future; and that any such risk can be said to carry with it the likelihood of physical or psychological harm to the victim. He submits that it is therefore appropriate to read the statutory provision as applying only to a risk which is sufficient to justify the making of a STPO, and to give the word "necessary" – which is used both in section 14(2) and section 17(2) – its full weight. He submits that in the circumstances of this case, there was no real risk, and no necessity for an order. If the court is against him on that, Mr Davies challenges the individual terms of the orders.
31.
Mr Davies has invited our attention to Home Office guidance as to STPOs. He has also assisted the court with materials relating to the nature of county lines drug dealing, which he submits are relevant to the issue of whether an order, or an order in these terms, was necessary.
32.
There is little if any authority on the correct approach for a court to take when considering the exercise of its power under section 14 of the 2015 Act. Mr Davies draws an analogy with the principles relevant to Sexual Harm Prevention Orders, and their predecessors, Sexual Offences Prevention Orders, and refers to a number of cases decided in that context. He relies on the statement in
R v Steven Smith
[2012] 1 Cr App R (S) 82
at [4] that a Sexual Offences Prevention Order
"must meet the twin tests of necessity and clarity. The test of necessity brings with it the subtest of proportionality."
Further, in reliance on
Steven Smith
in the sexual context, Mr Davies submits that in a human trafficking case, if the necessary risk is established, three questions must then be addressed: (1) Is the making of an order
necessary
to protect from harm? (2) If some order is necessary, are the terms proposed nonetheless oppressive? (3) Overall are the terms proportionate?
33.
In this case, each of the appellants must spend a number of years in prison. Having entered prison as young adults, they will leave in their mid to late 20s at the earliest. Each will be on licence for a substantial period when released. Further, by reason of his conviction, each will be barred from working with children and vulnerable adults under the Safeguarding Vulnerable Groups Act 2006 and will be listed on the Disclosure and Barring Service database. It will be possible for a Chief Officer of Police to apply for a STPO if an appellant's behaviour after release makes such an application appropriate. Thus, submits, Mr Davies, there are already regimes in place which provide protection for the public against the harm which would be likely to result from any future relevant offence. Moreover, he submits, the court should be careful to avoid making an STPO which is not necessary because it may thereby impede the rehabilitation of an offender, for example by making it harder for him to find lawful employment or to reintegrate into society.
34.
Ms Bex submits that the judge was entitled to find that there was a risk and that it was necessary to make an STPO in each case. Each of the appellants had significant previous convictions. Each had been engaged in supplying class A drugs for profit, and had relied on human trafficking to do so. One of the grounds on which they had chosen the victims of the trafficking offences was the vulnerability of those persons for whose welfare the appellants had shown a disregard.
35.
Ms Bex further submits that the safeguarding provisions which are already in place, as mentioned by Mr Davies, will have effect largely in the context of lawful employment and therefore do not assist in relation to the risk of further offending. She submits that the fact that a free-standing application could be made in future is not an answer to the necessity for an order following conviction, particularly having regard to the important role of an order of this kind in deterring an offender from further crime and in making it more difficult for him to engage in further crime. She submits that whilst the wording of some of the particular provisions of the order may have left something to be desired, each of the terms imposed by the judge was necessary and proportionate to protect the children and vulnerable adults who would be likely to be harmed by further human trafficking offences. She points to the use of multiple mobile phones in the drug supply operation, and submits that the prohibitions imposed by the judge in respect of the ownership and possession of mobile phones were therefore clearly necessary. She submits that prohibitions in relation to computers are also necessary because they too can be used to communicate through social media. Both counsel made helpful submissions as to the detail of the wording of some of the clauses of the order which we have annexed to this judgment.
36.
Having reflected on these submissions, we would summarise the principles which are applicable in a case covered by section 14(1) of the 2015 Act as follows:
(a)
As subsection (2) makes clear, an order can only be made if the court is satisfied that there is a risk that the defendant may commit a slavery or human trafficking offence and satisfied that the order is necessary for the purpose of protecting persons generally, or particular persons, from the physical or psychological harm which would be likely to occur if the defendant committed such an offence. The subsection does not require the court to apply any particular standard of proof.
(b)
Although an STPO is a civil order, breach of it carries a serious criminal sanction. The risk that the defendant may commit a slavery or human trafficking offence must therefore be real, not remote, and must be sufficient to justify the making of such an order. In considering whether such a risk is present in a particular case, the court is entitled to have regard to all the information before it, including in relation to any previous convictions of the defendant concerned, or in relation to any previous failure to comply with court orders.
(c)
The order must be necessary for the purpose of protecting persons generally, or particular persons, from the physical or psychological harm which would be likely to occur if the defendant committed a further slavery or human trafficking offence, and not merely desirable or helpful in that regard.
(d)
In many cases where the risk is identified, there will also be a necessity to make an order. However, they are distinct preconditions to the making of an order and they require separate consideration. In determining whether any order is necessary, the court must consider whether the risk is sufficiently addressed by the nature and length of the sentence imposed, and/or the presence of other controls on the defendant, and/or the important ability of a Chief Officer of Police to apply for an order if it becomes necessary to do so at some time in the future.
(e)
The criterion of necessity applies not only to the making of an order at all, but also to the individual terms of the order where one is necessary.
(f)
The terms of the order must in addition be both reasonable and proportionate to the purpose for which it is made: that is one of the reasons why the court must first have made a clear assessment as to why an order is necessary. The court should take into account any adverse effect of the order on the defendant's rehabilitation, and the realities of life in an age of electronic means of communication.
(g)
The terms of the order must be clear, so that the defendant can readily understand what he is prohibited from doing and those responsible for enforcing the order can readily identify any breach.
(h)
A draft order must be provided to the court and to all defence advocates in good time to enable its terms to be considered before the sentencing hearing. We recognise the pressures on judges and advocates, and we recognise that the sentencing process may follow immediately after the jury's verdicts. However, the necessary careful consideration cannot be given to the proposed order if the draft is produced at the last moment.
37.
In the present case the judge was in our view entitled to find that there was a risk that each of these appellants may in future commit a slavery or human trafficking offence. She had heard the evidence at trial, which clearly showed the deliberate exploitation of persons who were vulnerable by reason of youth or, in one case, by reason of mental health issues. True it is that the appellants, all now aged 26, were aged only about 20 at the time of the offences, and there was therefore scope for them to mature and to put their offending behind them – as indeed material which we have seen from the prison suggests that Alford for one is managing to do. But that prospect is in our view relevant to the issue of necessity rather than to the existence of a risk which was more than remote.
38.
As to necessity, we are persuaded by Ms Bex's submissions that the judge was entitled to find that it was necessary to make an order.
39.
In our judgment, however, the terms of the order made against each appellant cannot all be regarded as necessary. We accept that it is necessary to take steps to prevent the appellants having access to untraceable mobile phones and computers which could be used for the purposes of communications in future drug dealing and related human trafficking. If, however, such devices are registered in the name of an appellant, and the current address of each appellant is known to the police, we do not accept that it is necessary to prohibit altogether even the possession of a second phone or computer. We see no necessity for the order in clause 4, preventing contact between the appellants, which on any view is a substantial interference with each appellant's right to a private life. Given that the essence of the appellants' conduct was for the most part to keep themselves out of the limelight and to use mobile phones to despatch others to deliver the drugs, and that there was limited evidence of any appellant himself making a car journey, we see no necessity for prohibiting the ownership or use of a vehicle without prior notification to the police. Nor in the circumstances of this case do we see any necessity for the order made in clause 6, prohibiting each appellant from undertaking or arranging any journey for a person under the age of 18, save in very limited circumstances.
40.
We would add that even in respect of the prohibitions which we accept are necessary, the drafting of the order is unsatisfactory in certain respects. In clause 3, it is not clear to us whether the intention is to permit more than one computer only if all the computers (as opposed to the second or subsequent computers) are for the purposes of lawful employment. Nor do we find it clear what is meant by the reference to an "operational" police station, rather than to a police station, in the context of an appellant being required to provide information to somebody at a police station. In clause 8, despite Ms Bex's submissions, we remain of the view that the reference to a "change/upgrade" is very far from clear. As Mr Davies pointed out in his submissions in reply, the very fact that the members of this court and Ms Bex were engaged in a debate about it for some minutes illustrates the difficulties confronting a defendant who wishes to know what precisely he may and may not do. Whilst in one sense these deficiencies may be thought minor and easily capable of correction, their significance in the circumstances of this case is that they suggest a failure to give sufficiently clear thought to the necessary terms of the order.
41.
Finally, we are concerned as to the duration of the orders. Given that the appellants were young adults when they committed the offences, we see no necessity for the orders to extend for 15 years. In our judgment, a significantly shorter period will suffice.
42.
In the result, we allow each of the appeals against sentence to this limited extent. We uphold the judge's decision that STPOs were necessary, but we quash the terms which she imposed and we substitute in each case the following:
"During the period of seven years from 14
th
May 2019:
(a)
You must not own or possess any mobile phone handset or SIM card, or any computer, unless (i) it is registered with your service provider in your full name and at your current address, and (ii) details of its make, model and identification number have been provided to the police within three days after you acquire it.
(b)
You must notify your home address to the nearest police station and notify any change of that address to the police within seven days after you move."
______________________________
A N N E X
:
TERMS FOR EACH DEFENDANT
This order imposes the following prohibition(s) and requirements upon you:
1.
You must not own or possess more than one mobile phone handset
2.
You must not own or possess more than one mobile phone SIM card and this must be registered in your full name and address (as outlined in this order) with the service provider
3.
You must not own or possess more than one computer, save for the purposes of lawful employment, and you must provide details of this lawful employment (details: place of work, name of employer) within 3 days to the nearest operational police station to where you are living. For the avoidance of doubt, a computer includes, but is not limited to:
a.
desktop computer
b.
laptop computer
c.
tablet computer
d.
Netbook
4.
You must not contact, by any means, directly or indirectly: [INSERT CO-
DEFENDANTS]
5.
You must not own or be insured to drive a vehicle which you have not notified the police the details of (details: make, model and registration number); you must notify the police at the nearest operational police station to where you are living,
6.
You must not drive, escort or arrange the travel of any person under the age of 18 in any vehicle, save for members of your family whose parent or guardian is aware of your conviction(s) for offences contrary to section 4 (1A) (b) of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004.
7.
You must disclose your home address to the nearest operational police station to where you will be living - and to notify the police of any change of address within 7 days of moving.
8.
You must not own or possess a mobile phone handset or SIM card unless you have notified the police at the nearest operation police station to where you will be living, of the details of that mobile phone handset and SIM card AND notify the police within 3 days of any change/upgrade of these items
9.
You must not own or possess a computer unless you have notified the police at the nearest operational police station to where you will be living, of the details of your computer (including make model and serial number) AND notify the police within 3 days of any change/upgrade of these items
For a period of 15 years
___________________________________
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: '[2020] EWCA Crim 783'
date: '2020-06-09'
judges:
- LORD JUSTICE HOLROYDE
- MRS JUSTICE CHEEMA
``` |
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 72
Case No:
2008/06815
Case No:
2009/02259
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MAIDSTONE CROWN COURT
HIS HONOUR JUDGE STATMAN
T2007/7465
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
29/01/2010
Before:
LORD JUSTICE HOOPER
MR JUSTICE WYN WILLIAMS
and
RECORDER OF CROYDON
(Sitting as a Judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - - - - - - - - - - -
Between:
REGINA
Respondent
- and -
C
T
First Appellant
Second Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Eloise Marshall & Samantha Hatt
for the
Respondent
Ian Jobling
for the
First Appellant
Lord Gifford QC & Anthony Katz for the Second Appellant
Hearing dates: 14 & 15 January 2010
- - - - - - - - - - - - - - - - - - - - -
Judgment
Mr Justice Wyn Williams:
Introduction
1.
This is the judgment of the court to which all members have contributed.
2.
On 7 November 2008, at the Crown Court at Maidstone, C was convicted of three counts of committing gross indecency with a child (counts 4, 16 & 17) one count of inciting a girl under the age of 16 to commit incest (count 11) three counts of rape (counts 14, 15 & 18) and one count of indecent assault (count 19). On the same date T was convicted of one offence of rape (count 10). On January 2009 the trial judge, HHJ Statman, sentenced C to life imprisonment in respect of the counts of rape. The Learned Judge specified that the minimum term to be served was 9 years and 6 months and that the time spent in custody on remand, namely 89 days, should count towards that minimum term. Concurrent determinate sentences were imposed for the other offences of which C was convicted. T was sentenced to a term of 8 years’ imprisonment for the offence of rape.
3.
Both C and T appeal against their convictions with the leave of the single judge.
4.
C and T were indicted upon an indictment containing a total of 31 counts. Another man, L, the brother of C, was also charged upon this indictment. He was charged with eleven counts of indecency with a child, eight counts of rape, four counts of indecent assault and one count of sexual assault upon a child under the age of thirteen. He was convicted of all the counts against him save for two counts of rape. The offences committed by L were against five young girls, L, C, V, R and J. The offences against L were committed when she was between the ages of five and eight, the offences against C were committed when she was aged between four and seven, the offence against V was committed when she was between six and seven, the offences against R were committed when she was between the ages of four and ten and the offences against J were committed when she was between the ages of nine and twelve. L was the uncle of all his victims.
5.
L was also sentenced to life imprisonment for the offences of rape and he received determinate terms of imprisonment for the other offences. He has not appealed against his convictions.
6.
Some of the offences of which C was convicted were committed jointly with L. We will detail those offences in the next section of this judgment. The single count upon which T was convicted was allegedly committed with L.
C
7.
C was convicted of offences against L, C and H. They were his daughters. Count 4 was a joint charge with L. It alleged that when L was aged between five and eight L and C committed the offence of indecency with a child by tying L to a chair at shop premises to which L had access and then forcing her to have oral sex with L. It was a specimen count. Count 11 was charged against C alone. It alleged that he incited the offence of incest by inciting his son D to have sexual intercourse with L. Count 14 jointly charged L and C with the rape of C. The allegation was that L had sex with C at the shop premises to which we have referred and when C was holding her on a chair. Count 15 was also a joint charge of rape against the two men. This charge alleged that C had sex with C while L was holding her on a chair at the shop premises. Counts 16, 17 and 18 were offences committed by C against C within the bedroom of his own home. Count 16 alleged that C had made C engage in oral sex with him; count 17 alleged that he had forced her to masturbate him and count 18 alleged that he had raped her. Counts 14 to 18 were all specimen counts. C was convicted of a single count relating to H. Count 19 alleged that at a time when H was under the age of fourteen C touched her vagina and lay on top of her.
8.
C appeals against all his convictions. He has advanced three grounds of appeal.
9.
The first ground of appeal is that the proceedings against him should have been stayed as an abuse of process. He advances this ground, primarily, by reason of the fact that he was tried for and acquitted of sexual offences against his daughter L and his son D in 1999.
10.
In summary, the events leading to the prosecution in 1999 were as follows. From about 1992 the social services department of the relevant local authority became increasingly involved with the family of C. C was married to a woman called F and they had 6 children; D and his younger brother, L, C, H and another girl, S. During the 1990s social services became increasingly concerned about the physical neglect of those children. In 1998 a decision was made to take four of the children into care; they were D, L, C and H. Following their removal from the family setting D, L and C made disclosures to their foster carers which suggested that they had been the victims of sexual abuse. Following these disclosures D, L and C were interviewed and a video recording made of the interviews (ABE interviews). D and L made suggestions of sexual abuse against both their parents; C’s interview was much more equivocal.
11.
It was on the strength of these interviews that a prosecution was instigated in 1999. The persons charged were C, F, L and a man called T. Ultimately those four persons stood trial on an indictment containing 21 counts. C was charged with offences of indecent assault against L and D, offences of incest against L and offences of buggery against D. He was also charged with child cruelty in relation to both children. He was not charged with any offence against C or H. The charges of a sexual nature brought against him depended, essentially, upon the ABE interviews of L and D. The charges of child cruelty related to his alleged neglect of L and D.
12.
At trial the Learned Trial Judge ruled the ABE interviews inadmissible. The case against all Defendants collapsed and there were directed verdicts of not guilty as we understand it.
13.
In June 2005 J made a complaint of sexual assault against L. In 2006 R complained about his conduct towards her. A police investigation began and it was discovered that a complaint had already been made by V. In July 2007 L was arrested and interviewed under caution. A story was published in the local press and, as a consequence, L contacted the police. In the summer of 2007 L was aged seventeen. She had been nearly nine at the time that she had been interviewed in 1999. L was interviewed again and her interview was video recorded; this was a second ABE interview. She made many and detailed disclosures which were to found the counts on the 2008 indictment which related not just to her but also those counts which related to C and H. That was so since, in summary, she claimed to have witnessed the sexual offences which were alleged to have occurred against her sisters C and H. Further she disclosed that C had incited the sexual intercourse between D and her.
14.
The indictment upon which C was tried in 2008 contained two counts of sexual misbehaviour by C against L. They were counts 4 and 11. Ms Marshall, for the prosecution, submitted to us that those counts had been chosen with care. They had been chosen, deliberately, to relate to conduct which had been disclosed by L for the first time in 2007. The conduct alleged in counts 4 and 11 had never been disclosed by L prior to her interview in 2007.
15.
Mr Jobling, Counsel for C, does not suggest that the counts laid against C in 2008 were based upon disclosures made by L prior to 2007. In other words he accepts that C could not have been tried upon these allegations in 1999. While, therefore, there were allegations of sexual misconduct laid against C at his trial in 1999 they were not the same allegations as those which were made against him in 2008.
16.
The indictment in 1999 contained no allegations against C relating to his daughters C and H. The allegations contained within the 2008 indictment relating to C and H were allegations founded solely upon disclosures which were made after the conclusion of the trial in 1999.
17.
At the commencement of the trial before HHJ Statman Mr Jobling submitted that the indictment should be stayed as an abuse of process. It is of some note that C did not plead
autrefois
acquit.
18.
Before us Mr Jobling accepted that C could not rely upon the principle
autrefois
acquit. He nonetheless submitted that it was oppressive to prosecute him in 1999 in reliance on the evidence of L when she was a child and then prosecution him again in reliance upon her evidence when she was considerably older. It is sufficient to say that, on the facts of this case, this is a hopeless argument. The disclosures made by L in 2007 were far more wide ranging; further they were disclosures of the commission of very serious offences which had not, hitherto, been disclosed.
19.
Even if it is not correct to characterise the argument as hopeless, Mr Jobling cannot possibly show that the decision of the trial judge not to stay the proceedings was a decision which a reasonable trial judge could not reach.
20.
In our judgment there is nothing in the first ground of appeal which leads us to the view that the convictions recorded against C should be quashed.
21.
Before HHJ Statman Mr Jobling had submitted that the prosecution should have applied to the Court of Appeal under the provision of the
Criminal Justice Act 2003
which permit, in certain limited circumstances, a retrial of a person who has been acquitted. He suggested that the failure of the prosecution to take that course itself amounted to an abuse of process. During the course of the oral debate before us Mr Jobling rightly abandoned that point. To repeat, therefore, we are firmly of the view that the first ground of appeal should be rejected.
22.
The second ground of appeal advanced on behalf of C is that HHJ Statman erred in law in permitting the prosecution to adduce hearsay evidence from Mrs F.. After C was taken into care, she was placed for adoption. In due course, she was adopted by Mrs F.. Over a period of some years C was said to have made disclosures to Mrs F. about the conduct of C towards her. Mrs F. made a statement to the police in which she set out what her adopted daughter had told her. In that statement, however, she also said that she would not permit C to be interviewed about those disclosures or give evidence about her experiences. In the view of Mrs F., the giving of evidence, in particular, was likely to have a detrimental effect on what she described as C’s fragile mental state.
23.
The substance of Mrs F.’s evidence (as admitted by the judge) was as follows. C had first gone to live with Mrs F. when she was 6 years and 8 months old. Mrs F. described her as being distraught at that time. She was fearful about going upstairs and she had limited language. Shortly after the time that C went to live with Mrs F. she divulged to her that C had “get me, hurt me, hurt minny.” At a later date when C was about 7¾ she repeated that allegation adding on this occasion that she had gone upstairs and that L had hurt her and hurt her minny as well. Mrs F. also gave evidence that in June 2007, at an occasion arranged especially for adoptive parents, C told her that when she was older she wanted to meet F (her birth mother) but she did not want to meet her father. She added that he had raped her got on her and had sex with her and that that she hated him. At the time of this disclosure C was 13.
24.
The prosecution took the view at trial and maintained the view before us that Mrs F.’s evidence was an important part of its case. Ms Marshall submitted that her evidence should be admitted since it supported the evidence given by L that C and L had perpetrated abuse upon C; it was further submitted that the evidence supported the credibility of L in relation to all the evidence which she had given. Counsel for C and L opposed the application to admit Mrs F.’s evidence. The main points made by them in opposition to the application were that C was capable of giving direct evidence of her complaints and that if the hearsay evidence was given in substitution for C’s direct evidence there would be no proper way of testing its truthfulness.
25.
The application to admit Mrs F.’s evidence was heard after L had completed her evidence. L gave her evidence between Wednesday 24 September and 1 October 2008. The application to admit the hearsay evidence was heard on 1 October. At the conclusion of oral submissions HHJ Statman ruled that Mrs F.’s evidence should be admitted. Relying upon
section 114(1)(d)
Criminal Justice Act 2003
, he concluded that it was in the interests of justice for the evidence to be admitted. His view was that the disadvantage to the Defendants which would flow from their inability to cross-examine C about her allegations would be minimised by suitable directions in his summing-up.
26.
As it happens at or about the time when Counsel were engaged in the argument relating to the application to adduce hearsay evidence information was coming to light that C had indicated to Mrs F. that she would be prepared to give evidence – or, at least that she was prepared to go to court. It is to Mrs F.'s credit that she volunteered that information to the police and/or the prosecuting authorities.
27.
When Mr Jobling became aware of this information and, perhaps more importantly, when he had had time to consider its significance he renewed his opposition to the admission of Mrs F.'s hearsay evidence. We have the transcript of the relevant exchanges which took place between Counsel and the learned judge on 6 October 2008 and, also, the judge’s ruling. Essentially Mr Jobling made the point that there was every reason to believe that C was a willing witness. Despite this submission HHJ Statman maintained his view that the hearsay evidence should be admitted. The result was that C did not give evidence at the trial. Mrs F. gave evidence along the lines we have summarised above. She was not persuaded to modify her evidence in cross-examination although Counsel were able to elicit that Mrs F.’s evidence was given entirely from memory; she had made no contemporaneous notes of what C had said.
28.
The circumstances in which hearsay evidence can be adduced in a criminal case are set out in a number of provisions contained within Chapter 2 of the
Criminal Justice Act 2003. Section 114
provides:-
“(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)…..
b)…..
c)…..
d)
the court is satisfied that it is in the interest of justice to be admissible.
(2)
In deciding whether a statement not made in oral evidence should be admitted under subsection 1(d) the court must have regard to the following factors (and to any others it considers relevant) –
a)
how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;
b)
whatever evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);
c)
how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;
d)
the circumstances in which the statement was made;
e)
how reliable the nature of the statement appears to be;
f)
how reliable the evidence of the making of the statement appears to be;
g)
whether oral evidence of the matter stated can be given, and if not, why it cannot;
h)
the amount of difficulty involved in challenging the statement;
i)
the extent to which the difficulty would be likely to prejudice the party facing it.
Section 116
is in the following terms:-
“1.
In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matters stated if –
a)
oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter;
b)
the person who made the statement (the relevant person) is identified to the court’s satisfaction, and
c)
any of the five conditions mentioned in subsection (2) is satisfied.
2.
The conditions are –
a)
that the relevant person is dead;
b)
that the relevant person is unfit to be a witness because of his bodily or mental condition;
c)
the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;
d)
that the relevant person cannot be found or such steps as it is reasonably practicable to take to find him have been taken;
e)
that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.”
29.
It was common ground at trial and it is common ground in this appeal that the conditions laid down in
section 116(2)
could not be satisfied in relation to C. Accordingly Mrs F’s evidence could not be admitted under
section 116
.
30.
As we have said the trial judge admitted her evidence under
section 114(1)(d)
. In
R v Z
[2009] EWCA Crim 20
Stanley Burnton LJ giving the judgment of the court said this about the relationship between
sections 114
and
116
.
“19. However,
section 114(1)(d)
must be construed and applied in its statutory context. In particular, in a case such as the present, when the evidence in question is of a statement making an allegation of misconduct, it must be read together with
section 116
. That section is narrowly drawn. It is headed “Cases where a witness is unavailable”, which would not include the case of D. [The witness of primary fact in that case]…..
20. In our judgment,
section 114(1)(d)
is to be cautiously applied, since otherwise the conditions laid down in Parliament in
section 116
would be circumvented. As Scott Baker LJ said in
O’Hare
[2006] EWCA Crim 2512
at paragraph 30:
“We think it important to point out that, as a matter of generality,
section 114
cannot and should not be applied so as to render
section 116
nugatory.”
But
section 114(1)(d)
should not be so narrowly applied that it has no effect. It follows that there will be cases in which hearsay evidence may be admitted under it in circumstances in which it could not be admitted under
section 116
as in
Isichei
[2006] EWCA Crim 1815
, where it was admitted “as part of the story of a common sense series of events, the one leading from the other” and
Xhabri
[2005] EWCA Crim 3135
[2006] 1 Cr.App.R 26
. Both of those were very different cases from the present: the hearsay statements admitted were part of the incidents that were the subject of the trials.
31.
A similar approach has been taken by another constitution of this court in the very recent decision in
Maxwell
[2009] EWCA Crim 2552
.
32.
In this case the primary source of evidence against both C and L was the eye witness evidence of L. The evidence of Mrs F. provided support for the evidence of L particularly as it related to the counts involving C (counts 14 to 18). The hearsay evidence, on its own, would not have been sufficient to prove the allegations in counts 14 to 18. We say that since, in our judgment, the evidence was too generalised and non-specific. However, it was evidence which, if accepted, tended to support the evidence given by L.
33.
The admission of Mrs F.’s evidence must also be seen against the context of the medical evidence given by Dr Herring. There was very little, if any, room for doubt on her evidence that C had been subject to sexual abuse – see paragraph 44 below. The issue for the jury was whether the appellant and/or his brother were the perpetrators.
34.
As we have said HHJ Statman first ruled in relation to the hearsay evidence on 1 October 2008. We have a transcript of what he said. It is clear beyond argument that the learned judge realised that his task was to decide whether he was satisfied that it was in the interests of justice to admit Mrs F.'s evidence and that in reaching that conclusion he was bound to have regard to the various matters referred to in
section 114(2)
of
the 2003 Act
. However, it does not seem to us that he identified and then focussed upon those sub-paragraphs of
section 114(2)
which were of obvious importance in the instant case. We refer to sub-paragraphs (e), (g) and (h).
35.
In our judgment the judge did not consider sufficiently the issue of C’s reliability (sub-paragraph (e)). We accept that he identified it as an issue to be considered. However, it does not seem to us that he properly considered the difficulties inherent in making a judgment about the reliability of a young girl who had said nothing which was obviously incriminating against C in her ABE interview in 1999 and who had not been subjected to the discipline of making detailed disclosures under proper conditions (in a second ABE interview) in 2007 or 2008. While there may have been material by which to judge the reliability of C (as Ms Marshall pointed out in her submissions to us) the judge appears not to have given that material any specific consideration when assessing whether C’s account to her adoptive mother was reliable.
36.
It also seems to us that the judge failed to consider sufficiently sub-paragraph (g). Where, as here, the witness of primary fact was identified and not precluded from giving evidence for any of the reasons set out in
section 116
it was necessary for the judge to scrutinise with considerable care the reasons why it was being suggested the witness could not give evidence. We shall return to this point in detail in a moment.
37.
It is clear that the judge recognised that the defence would find it difficult to challenge the evidence of Mrs F. (sub-paragraph (h)). In fact it is difficult to see how any effective challenge could be mounted to what she had to say other than to assert that she was mistaken in her recollection. We are not convinced that the learned judge gave proper weight to this difficulty.
38.
It is also apparent that the judge did not consider the relationship between 114(1)(d) and
section 116
. It is clear that the relationship between the two sections must be considered with care. Yet there is nothing in the transcript to suggest that the judge considered the relationship between these two sections at all.
39.
In one sense that is not surprising. The decision in
Z
was handed down on 23 January 2009 i.e. some weeks after the judge had made his ruling. Admittedly the decision in
Z
takes as its starting point as an earlier decision of this court in
O’Hare
but we do not criticise the Learned Judge for failing to consider the relationship between
sections 114
and
116
, particularly since, so far as we are aware, Counsel did not make submissions before him about the relationship between these two sections. However in failing to grapple with the relationship between the two sections the judge fell into error. Had he considered the two sections together he would, inevitably, have focussed his attention to a much greater extent upon the reasons advanced in support of the proposition that C’s evidence could not be given first hand (
section 114(2)(g)
).
40.
The judgment of this court in
Z
makes it clear that
section 114(1)(d)
is to be cautiously applied since otherwise the conditions laid down by Parliament in
section 116
will be circumvented. That is not to say that
section 114(d)
can never be invoked when the criteria laid down in
section 116
cannot be met. To repeat, however, a cautious approach is necessary when consideration is being given to the admission of hearsay evidence when a witness of primary fact is alive and well and, on the face of it, able to give oral evidence to the court. In our judgment this approach must be followed strictly when, as here, the witness of primary fact is an alleged victim of serious crimes.
41.
In the instant case a proper application of the statutory criteria in
section 114(2)
and the principle in
Z
leads us to the conclusion that the hearsay evidence of Mrs F. should not have been admitted. At the time this application was made to the judge C was aged fifteen. Obviously there was no reason relating to her age why she could not give oral evidence at court. We appreciate, of course, that Mrs F. appeared to have strongly held and genuine views that giving evidence at a criminal trial would have a detrimental impact upon C’s wellbeing. So far as we can judge, however, no particular steps were taken to ascertain whether Mrs F.'s views were correct. No request was made to her to permit an examination of C by a suitably qualified professional. All that occurred was that a police officer or police officers discussed with her the desirability of C giving evidence.
42.
Neither the prosecuting authorities nor the learned judge took steps to test Mrs F.'s resolve. She was not asked to make a statement dealing specifically and in detail with the reasons why she objected to C giving evidence. She was not asked to give evidence before the learned judge to explain why she objected to C giving evidence. The position seems to have been, throughout, that the prosecuting authorities accepted that Mrs F., in effect, had the right to decide whether or not C gave evidence.
43.
No one from the prosecuting authorities took any steps towards asking C directly what she felt about giving evidence. We appreciate that the authorities would wish to act with a degree of caution and that Mrs F. was, apparently, preventing anyone from speaking directly with C. Nonetheless, we find it hard to accept that a suitably qualified professional could not have persuaded Mrs F. that it was appropriate for C to be spoken to directly about the issue of giving evidence – or at least that a suitably qualified professional should not have been appointed to make the attempt.
44.
We have reached the conclusion that in the circumstances presented to the learned judge he should not have admitted the hearsay evidence of Mrs F.. Further, the learned judge was wrong to maintain his ruling on 6 October 2008 when he had received an indication that C might be prepared to give evidence. At the very least, in our judgment, the judge should have directed that steps be taken to ascertain C’s true view before he reached a concluded view upon whether the hearsay evidence should be admitted.
45.
Did the admission of the hearsay evidence render the convictions recorded against C unsafe? We asked Ms Marshall to address this issue specifically at the close of her submissions and she submitted that it did not. In his reply, Mr Jobling said nothing in response to Ms Marshall’s submissions on this point. We are driven to the conclusion that his silence on this point speaks volumes. The reality is that there was a very powerful case against C and we have no doubt that he would have been convicted upon all counts even in the absence of Mrs F.’s evidence.
46.
L was critical to the case for the prosecution on all counts faced by C. She told the jury that she had witnessed all the acts of sexual abuse of which C was convicted. D, C and H did not give evidence about the abuse upon them. As the learned judge told the jury the key issue for their consideration when considering the case of C was whether L was telling the truth. The jury must have concluded that L was a truthful witness. In his case there was no room for mistake on the part of L. She was either truthful, as alleged by the Crown, or a liar and fantasist as alleged by the W. brothers.
47.
Quite independently of the evidence of Mrs F. there was powerful support for L’s evidence. First, there was compelling medical evidence which supported L’s account that C had been the subject of very serious abuse at the hands of someone. The evidence came from Dr. Herring a distinguished expert in the field of child abuse. She had examined C in 1999 before the first trial i.e. when she was about 6. Dr. Herring discovered that C had very likely been subjected to repeated penetration of her vagina most probably by a penis or something similar to a penis. She was able to reach that view because there was a significant loss of hymenal rim width. In Dr. Herring’s words “the rim was worn away, particularly in the posterior position.” There was no history of accidental damage which could begin to explain such a finding.
48.
Second, in our judgment, the fact of C’ previous conviction for indecent assault upon a young girl and the circumstances of the assault were properly admitted before the jury (see paragraphs 49 to 54 below). The conviction and the circumstances in which the crime was committed demonstrated a propensity on the part of C to commit sexual offences against young female children. The evidence of the previous conviction and the circumstances in which the crime was committed provided support for L’s assertion that C had committed the crimes alleged on the indictment.
49.
Third, parts of Mrs F.’s evidence were admissible on any view. Her evidence that C was afraid to go upstairs when she first started living with her was evidence which supported L’s description of the abuse which had taken place in her father’s bedroom. The evidence to the effect that C was generally distraught when she first started to live with Mrs F. was wholly consistent with the alleged sexual abuse having taken place.
50.
Finally, C did not give evidence. His failure was correctly identified by the judge as being a factor which supported the case for the prosecution.
51.
To repeat, in the particular circumstances of this case we are completely satisfied that even if the evidence of Mrs F. had not been admitted before the jury C would have been convicted of the counts laid against him and that the admission of her evidence did not render his convictions unsafe.
52.
We turn to the third ground of appeal. As originally formulated it was that HHJ Statman was wrong to have admitted in evidence the conviction for indecent assault recorded against C in 1981. However, before us Mr. Jobling abandoned his argument that the fact of the conviction should not have been admitted. He submitted rather that the alleged facts of the incident should not have been adduced before the jury.
53.
In his Skeleton Argument Mr. Jobling appeared to assert that the facts surrounding the conviction as presented by the prosecution were disputed. However, the Skeleton provided no detail as to what were the areas of disagreement. This was a somewhat unsatisfactory state of affairs. We pressed Mr. Jobling on what were the disputed facts. Ultimately, his position was, on instructions, that C could not remember the salient facts surrounding his conviction. In our judgment this provides no basis to conclude that the learned judge was wrong to permit the prosecution to adduce the facts as it alleged them to be.
54.
In our judgment the judge was correct to have admitted both the fact of the conviction and the facts relating to its commission. The conviction was recorded against C on 9 November 1981. At that time he was aged 19; his victim was a girl of 8. The prosecution obtained a michrofiche which contained the following details, namely “C, aged 19, pleaded guilty to one count of indecently assaulting a female aged 8: he removed her shorts and pants, laid the child on the ground, got on top of her and exposed his penis.,” That summary was put before the jury.
55.
In our judgment, the evidence of the conviction and the facts relating thereto was properly admitted under
section 101(1) Criminal Justice Act 2003
. The judge admitted the evidence under subsection (1)(d) since it was relevant to an important issue between the prosecution and defence, namely propensity. In our judgment he was correct so to conclude. The judge did not rule upon whether it was admissible on two other bases i.e. under subsection 101(e) and subsection (1)(f) although the prosecution had made its application to admit the evidence under all three subsections. We need not address the issue of whether subsections (1)(e) and (1)(f) could have been invoked.
56.
The microfiche was a document which fell squarely within the terms of
section 117 Criminal Justice Act 2003
(business records) and was admissible under that section.
57.
We should add that in his ruling on admissibility the learned judge carefully considered the time gap of about 13 years from the date of the previous conviction to the date of the offence relating to H. He did that primarily because the previous conviction was in many respects similar to the offence against H. He also carefully considered the question of any adverse effect on the fairness of the proceedings (
Section 101(3)
of
the 2003 Act
) and applied the key criteria in
R v Hanson
[2005] 2 Cr App R 21
. He correctly ruled that the conviction was not being admitted to bolster a weak case.
58.
It follows from the above analysis that we are completely satisfied that this ground of appeal fails.
T
59.
We now turn to the appeal of T (“B.”). She was represented before us by Lord Gifford QC and Mr. Katz who had not appeared for her at trial.
60.
During the relevant period B. was the partner of L.
61.
B. was originally indicted on two counts: 9 and 10. Both counts charged L and her with the rape of L at a time when L was nearly 8 years old. L was born on 11 October 1990 and it follows that the alleged rapes must have taken place in the summer or autumn of 1998. The particulars for count 9 were: “first occasion on which L had sex with L at his home while T held her legs when she was nearly 8 years old.” The particulars for count 10 were: “second occasion on which L had sex with L at his home while T held her hands and facilitated the entry of L’s penis into L’s vagina ...”.
62.
Counts 9 and 10 were supported by L’s 2007 ABE interviews at the time of which she was 16 years old (nearly 17). She had made no reference to any abuse by either L or B. in her 1999 ABE interviews when she was about 8 years old. In those interviews, however, she had made allegations of abuse against, amongst others, F, her mother.
63.
During the course of her evidence L said that B. had only joined in with L on one occasion at the home of L and B., C Street, Gillingham. In the light of that evidence, the jury were directed to find both defendants not guilty of count 9. Albeit that the jury convicted C and L unanimously, the jury convicted B. on count 10 by a majority of 11-1.
64.
B. did not give evidence. When interviewed she had denied the allegations being made against her by L and had denied knowing that L was abusing children.
65.
Lord Gifford accepted that, in the light of the evidence of L in support of count 10 there was a case to answer. He submitted that the case was a weak one, given, in particular that L was describing one isolated incident many years before when she was much younger, that there was no independent supporting evidence and that there was no evidence before the jury of any complaint of abuse in which B. was involved until the 2007 interviews.
66.
We agree that the case against B. as presented to the jury was not a strong one.
67.
The thrust of the complaints made by Lord Gifford was that there was a substantial risk that B. would be improperly “dragged down” by the evidence of prolonged and appalling abuse on the part of C and L given during a trial lasting some six weeks and represented in 31 counts, 26 of which involved L and six victims. Indeed of the 51 pages of the summing up setting out the facts only about seven concerned B..
68.
In the words of Lord Gifford:
There was a real danger that the minds of the jury would be so affected by this repulsive history of inter-familial sexual abuse, that they would hold everyone to blame.
69.
To avoid that happening what was needed, so Lord Gifford submitted, was a quite separate part of the summing up when the evidence for and against B. was summarised as well as the points made by counsel for the prosecution and counsel for B.. It is not in dispute that, in large measure, this did not happen. The evidence for and against B. appears in the summing up in various parts as the judge summarized the evidence of the witnesses. Nor did the judge bring together in one place the various comments on the evidence made by counsel for B. or point out that there was no independent supporting evidence of L’s evidence against B..
70.
Lord Gifford gave two particular examples. The first concerned L’s evidence about the layout of the house where she alleged the rape had occurred. A few stairs led to the front door of the house which contained two stories, the upper level of which was occupied by other people. The appellant occupied the ground floor and there was a room below. There was evidence that the room below was a cellar with rubbish and a darts board. In the words of Lord Gifford:
... In her ABE interview L said clearly that the house where L and T lived at C Street had an upstairs and downstairs. She said (ABE page 99 of 124):
“It had tv with – it had a bedroom. About two bedrooms, erm, downstairs, it’s like, you go in there, there was, you can see who’s, like, mainly answer the buzzer……. And then you go down there and then there’s a house, little bit thing, go down, like, a hallway thing….. and then you go up, like, stairs thing.. and then there’s, like a little room…… er, a kitchen and then dining room and then you go upstairs and then there’s a bedroom and toilet, a bathroom.
Q. Right, so you’ve got a downstairs and an upstairs?
A. Yeah.
At page 105 she said that T was coming back from the shop or something, and she first noticed her when “she come upstairs”. She had pointed out to the police when she was taken to C Street that L lived in the upstairs flat (transcript of XX, 154C). She repeated that T came upstairs (165A-E). When it was put to her that there was no upstairs, she said “that is an easy mistake to make, but it did happen though and she was there.” (166B). “That is an easy mistake if he didn’t have an upstairs, my mistake” (172B)
It was established in evidence that there was no “upstairs” in the house at C Street. Plans were put before the jury which will be annexed to this advice, showing that it was a one-bedroom flat on the ground floor level only. The only stairs were stairs leading down to a cellar full of junk. The layout was confirmed by witnesses E.C. (112G and T (114C).
71.
Lord Gifford submitted that although the judge summarized some of the evidence about the house, he did not draw the strands together to help the jury understand the relevance of it as potentially undermining L’s evidence. The defence submitted that if there was no upstairs, L may have been thinking of another location In the words of Lord Gifford :
It is submitted ... that the learned judge failed to explain the defence case relating to the “upstairs” mistake. At 61D the judge said that he was going to remind them of a point made relating to the layout of C Street. Remarkably, having said that, he did not remind them of the point. He simply said “you have the plans and you will look with care at the layout of this home”. The evidence from the ABE interview about there being an upstairs, and T coming upstairs, was not read out. The “upstairs” evidence was not referred to until page 73. When dealing with the evidence of E.C. at 112G and T at 114C about the cellar, there was no reference back to the previous evidence about the stairs. The impression given was that the point which formed “a large part of Mr Haynes’ cross-examination” had no substance. What was needed was an explanation of the point, which was central to the defence, and its relevance to the issue whether the passage of time had caused L to believe that she remembered an episode which may not have happened.
72.
We see force in this submission given in particular that the alleged rape occurred many years before when L was a child and given that in cases of alleged historical abuse the delay inevitably places the defendant at a disadvantage. Albeit that it is for the jury to decide whether alleged inconsistencies of this kind do or do not undermine the evidence of the complainant, it may nonetheless be necessary for the judge to remind the jury not only of the relevant evidence but of its relevance to the issues which the jury have to resolve.
73.
The other example relates to the construction of the bed where the rape was alleged to have occurred. In the words of Lord Gifford:
A further problem arose with the headboard of the bed at this address. It was a striking detail of L’s account that L had tied her to the metal headboard of his bed, before T came upstairs and joined in. See her ABE interview at page 102. In cross-examination she confirmed that it was a metal headboard and that she was tied to it (164B). But evidence was given for the defence by E.C. that she helped T move to C Street (112F): “she brought a four foot bed down from her mums but didn’t take the headboard as the fixture was broken.” T her mother confirmed that the headboard stayed at her house (114C)
If there was no headboard, then how could L have been tied by the hands to the bed? The defendant was entitled to a clear direction on all these points which were crucial to her defence.
74.
Lord Gifford complained about the way that the judge dealt with this issue:
... the judge failed to explain the evidence relating to the headboard. He said at 61F that L had said she was tied to “the railing”. He made no reference to her description of a “mental headboard” either in this passage or in the summary of cross examination at 73. The evidence of the two witnesses about the bed having no headboard was mentioned (112, 114), but no explanation was given about its relevance to the issues in the case.
75.
Again we see force in this submission.
76.
We turn to another point made by Lord Gifford. In so far as C and L were concerned the issue for the jury was, as the judge reminded the jury, whether L was telling the truth. The judge said (at page 70F):
The key you may feel is this, and I am about to make a comment – are you sure that L is telling you the truth? That is the key, you may feel, to the judgment that you have to arrive at in relation to those counts concerning her.
77.
A little later (page 72D) he said:
The defence are submitting to you that this young woman L is fantasising about what she has told you ... .
78.
Miss Marshall pointed out to us that all three counsel had made this point and that L’s allegation included more than holding L down. However, as Lord Gifford pointed out, in the case of B. the issue was not just one of credibility but of accuracy of recall after so many years. By not separating the narrow case against B. into a separate compartment, that important point was at risk of being overlooked by the jury. Indeed there was a risk that the jury would not address the issue of accuracy of recall, confining themselves to the issue of credibility, saying: “We are sure that L is telling the truth about C and L and therefore she is telling the truth about B. and therefore she is guilty.”
79.
Lord Gifford made other complaints about the summing-up, which we do not need to resolve.
80.
We turn to what in our view is the strongest point in favour of the appellant. Lord Gifford’s submission that there was a substantial risk that B. would be dragged down is, in our view, well demonstrated by the manner in which the prosecution put their case, as demonstrated by two passages in the Skeleton Argument for the respondent. In paragraph 8 Miss Marshall submitted that:
The jury had to consider firstly, whether it was likely that T was ignorant of L’s behaviour and secondly, why she might protect him when challenged about it. It was the Crown’s case that T was fully aware of L’ sexual behaviour towards children and had on occasion been involved herself, hence her protection of L [in her interviews].”
81.
In paragraph 30 Miss Marshall submitted in answer to a criticism made by Lord Gifford of how the judge summed up L’s evidence on count 10:
It was not solely a question of one isolated incident but one incident of involvement in prolonged sexual abuse, the issue of T’s state of knowledge is an example of this.
82.
Miss Marshall told us that, during her final speech, she had made the point that T must have known about the sexual abuse committed by L. She described the point to us a strong one and pointed to some evidence to support the allegation that B. knew that her partner was abusing children.
83.
Using the language of
the 2003 Act
, the prosecution was relying on B.’s bad character as demonstrated by her knowledge that L was sexually abusing children and not taking steps to prevent it, as showing her propensity to assist the abuse of L by L. That provided evidence, so the prosecution would invite the jury to accept, to support L’s evidence that B. had taken part in the rape by L of L.
84.
Miss Marshall submitted that no application to adduce this evidence was required because of the definition of bad character in
section 98(a)
of
the 2003 Act
. We are not certain that that is right. Whether that is right or wrong, the failure, in this case, to raise the issue resulted in the jury having no directions at all on this matter. It is clear to us that, at least in this case, the jury would need considerable guidance if they were minded to follow the approach being suggested to them by the prosecution. Although there was some evidence, as submitted by Miss Marshall, that B. did know what L was doing to children, there was material to contradict that. For example not only had B. denied any such knowledge in interview, but there was no evidence that L had abused any child at C Road other than on this occasion. Lord Gifford drew our attention to parts of the evidence of three of the victims (V, J and R) which supported the proposition that B. did not know that L was abusing children. Courts are very familiar with cases where abusers by various means prevent other family members from discovering what they are doing.
85.
Before they could use the approach being suggested by the prosecution, the jury would needed to be reminded of the evidence dealing with her state of mind, the jury would have to be told that that they had to be sure that B. knew that L was abusing children and took no steps to prevent it when able to do so and the jury would need guidance as to how they could use that finding in reaching a verdict on count 10 as against B..
86.
If the jury had been directed in the way that they should have been, we cannot say that the verdict would have been the same. The verdict is therefore unsafe and the conviction quashed.
87.
It follows that we dismiss the appeal of C but allow the appeal of T. | ```yaml
citation: '[2010] EWCA Crim 72'
date: '2010-01-29'
judges:
- LORD JUSTICE HOOPER
- MR JUSTICE WYN 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}
======
| 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.
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
CASE NO 202201773/A3
[2022] EWCA Crim 1157
Royal Courts of Justice
Strand
London
WC2A 2LL
Friday 29 July 2022
Before:
LADY JUSTICE CARR DBE
MR JUSTICE FRASER
THE RECORDER OF LEEDS
HIS HONOUR JUDGE KEARL QC
(Sitting as a Judge of the CACD)
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
REGINA
V
RAYMOND ELLIS
__________
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)
_________
MISS S PRZYBYLSKA
appeared on behalf of the Attorney General
MR M KELLET
appeared on behalf of the Offender
_________
J U D G M E N T
LADY JUSTICE CARR: 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.
Introduction
1.
We have before us an application by Her Majesty's Attorney General for leave to refer a sentence on the ground that it is unduly lenient. We grant leave.
2.
The offender is Raymond Ellis, now 63 years old. He was convicted on his guilty plea of a single offence of indecent assault, contrary to section 14(1) of the Sexual Offences Act 1956. On 13 May 2022 at Bristol Crown Court he was sentenced by Mr Recorder Bromige to five years' imprisonment and made the subject of an indefinite notification requirement.
3.
The conviction arose out of events that took place in 1987. The victim was then only 17 years old. Ellis violently assaulted her, dragged her to a remote location, tied her up with her underwear and forced her to perform oral sex on him, ending only when he ejaculated into her mouth. He left her tied up. In 2019 the case was reviewed and DNA extracted from a sample taken from the victim. The profile was a match for Ellis.
4.
What is argued by the Attorney General is that the reduction applied by the judge to reflect the previous maximum term for the offence of 10 years rendered the sentence unduly lenient.
The facts
5.
The offence took place on the night of 15 March 1987. The victim had been out at a public house with friends. She missed her bus home and decided to walk. Ellis followed her. She realised that she was being followed and so picked up her pace, but Ellis kept up. She began to run, losing one of her stiletto shoes. Ellis picked the shoe up and chased her. He caught up with her and hit her in the face with the shoe, loosening one of her teeth and causing significant bleeding.
6.
Ellis grabbed the victim and dragged her down an alleyway between two houses, through a garden and into an isolated area. He told her to take off her underpants which he then used to tie her legs together. He told her that she would have to "do things". He pulled up her skirt and her bra. She asked if he was going to kill her. She said she was 15 years old, in the hope this would change her attacker's mind. But Ellis was undeterred. He pushed her to the ground and he stood over her. He told her to suck his penis or he would hurt her. She did as she was ordered. He penetrated her mouth for up to 10 to 15 minutes until he ejaculated. He then ran off leaving the victim still tied up. She had never given oral sex to anyone before.
7.
The victim freed herself and ran until she found a telephone box, but she was still frightened that Ellis would follow her. She called the police and waited until they came. She was examined by a doctor and samples were taken from her. She gave a statement to the police. The police were unable to identify her attacker at the time but they retained her jacket which bore a semen stain.
8.
As we have indicated, in 2019 the case was reviewed. The jacket was examined. A DNA profile was obtained from the semen stain and it matched Ellis's profile. Ellis was arrested and interviewed under caution. He said that he had suffered brain damage and had no memory at the relevant time. He submitted a prepared statement in which he denied the offence and then made no comment.
9.
Ellis had 16 convictions for 38 offences, including for an offence of indecency committed in 1977 in which he had attacked another girl in an alleyway and also forced her to perform oral sex on him. He had also been convicted of assaulting a woman with intent to rob in 1983 in the course of which offending he had kicked the woman in the head and the stomach. He had no convictions for sexual offences post-dating the offence in 1987, but at the time of the instant offence in 1987 he was subject to a probation order that had been imposed in September 1986 for an offence of burglary.
10.
Ellis repeated to the author of a pre-sentence report that he could not remember the offence because of a brain injury in 1997, but had accepted his guilt on the basis of the DNA evidence. He was recorded as expressing a good level of insight into how his offending could have affected the victim. He said that he felt deeply ashamed and, since becoming aware of the matter, had felt overwhelmingly distressed. He was currently residing in a care home. The author expressed the view that the imposition of a custodial sentence would have a profound effect on his current support system. Re-settlement would depend on future social service placement.
11.
Dr Raviraj, a consultant psychiatrist, provided a report to the court dated 10 November 2021 confirming that Ellis had indeed suffered a traumatic brain injury in 1997 after an assault. He was suffering from a schizo-affective disorder and had had manic psychotic and depressive spells. He had been admitted to hospital on a number of occasions over the last decade and on occasion had attempted to take his own life. However, he was well when medicated, though would rapidly relapse when he stopped taking medication. His difficulties were said to be exacerbated by substance misuse. The most likely diagnosis in Dr Raviraj's opinion was that Ellis had paranoid and emotionally unstable personality traits post head injury. He was at the time however in remission, supported by a community psychiatric nurse, and stable whilst taking anti-psychotic and mood-stabilising medication.
12.
The victim provided an impact statement. The offence had blighted her life. She felt that it had ruined her chances in life. The offence had been extremely traumatic and frightening. She had been only 17 at the time and was just beginning a social life with her friends. After the attack she moved back to her mother's house, lost touch with her friends and stopped going out. In her words she became "a shell of a person". Her attendance at college suffered and she failed to achieve the expected results academically. Her career prospects suffered and she now worked as a cleaner. She had begun to suffer anxiety and depression and to use alcohol to make herself feel better. She had convictions for offences that she had committed in drink as a result. She was on anti-depressants and she still slept badly.
The sentence
13.
In sentencing, the judge referred to the significant impact of the offence on the victim. He agreed with the parties that the offence if committed now (i) would be charged as rape under section 1 of the Sexual Offences Act 2003, given that it involved non-consensual penetration of the mouth with a penis, and (ii) would fall into Category 2B for rape as set out in the Sentencing Council Guideline for Sexual Offences ("the Guideline") on account of the level of violence, the abduction and the particular vulnerability of the victim.
14.
Category 2B offending carries a starting point of eight years' custody with a range of seven to nine years. The judge found the starting point after trial would be above the Guideline range bearing in mind the weight of the aggravating factors including the similar previous conviction, ejaculation and the use of a weapon to inflict violence. He said that there was little mitigation other than the guilty plea. The sentence after trial in his judgment would have been nine years and four months, had the offence been committed after 2003 and charged as rape. The judge then reduced that sentence to six years and eight months' imprisonment to reflect the differing maximum sentences for rape (life imprisonment) and indecent assault (10 years). He stated as follows:
"So, the sentence after trial on the rape guidelines would have been 9 years and 4 months' imprisonment. Reminding myself that the maximum sentence for indecent assault is 10 years' imprisonment, the sentence that would have been imposed after trial for the indecent assault would have been 6 years and 8 months in custody."
15.
He then applied a 25% reduction for guilty plea, notwithstanding that that plea had not been entered at the pretrial preparation hearing. Ellis's mental health had meant that it was reasonable to explore fitness to plead and his amnesia made the instruction of a DNA expert reasonable and necessary. Thus the overall sentence was reduced to one of five years' imprisonment. The judge found that Ellis was not dangerous, relying on his limited offending history in recent years and the impact of the brain injury.
Submissions
16.
For the Attorney General, Miss Przybylska takes no issue with the categorisation by the judge of the offence under the Guideline for the modern offence, nor with the aggravating factors identified. Nor does she take any issue with the judge's approach to mitigation and guilty plea. The focus of the Reference is on the judge's approach to the calibration performed in order to reflect the difference between the maximum sentence for rape and for indecent assault. It is submitted that, although the sentencing exercise as a whole was plainly a careful one, the judge's reduction of two years and eight months (just under 30%) on account of the differing maximum sentences was reached in consequence of a misunderstanding of the purpose of such a reduction. In circumstances where the offence was at the upper end of seriousness, it was not unjust to impose a sentence at the upper end of the available sentencing range. In the particular circumstances of this case it is said that the judge should have imposed no reduction at all. The authorities, emphasises Miss Przybylska, do not require a reduction for calibration in every case. This was also a single offence rather than a series of offences. Thus the over-arching submission for the Attorney General is that the sentence imposed in this case was outside the range reasonably open to the judge on the facts and was unduly lenient.
17.
For Ellis, Mr Kellet submits that the judge properly applied the Guideline in a measured and reflective manner. He was faced with the difficulty, so says Mr Kellet, that the maximum sentence that the judge could impose was one of seven and a half years, given Ellis' guilty plea. Mr Kellet suggests that the individual features of this offending could have been worse. Further, in terms of mitigation Mr Kellet relies on Ellis' mental disorder, albeit not linked to the commission of the offence. In written submission, Mr Ellis suggested that the judge "inevitably" reduced the term of seven and a half years to reflect Ellis's mental difficulties. However, during the course of oral submissions and having been taken to the transcript of the sentencing remarks, Mr Kellet accepts that the judge in fact made no reduction, inevitable or otherwise, to reflect Ellis' mental difficulties.
18.
Mr Kellet maintains the submission that this was a difficult sentencing exercise with very little room to manoeuvre. The extent to which the judge went down from the seven-and-a-half year maximum, as he puts it, cannot be said to be a gross error or a substantial departure from the norms of sentencing. It may have been lenient, but it was not unduly so.
Discussion
19.
References under section 36 of the Criminal Justice Act 1988 are made for the purpose of the avoidance of gross error, the allaying of widespread public concern at what may appear to be an unduly lenient sentence and the preservation of public confidence in cases where a judge appears to have departed to a substantial extent from the norms of sentencing generally applied by the courts in cases of a particular type. We remind ourselves that the threshold for appellate interference is a high one. A sentence must be not only lenient but unduly lenient.
20.
The Sentencing Council has provided guidance on the sentencing of historic sexual offences. In summary:
i) The offender must be sentenced in accordance with the sentencing regime applicable at the date of sentence.
ii) The sentence is limited to the maximum sentence available at the date of the commission of the offence.
iii) The court should "have regard to" any applicable sentencing guidelines for equivalent offences under the Sexual Offences Act 2003.
iv) The court should not seek to establish the likely sentence had the offender been convicted shortly after the date of the offence.
21.
This court has considered this guidance on a number of occasions, including in
R v Clifford
[2014] EWCA Crim. 2245;
R v Forbes
[2016] EWCA Crim 1388, [2016] 2 Cr.App.R (S) 44 and
R v DL
[2020] EWCA Crim 881, [2021] 1 Cr.App.R (S) 19. The following general observations can be drawn from the authorities:
i) The court is entitled to reflect modern attitudes to historic offences and to look to modern sentencing guidelines. Where the court looks to a modern offence containing equivalent elements to the historic offence and where the maximum under the Sexual Offences Act 2003 is significantly higher, then the task of the judge will be to make due allowance for that.
ii) The court must use the relevant guideline applicable at the date of sentence in a measured and reflective manner in order to arrive at the appropriate sentence. This is why the Guideline uses the phrase "have regard to".
iii) Thus, a mathematical or overly mechanistic approach is to be avoided. Rather, measured reference to the Guideline is to be made causing the court to reflect the previous maximum sentence as part of the composition of the sentence based on current guidelines.
iv) The matter is to be tested by a consideration of whether the overall sentence imposed is excessive and disproportionate for the offending revealed, taking into account modern sentencing practice. What must be achieved is a proper calibration which reflects the statutory maximum available at the time of the offending.
22.
As we have recorded, the judge reduced the sentence that he considered would apply under the Sexual Offences Act 2003, namely nine years and four months' imprisonment, to one of six years and eight months’ imprisonment before credit for guilty plea. In doing so, rather than considering whether an overall sentence of nine years and four months’ imprisonment would be excessive and disproportionate to the offending, taking into account modern sentencing practice, he appears to have asked himself what the sentence after trial in 1987 would have been. That is precisely the approach that the Guideline eschews. The seriousness of the offence assessed by the culpability of the offender and the harm caused or intended is the main consideration for the court.
23.
Equally, the approach adopted by Mr Kellet, namely to proceed on the basis that the relevant maximum sentence for the purpose of the calibration exercise was seven and a half years is flawed and rejected correctly in our judgment by the Attorney General. The relevant maximum sentence was 10 years’ imprisonment.
24.
This was an extreme instance of a single offence of indecent assault involving the oral rape of a teenage girl in the context of a violent abduction which blighted the victim's life with long-lasting adverse consequences. Putting it another way, it was a most serious offence and a most serious example of indecent assault.
25.
By reference to the Guideline, it was Category 2B offending, carrying a range of seven to nine years’ imprisonment and a starting point of eight years. The Category 2 features that were both the sustained nature of the incident and the use of violence and the threats of violence.
26.
There then fell to be added a very significant number of aggravating factors. We refer to ejaculation, the use of a weapon, physical injury, restraint, the targeting of a lone victim late at night dragged into an alleyway and through an alleyway. Beyond that, and of real significance in our judgment, was the existence of Ellis' previous convictions and the fact that this offending was committed during the currency of a probation order. There was then also the very severe impact on the victim.
27.
Specifically, unlike the position in
DL
(see in particular the remarks at [24]), the conduct here was at the very highest level. This was a type of indecent assault which readily justified a maximum sentence. A term of 10 years’ imprisonment before credit for guilty plea would not be either excessive or disproportionate, taking into account modern sentencing practice and carrying out the proper and necessary calibration exercise.
28.
Like the judge, we do not consider that any further reduction fell to be made by reason of Ellis' subsequent mental health problems. It is common ground that they did not serve to lessen Ellis's culpability. There is nothing in the material that we have seen - and we gave Mr Kellet every opportunity to take us to anything that we might have overlooked - to suggest that Ellis' condition cannot be managed properly in prison. Indeed a recent letter from a senior officer at HMP Dartmoor confirms that Ellis is coping and that his condition is being managed appropriately on medication. He is not unfit to serve in prison. The loss of his support environment was always inevitable on the basis that on any view a significant custodial sentence would be passed. Additionally, we bear in mind that Ellis had the benefit of a 25% discount for guilty plea because of his mental health complications.
29.
In all these circumstances, as indicated, an overall sentence of 10 years’ imprisonment before credit for guilty plea would have been entirely appropriate. After applying a 25% discount for guilty plea, a final term of seven-and-a-half years’ imprisonment would then be reached. Set against these conclusions (and even by reference to the term of nine years and four months’ imprisonment identified by the judge), it can readily be seen that a custodial term of six years and eight months before credit for guilty plea, resulting in a final sentence of five years’ imprisonment, was not only lenient, but unduly so.
30.
For these reasons, we will allow the Reference. The sentence of five years’ imprisonment will be quashed and in its place will be substituted a term of seven and a half years’ imprisonment. Ellis will not be released on licence until two-thirds of that sentence have been served. All other elements of the sentence remain undisturbed.
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: '[2022] EWCA Crim 1157'
date: '2022-07-29'
judges:
- LADY JUSTICE CARR DBE
- MR JUSTICE FRASER
``` |
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) 2102
No: 201903210 A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 7 November 2019
B e f o r e
:
LORD JUSTICE SIMON
MR JUSTICE WARBY
HIS HONOUR JUDGE THOMAS QC
(Sitting as a Judge of the CACD)
R E G I N A
v
NATHAN JOHN JOSEPH WALDRON
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 H Khattak
appeared on behalf of the
Appellant
J U D G M E N T
LORD JUSTICE SIMON:
1.
On 6 June 2019 the appellant (now aged 28) pleaded guilty before the Birmingham Magistrates and was committed to the Crown Court for sentence. On 8 August he was sentenced by His Honour Judge Henderson as follows: offence 1, dangerous driving, contrary to
section 2
of the
Road Traffic Act 1988
, a term of 10 months' imprisonment; offence 2, driving a motor vehicle without a licence, no separate penalty, licence endorsed and offence 3, using a vehicle without insurance, no separate penalty, licence endorsed. For a Bail Act offence the sentence was a term of 14 days' concurrent. The
total sentence was therefore a term of 10 months' imprisonment.
2.
He was disqualified from driving for 2 years and required to take an extended driving test with an extension to the disqualification period of 5 months to reflect the fact that the
disqualification should not begin until his release from custody.
3.
He appeals with leave of the single judge.
4.
On 21 May 2019, at around midday, the appellant had been driving a Renault Megan
along Ravenshill Road in Birmingham. Police officers noticed that the vehicle was in a state of despair and, when the appellant became aware that they were interested in his vehicle and had activated their lights and sirens, he sped away. He drove at speeds at around 50 miles an hour on roads which had a speed limit of 30 miles per hour, undertook a number of motor vehicles, turned corners without indicating and drove down
the wrong side of the street.
5.
The prosecutor in opening the case referred to him driving down the wrong side of the
"carriageway" and this later led to a misapprehension on the part of the judge.
6.
After a short period of time the vehicle collided with some street furniture and the appellant was detained. He immediately confirmed that the vehicle was not his but that it was not stolen. He accepted that he should not have been driving the vehicle and said that he had had a panic attack when he had seen the police officers. He was arrested and
in a subsequent interview admitted all the charges made against him.
7.
The appellant had three convictions for nine offences spanning April 2008 to June 2014. There were historic cases of robbery and attempted robbery and a breach of a
non-molestation order for which in each case a custodial sentence had been imposed.
8.
A short form pre-sentence report was prepared on 11 July, which recorded the appellant saying that the car he had been driving had belonged to a friend who had given him the keys when they got into the vehicle. He described driving for only a short period before seeing the police vehicle and panicking. The appellant made admissions to the offences and appeared remorseful. He described his behaviour as "stupid" as well as "dangerous and wrong". He had demonstrated a good understanding of the potential consequences of
his behaviour.
9.
There had been a referral to Liaison and Diversion Services ("LDS") for assessment as to
his suitability for a low level mental health treatment requirement.
10.
The pre-sentence report set out some of the difficulties in the appellant's personal life
resulting in a fire that left him homeless.
11.
The author of the report concluded that the court might wish to consider the imposition of
an 18-month community order. An accredited programme requirement was also
considered appropriate alongside a Rehabilitation Activity Requirement. The appellant
had been assessed as suitable for an unpaid work requirement as a punitive element.
12.
A LDS report dated 30 July 2019 made recommendations to support the appellant in relation to what were described as "a gamut of social needs": suitable accommodation; access to benefits; photo ID; bank account and access to the Examination Board where he
had taken his GCSEs.
13.
The judge remarked in his sentencing remarks that he had to sentence the appellant for an offence of dangerous driving as well as a Bail Act offence that led to the appellant failing to appear when he had been due to surrender to bail. The judge said he had read the pre-sentence report and the LDS court report, and accepted what was said in those. He also remarked that it had been an awful life that the appellant had had to cope with. Nevertheless, the offence could only be met with a custodial sentence. The judge then
said this:
This was a desperately serious incident of bad driving. It was in the middle of the day when there would have been people about. It involved you going down the wrong side of a dual carriage with the risk of a very high speed crash. Most weeks in this court we get cases that start like yours but end up with people dead, so I am afraid, that despite all that I have read and despite the sympathy that I have for you, I think this has to be a prison sentence that you will serve. I have reduced it because of the factors that I have discussed and I have given you full credit for your plea because you did plead guilty to everything at the first opportunity.
14.
The sentences passed were the sentences we have referred to.
15.
In the grounds of appeal Mr Khattak submitted that in the circumstances of the case, which included the appellant's prompt pleas and remorse, the judge should not have passed a sentence of immediate imprisonment and the sentence should have been
suspended, or alternatively, a shorter sentence should have been imposed. The appellant had strong mitigation which reinforced the submission that the sentence should have been suspended. It was clear that he would lose complete contact with his three children, who
have been removed from his care and would be separated if he were sentenced to immediate imprisonment. He has had no contact with them but retains contact with the Children Services allocated worker. An immediate sentence of imprisonment had the consequence that he would not be able to keep contact with the allocated worker and his
children would be placed with foster parents.
16.
It is clear that the use of the archaism "carriageway" in the prosecution opening led to a misunderstanding by the judge. The appellant had not driven on the wrong side of a dual carriageway (on any view a highly dangerous piece of driving) he had driven on the wrong side of the road, dangerous in itself but qualitatively different. In our view the features of the dangerous driving were sufficiently serious to warrant a custodial sentence. But the sentence should have been one of 6 months and not 10 months. The Sentencing Council Guidelines on the Imposition of Community and Custodial Sentences provides a double test to be applied weighing factors against and for suspending a custodial sentence. The factors indicating that it would not be appropriate to suspend a custodial sentence are first, the offender presenting a risk and danger to the public; second, appropriate punishment that can only be achieved by immediate custody and third, a history of poor compliance with court orders. We bear in mind that the maximum
sentence for the driving offence is 2 years.
17.
In our view none of these factors pointed ineluctably to an immediate custodial sentence,
particularly bearing in mind the nature of the driving as it now appears.
18.
The sentencing judge accepted what was said in the two reports: the risk of harm to the public was assessed as medium and it might be reduced. In these circumstances we have concluded that the appropriate punishment could not only be achieved by immediate
custody.
19.
The factors indicating that it may be appropriate to suspend a custodial sentence are first, a realistic prospect of rehabilitation; second, strong personal mitigation and third, immediate custody resulting in significant harm and harmful impact on others. All these
factors weighed to a greater or a lesser extent in favour of suspending the custodial term.
20.
The pre-sentence report referred to concerted efforts to turn his life around and combined with the LDS report suggested a prospect of rehabilitation, and that immediate custody
had a potential and potentially harmful impact on the appellant's children.
21.
In those circumstances, we have concluded not only that the sentence should be one of 6 months but it should be suspended for 12 months with up to 20 days of a Rehabilitation Activity Requirement. The disqualification period will be reduced from 2 years 5
months to 2 years.
22.
LORD JUSTICE SIMON: Mr Waldron, I hope you have understood that we have
allowed your appeal to this extent. The custodial term is reduced from 10 months to 6
months and we are going to suspend that sentence for 12 months, with a Rehabilitation Activity Requirement of up to 20 days, so that when the documents come through from the Court of Appeal office you will be released from custody. But the consequence of the
suspended sentence will be that if you commit an offence during the period of suspension, you may be brought back to the Crown Court and you will be dealt with for
this offence as well as any other. Do you understand?
23.
THE APPELLANT: Yeah, I understand.
24.
LORD JUSTICE SIMON: Very good. | ```yaml
citation: '[2019] EWCA Crim 2102'
date: '2019-11-07'
judges:
- LORD JUSTICE SIMON
- MR JUSTICE WARBY
- HIS HONOUR JUDGE THOMAS 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 2414
Case No:
2005/04035/D2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SWANSEA
Judge Morton
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
20/10/2006
Before :
LORD JUSTICE THOMAS
MRS JUSTICE DOBBS
and
THE RECORDER OF NEWCASTLE
(sitting as a Judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
Respondent
- and -
David Nigel John Meachen
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Kevin Riordan (
instructed by
CPS
) for the
respondent
Robert Dudley (
instructed by
Brown Turner
) for the appellant
Hearing dates: 28 February and 30 June 2006
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Thomas:
1.
The appellant was sent for trial in the Crown Court at Swansea (before H.H.J.Morton and a jury) on an indictment charging him with rape (count 1), indecent assault contrary to
s.14(1) of the Sexual Offences Act 1956
(count 2), causing grievous bodily harm with intent contrary to
s.18 of the Offences against the Person Act 1861
(count 3) and in the alternative, causing grievous bodily harm contrary to
s.20 of the Offences against the Person Act 1861
(count 4)
2.
The trial commenced on 19 May 2003. On 22 May 2003, at the end of the prosecution case, the judge directed an acquittal on the count of rape on the basis that there was insufficient evidence of penile penetration. He also gave a ruling to the effect that there was no defence in law to Counts 2 and 4 in view of the decision of this Court in
Emmett
[1999] EWCA Crim 1710. The appellant changed his plea to guilty in relation to Count 2 (indecent assault contrary to
s.14(1) of the Sexual Offences Act 1956)
and Count 4 (inflicting grievous bodily harm contrary to
s.20 of the Offences against the Person Act 1861)
. The trial proceeded on Count 3 (causing grievous bodily harm with intent contrary to s.18 of
the 1861 Act
). He was convicted by the jury.
3.
On 23 May 2003 the appellant was sentenced by the judge to 10 years imprisonment for causing grievous bodily harm with intent and to a concurrent sentence of 8 years for indecent assault.
4.
An application for leave to appeal against sentence was refused by the single judge and also by the Full Court
[2003] EWCA Crim 2890
. The appellant instructed new solicitors and counsel and applied in July 2005 for leave to appeal out of time against his conviction over 2 years after his conviction. The single judge granted leave and the necessary extension of time.
5.
At the first hearing of the appeal, it was not clear what had transpired between the appellant and counsel who had represented the appellant during the trial; the hearing was therefore adjourned to enable that counsel to set out his recollection for the court.
6.
At the conclusion of the second hearing, we allowed the appeal against the convictions on Counts 2 and 4 and the orders made consequential upon his conviction on Count 2, but dismissed the appeal in relation to Count 3, the offence of causing grievous bodily harm with intent for reasons to be given later.
The issue at the trial
7.
On the evening of 4 August 2002 the complainant (a 37 year old female) met the appellant. They returned to the complainant’s address and he then left in a taxi at 5.10 a.m. the following morning.
8.
It was the prosecution case that the appellant had administered to the complainant liquid gammahydroxybutyrate (GHB) (popularly known as the “date rape” drug) which was not then a controlled drug. The appellant then had intercourse with her anally. He inserted a large object into her anus whilst she was unconscious; this caused the complainant very serious injuries.
9.
It was the defence case that both the appellant and the complainant had consented to both of them taking GHB; that the appellant with the complainant’s consent had used his fingers to penetrate her anus and she had moved vigorously up and down on them. He was unaware of the complainant’s injuries when he left her address at 5.10am.
The evidence
10.
On the evening of 4 August 2002, having been out drinking with her boyfriend for the day, the 37 year old complainant went to Carmarthen Town Football Club where she met the appellant, who was previously unknown to her. They started a conversation. They left together and went back to the house of the complainant’s niece. Then, shortly after midnight, they went by taxi to the complainant’s home a mile away.
11.
The complainant had no recollection of events after leaving her niece’s house save that the appellant was with her at one point on the sofa in her living room. The appellant left her home by taxi at 5.10am that morning. When the complainant awoke around 7am she was in immense pain and was suffering considerable blood loss from her peri-anal area. She went next door to a neighbour and her GP was consulted. She was initially discharged from hospital, but a subsequent hospital examination revealed that she had extensive bruising of the peri-anal area, together with acute splitting of the anal canal area extending into the rectum. The injury was so severe that a colostomy was performed and she was fitted with a colostomy bag.
12.
The Consultant Surgeon indicated that the most likely cause of the injury was “fisting” or penetration by a blunt object such as a broom handle or an un-lubricated can.
13.
The appellant was arrested later that day. He admitted being in the complainant’s company and returning to her house. He said they had kissed, cuddled and fondled each other. He denied having intercourse with her, either vaginally or anally.
14.
In a telephone conversation between the appellant and the complainant between her hospital visits and before she knew the extent of her injuries, the complainant asked the appellant whether they had had sex the previous evening. The appellant replied that she had wanted it or enjoyed it. When the complainant said, “No, we didn’t”, the appellant then replied, “Ok then we didn’t”.
15.
Items of clothing were recovered from the appellant’s home. Blood staining was detected on his underpants and trousers, which matched the DNA profile of the complainant. A bottle of liquid was subsequently found in the appellant’s vehicle. It contained GHB which was also detected in the complainant’s urine sample.
16.
The appellant was finally re-arrested in December 2002, when, in interview, he answered “no comment” to all questions put to him.
The appellant’s evidence
17.
The appellant’s evidence, given after the ruling to which we have referred, was that he had met the complainant in a club and described her as “tipsy or high on drugs”. He asked the complainant if she was on drugs and she said, “Why. Have you got anything?” The complainant then asked him if he could get her some that night. He told her he used “Ecstasy, liquid ecstasy or salty water” – which is GHB – “and cannabis”.
18.
They went to the complainant’s niece’s house and it was clear that her niece did not want them using drugs in her house. The complainant asked him if she could take alcohol with GHB and he told her what the effects were. They finally agreed that he would obtain some drugs, so he went out and bought a Lucozade bottle with some two inches of GHB in it for £5 and went back to the niece’s house.
19.
When he arrived back the complainant was asking him whether he had been able to get anything. She then got her things together and they left her niece’s house. They decided to get a taxi back to the complainant’s house and whilst waiting for the taxi, both took half a cupful of the GHB.
20.
Back at the complainant’s house they became sexually intimate. The complainant was an active and willing participant. She enjoyed penetration of her vagina and anus with his fingers. The complainant ended up astride the appellant with three of his fingers in her anus and his thumb in her vagina. The complainant was thrusting up and down on his fingers for some four or five minutes giving every sign of reaching a climax. She eventually went to her bedroom. He noticed some blood on his fingers and assumed that the complainant was having her period. He asked if this was correct and she said, “It’s only a bit, it doesn’t matter”. He went into her bedroom and noticed she had taken some more of the GHB and he decided to finish off the bottle. There was a little kissing and fondling after that. He stayed until 5am when a taxi arrived to pick him up. He did not know that the complainant was injured when he left her house.
21.
He phoned the complainant the next day to ask her out again. The complainant told him she had been to see a doctor and had been advised she had fibroids. She also asked him whether they had done anything the previous evening. He asked, “What do you mean? You enjoyed yourself”. She asserted that nothing happened and so he said, “Fine”.
22.
On arrest, the appellant said he had met the complainant and kissed and cuddled her. He had phoned her and she had said she was suffering from fibroids. Although he had taken more of the GHB than the complainant, he had a reasonably good memory of what had happened that night unlike the complainant.
Expert evidence
23.
Both the prosecution and defence called expert evidence from highly qualified surgeons as to the cause of the injury. The defence expert gave evidence that the injuries to the complainant could have been caused by the vigorous moving up and down on the appellant’s three fingers inserted into her anus in the manner suggested by the appellant. The prosecution expert’s evidence was that it was not possible for the injury to have been caused in that way and that it had been caused by a fist or blunt instrument.
The appeal
24.
The appeal involved two distinct issues:
i)
Were the convictions on Counts 2 and 4 by reason of the guilty pleas safe, as they followed from the ruling made by the judge?
ii)
Was the conviction by the jury’s verdict on Count 3 safe, even if the convictions on Counts 2 and 4 were unsafe?
25.
We shall first consider the issue in relation to Counts 2 and 4.
I.
Counts 2 and 4
The appellant’s case
26.
As we have already noted, the judge was asked to make his ruling at the end of the prosecution case. At that stage the material part of the defence was set out in the defence statement as:
a)
“He fondled her vagina and inserted three fingers into her back passage at her request. She was moving up and down on his fingers.
b)
He denies Count 4 on the basis that he did not act unlawfully”.
It was clear from the report of the expert who was to be called on behalf of the Defendant and the cross examination of the expert who had been called on behalf of the prosecution that the cause of the really serious injury suffered by the complainant was in issue.
27.
Counsel for the defendant (who was not counsel who represented the appellant on this appeal) asked the judge to indicate his preliminary views, in the light of the decision of this court in
Emmett
(to which we refer at paragraph ii) below)
,
on whether the consent of the victim could be a defence to the offence under
s.20 of the Offences against the Person Act 1861
(Count 4) or to the offence of indecent assault (Count 2). Counsel accepted in the course of argument before the judge that
Emmett
was indistinguishable from the present case and he could therefore not properly argue that, as consent depended upon the nature or severity of the injuries, in view of the severity of the injuries, that consent could be a defence as the activity was unlawful. The defendant would plead guilty, though it would remain his case that the sexual activity was consensual.
28.
The Judge ruled that consent could not be a defence where either actual bodily harm was caused or, adopting an objective test, what was done revealed a risk of more than transient or trivial injury. He made clear that, if the appellant gave evidence in accordance with his defence statement, he would rule in this way, following the analysis of
Brown
(to which we refer in paragraphs 32 and 33 below) made by the Court of Appeal in
Emmett.
Following this ruling, the appellant pleaded guilty to Counts 2 and 4.
29.
It was contended before us, that the judge was incorrect in making that ruling. At that stage the defendant had not given evidence; this was, unlike
Emmett,
a case where it was the appellant’s case that he did not intend to cause injury; moreover at that stage there was no acceptance by the appellant on his account of what had happened that he intended or foresaw any bodily injury, albeit minor, being caused by his actions, namely the insertion of the three fingers into the complainant’s anus. In the absence of acceptance by the defendant that he intended some injury or foresaw the risk, the judge could not have ruled that there was no defence in law to the offence under s.20 or the offence of indecent assault under s.14(1). There was, of course, evidence on which a jury could at the appropriate time have concluded that he had such an intention or foresaw such a risk, but that was a question for the jury at the conclusion of the summing up.
30.
In the light of that contention, it was necessary to ascertain from counsel who had represented the appellant at trial whether he had considered the issue of whether the appellant had foreseen any bodily injury, however minor, being caused in the manner suggested by the appellant, namely by the insertion of 3 fingers into the complainant’s anus and to ascertain the extent of the discussions which counsel had with the appellant prior to his change of plea. Counsel responded to the Court’s enquiry by saying that he could not recall what was discussed with the appellant some three years earlier and the notes of his conferences with the appellant did not assist. Given the lapse of time, no criticism can attach to counsel.
Our approach to the ruling on Counts 2 and 4
31.
We proceed therefore to consider the appeal on Counts 2 and 4 on the basis that the defendant’s case was that, although he accepted that the injuries in fact had been caused by him, (1) the complainant had consented to the insertion of three fingers into her anus and that he had neither intended nor foreseen the risk of injury from that and (2) the injury had been caused by the complainant’s vigorous moving up and down on his fingers and not by the insertion of his fist as was the prosecution case.
32.
It is well established that the deliberate or reckless infliction of actual bodily harm on another person without good reason is unlawful. Consent can be a good reason, but, as is clear from the speeches in
Brown
[1994] A.C. 212 (the sadomasochist case) and in particular that of Lord Mustill, there is no general theory of consent to violence and no step by step analysis of the cases can be sustained.
33.
In
Brown
where those engaged in sadomasochistic activities had pleaded guilty to offences under s.47 and s.20 after a ruling by the judge, the issue for decision was whether the prosecution had to prove lack of consent on the part of the person harmed before guilt could be established under s.47 or
s.20 of the Offences Against the Person Act 1861
. It was
decided by a majority that the infliction of some bodily harm, even with consent, was unlawful, unless the case fell within exceptions established by the court as a matter of public policy. They rejected the argument that there could be any distinction between consent to actual bodily harm and really serious bodily injury. As Lord Jauncey, with whom Lord Lowry agreed, said at page 244
“ I prefer the reasoning of Cave J. in
Coney
and of the Court of Appeal in the later three English cases which I consider to have been correctly decided. In my view, the line properly falls to be drawn between assault at common law and the offences of assault occasioning actual bodily harm created by
s.47 of the Offences Against the Person Act 1861
, with the result that consent of the victim is no answer to anyone charged with the latter offence or with a contravention of s. 20 unless the circumstances fall within one of the well known exceptions such as organised sporting contest and games, parental chastisement or reasonable surgery.”
In other words, consent, outside the excepted cases is no defence to a charge under s.47 or s. 20, where the ingredients of those offences are otherwise made out. The third member of the majority, Lord Templeman based his view upon the actual or potential risk of harm.
34.
The issue of consent in cases of assault was not before the House. It was, however common ground, in contradistinction, that consent was a defence to a charge of indecent assault – see the speech of Lord Mustill at pages 268-9 to which we will refer at paragraph i) below.
35.
It is therefore, we think, important to look at the issue separately in relation to Count 4 (the offence under s.20) and Count 2, the offence of indecent assault, although before the trial judge no distinction was drawn between the two offences.
Count 4: s.20 of the Offences against the Person Act
36.
In considering the appellant’s contention in relation to the offence under
s.20 of the Offences against the Person Act 1861
, it is, we think helpful to consider the application of the decision in
Brown
in three subsequent cases:
i)
In
Wilson
[1996] 2 Crim. App. R. 241, the appellant was convicted of an offence under s.47. He had, with his wife’s consent, branded his initials onto her buttocks with a hot knife. In allowing the appeal the court said:
“There was no aggressive intent on the part of the appellant. On the contrary, far from wishing to cause injury to his wife, the appellant’s desire was to assist her in what she regarded as the acquisition of a desirable piece of personal adornment, perhaps in this day and age no less understandable than the piercing of nostrils or even tongues for the purposes of inserting decorative jewellery. In our judgment,
Brown
is not authority for the proposition that consent is no defence to a charge under
section 47
of the Act of 1861, in all circumstances where actual bodily harm is deliberately inflicted. It is to be observed that the question certified for their Lordships in
Brown
related only to a “sadomasochistic encounter”. However, their Lordships recognised in the course of their speeches, that it is necessary that there must be exceptions to what is no more than a general proposition. The speeches of Lord Templeman, Lord Jauncey, and the dissenting speech of Lord Slynn all refer to tattooing as being an activity which, if carried out with the consent of an adult, does not involve an offence under s. 47, albeit that actual bodily harm is deliberately inflicted. For our part we cannot detect any logical difference between what the appellant did and what he might have done in the way of tattooing. The latter activity apparently requires no state authorisation, and the appellant was as free to engage in it as anyone else. We do not think we are entitled to assume that the method adopted by the appellant and his wife was any more dangerous or painful than tattooing. There was simply no evidence to assist the court on this aspect of the matter.”
The trial judge was referred to this decision, but this was a case of intentional harm, and so of little assistance to the issue in the present appeal.
ii)
In
Emmett,
the defendant and the complainant had lived together and engaged consensually in what was described as “outré” sexual activity. There were two incidents which were the subject of charges under s.47 of
the 1861 Act
. In the first incident, the defendant deliberately sought to bring about the partial asphyxiation of the complainant by the placing of a plastic bag over her head; she lost consciousness and suffered sub-conjunctival haemorrhages. In the second incident, the defendant deliberately poured lighter fuel over her breasts and ignited it; the complainant suffered a burn injury. The defendant was convicted of offences under s.47, following a ruling by the judge that consent was no defence. Unlike
Wilson
, there was evidence that the activities in which they were engaged were dangerous and that the defendant was plainly aware of the dangers of actual bodily injury and, in the case of partial asphyxiation, grave danger of brain damage or death. In the circumstances, the court held that consent was no defence:
“Accordingly whether the line beyond which consent becomes immaterial is drawn at the point suggested by Lord Jauncey and Lord Lowry, the point at which the assault becomes assault occasioning actual bodily harm, or at some higher level, where the evidence looked at objectively reveals a realistic risk of more than transient or trivial injury, it is plain, in our judgment that the activities involved in by this appellant and his partner went well beyond that line. That learned judge, in giving his ruling said:
“In this case, the degree of actual and potential harm was such and also the degree of unpredictability as to injury was such as to make it a proper cause from the criminal law to intervene. This was not tattooing, it was not something which absented pain or dangerousness and the agreed medical evidence is in each case, certainly on the first occasion, there was a very considerable degree of danger to life, on the second there was a degree of injury to the body.”
With that conclusion, this Court entirely agrees.”
Again this was a case where the defendant was undoubtedly aware of the serious risk of serious injury. On the basis of the defence put forward by the appellant and the basis on which we have proceeded to consider the appeal, it is clear that there was a significant distinction between that case and the present case.
iii)
In
Barnes
[2004] EWCA Crim 3246
, [2005] Crim. L.R. 381, the defendant was convicted under s.20 of
the 1861 Act
in circumstances where, during a football match, he had tackled a member of the opposing side; it was the prosecution case that the tackle was late, unnecessary, reckless and high up the legs. In giving the judgment of the Court, Lord Woolf CJ set out the general principles applicable to the approach of the criminal law to organised sports. Although that is a very different factual context to the present appeal, we think it helpful to refer to two paragraphs:
“7. When no bodily harm is caused, the consent of the victim to what happened is always a defence to a charge. When at least bodily harm is caused, consent is generally irrelevant because it has been long established by our courts that, exceptional situations apart, as a matter of law a person cannot consent to having bodily harm inflicted upon him.
17. In the case of offences against the person contrary to ss. 18 and 20 of
the 1861 Act
, it is a requirement of the offence that the conduct itself should be unlawful….. In the case of an offence contrary to s. 20,
the 1861 Act
also requires the conduct to be inflicted “maliciously”. In that context, “maliciously” means either intending to cause some bodily harm (however slight) or causing the harm recklessly. (See
R v Cunningham
[1957] 2 Q.B. 396
). “Recklessly” in this context means no more than the defendant foresaw the risk that some bodily harm (however slight) might result from what he was going to do and yet, ignoring that risk, the defendant went on to commit the offending act. (See
DPP v Parmenter
[1992] 1 A.C. 699
). In a sport like football, anyone going to tackle another player in possession of the ball can be expected to have the necessary malicious intent according to this approach, and in the great majority of criminal cases, the existence of a malicious intent is not likely to be in issue. This being so, in many situations, as Lord Diplock pointed out in
R v Mowatt
[1968] 1 Q.B. 421 (at pages 426E to 427F), it will only confuse the jury to make unnecessary reference to the word “maliciously” and invite them to consider the improbability that the defendant did not foresee the risk. However this is a subject which it will be prudent for the trial judge to discuss with counsel before he starts his summing up.”
A comment on the decision in the Criminal Law Review observes in relation to paragraph 7 of the judgment:
“It is submitted that this is a more desirable approach. Following logically, when D intended to cause only an assault/battery with consent and caused actual bodily harm, the valid defence to the assault/battery at the heart of the actual bodily harm charge should also preclude liability.”
37.
Barnes
is the most relevant of these three cases, as it makes clear that the ingredients of the offence under s.20 must be proved by the prosecution, whether or not consent is in issue. Therefore, as it is an ingredient of the offence under s.20 that the harm or wound be inflicted “maliciously” in the
Cunningham
sense (as conveniently summarised in
Barnes)
, it is necessary for the prosecution to show that the defendant intended to cause some bodily harm however slight or caused such harm recklessly in the sense that he foresaw the risk that some bodily harm, however slight, might result from what he was going to do and yet, ignoring the risk, he went on to commit the act which caused the harm. In many cases intent or recklessness will not be in issue, but where it is, it is necessary for the prosecution to prove it.
Count 2: Indecent Assault under
s.14(1) of the Sexual Offences Act 1956
38.
In
R v Court
[1989] A.C. 28
the intention necessary to commit an indecent assault under
s. 14(1) of the Sexual Offences Act 1956
was considered by the House of Lords. Lord Ackner made clear at page 41:
“It was common ground before your Lordships, and indeed it is self evident, that the first stage in the proof of the offence is for the prosecution to establish an assault. The “assault” usually relied upon is a battery the species of assault conveniently described by Lord Lane in
Faulkner v Talbot
[1981] 1 W.L.R. 1528
at 1534 as “any intentional touching of another person without the consent of that person and without lawful excuse. It need not necessarily be hostile or rude or aggressive, as some of the cases seem to indicate”
It is not necessary to refer further to
Court,
as there can be no doubt that, if the complainant did not consent to the touching in this case, the appellant intended to commit an assault which any right minded person would think indecent.
39.
Against this basic definition it is helpful to consider five decisions, three of which predated
Brown
and were considered in it
.
i)
In
Donovan
[1934] 2 K.B. 498
, the defendant was charged with indecent assault and common assault after caning a 17 year old female complainant for the purposes of sexual gratification. It was clear that the complainant suffered actual bodily harm, though the defendant was not charged with an offence under s.47. His defence was consent. The judge directed the jury that the issue was consent or no consent, without giving any guidance on the burden of proof. The court concluded that a direction should have been given on consent, as in the circumstances of the case the jury might reasonably have found consent. The Court then considered the contention (which the prosecution had unsuccessfully made at trial) that it was unnecessary for the prosecution to prove absence of consent and that therefore the failure to give the direction was immaterial. The court rejected this argument:
“Always supposing, therefore, that the blows which he struck were likely or intended to do bodily harm, we are of opinion that he was doing an unlawful act, no evidence having been given of facts which would bring the case within any of the exceptions to the general rule. In our view, on the evidence given at the trial, the jury should have been directed that, if they were satisfied that the blows struck by the prisoner were likely or intended to do bodily harm to the prosecutrix, they ought to convict him, and that it was only if they were not so satisfied, that it became necessary to consider the further question whether the prosecution had negatived consent. For this purpose we think that “bodily harm” has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling.”
This decision was approved by the majority in
Brown
. Although Lord
Jauncey accepted that this case and none of the other prior cases had to consider the distinction between the various types of assault, he viewed the case as deciding that the infliction of actual bodily harm was sufficient to negative consent (see p. 244); he was thus examining the case for the purpose of the issue before the House of Lords and not for the purpose of the intent necessary. The decision was, however, subject to closer scrutiny by Lord Mustill at pages 268-9 in an analysis which (as Lord Woolf CJ said in
Barnes)
was of the highest authority, because Lord Mustill had only dissented as to the result of the application of a public policy test. He concluded:
“Donovan was charged only with indecent assault, and the latter is an offence to which, it is common ground, consent is a defence. Yet the Court of Criminal Appeal proceeded on the basis that the critical level of violence was that of actual bodily harm, and that the jury should have been directed to decide whether he was guilty of facts establishing an offence under s.47 of the Act of 1861: an offence with which he had not been charged. There is something amiss here. What is amiss is that the dictum of Cave J [in
Coney
] and the old cases said to support it are taken out of their context, which was in each instance the kind of battery regarded for reasons of public policy as being in a special category which is automatically criminal. Plainly the court in
Donovan
did not put the beating of the complainant into that category, or the appeal would have taken a quite different course.”
It is clear that
Donovan
was a case where there was a deliberate intention to inflict some harm; thus the issue in the present case was not before the court. It is important to note that, as was set out by Lord Mustill, it was common ground in
Brown
that consent was a defence to a charge to indecent assault (see also the speech of Lord Templeman at page 231 where he made clear that there could be no conviction for the offence of common assault where the victim consented to the assault).
ii)
In
Attorney-General’s Reference No 6 of 1980
[1981] 1 Q.B. 715, the court considered a reference on a point of law as to whether consent could be a defence to a charge of assault arising out of a fight in a public place to which the other consented.
Donovan
was briefly considered; the court concluded:
“ It is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason. Minor struggles are another matter. So in our judgment, it is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent”
This decision was also approved by the majority in
Brown,
but in the context to which we have referred. Again this was a case where it is clear there was a deliberate intention to inflict some harm, however slight.
iii)
In
Boyea
[1992] Crim L.R. 574, the defendant inserted his finger into the complainant’s vagina and twisted it around inside her; injuries were caused to the labia and an internal injury to the vagina, together with bruises and scratches elsewhere on her body. The defendant was charged with indecent assault. The judge directed the jury in conventional terms on the ingredients of an indecent assault; he then directed them that the question whether the complainant consented was irrelevant if they were satisfied that the actions of the appellant were likely or intended to cause harm, which in the context, meant harm that need not be serious or permanent, but which must be more than transient or trifling. It was contended that the jury should have been directed to ask whether the defendant knew or should it have been obvious to him that if he did the act, bodily harm might result. The Court referred to
Donovan
and to a passage in the speech of Lord Ackner in
R v Savage, DPP v Parmenter
[1992] 1 A.C. 699
at 742 F, where he said that the verdict of assault occasioning actual bodily harm might be returned upon proof of an assault together with proof of the fact that actual bodily harm was occasioned by the assault; that it was not necessary for the prosecution to prove that the defendant intended to cause some actual bodily harm or was reckless as to whether such harm would be caused. The court then continued:
“the question whether the act of the defendant was “likely or intended to do bodily harm” to the complainant is to be answered giving the word “likely” its ordinary meaning, that is to say objectively. The question is not equivalent to asking: “Did the defendant inflict the harm recklessly?” We therefore reject this submission by [counsel for the appellant].
After considering the decision in
Attorney General’s reference No 6 of 1980
, the court observed:
“The central proposition in
Donovan
is in our view consistent with the decision of the court in
Attorney-General's Reference
. That proposition can be expressed as follows: an assault intended or which is likely to cause bodily harm, accompanied by indecency, is an offence irrespective of consent, provided that the injury is not “transient or trifling”…..
We would, however, say this. The court must take into account that social attitudes have changed over the years, particularly in the field of sexual relations between adults. As a generality, the level of vigour in sexual congress which is generally acceptable, and therefore the voluntarily accepted risk of incurring some injury is probably higher now than it was in 1934. It follows in our view that the phrase “transient or trifling” in that quotation must be understood in the light of conditions in 1992 rather than those of nearly 60 years ago. But with this qualification, we have no doubt that the extent of the violence inflicted on the complainant went far beyond the risk of minor injury to which, if she did consent, her consent would have been a defence.”
In
R v Savage and DPP v Parmenter,
Lord Ackner (with whom all the other Lords agreed), although making clear that the prosecution did not have to prove the defendant intended to cause some actual bodily harm or was reckless as to whether such harm would be caused, set out that it was common ground that the mental element required the intention or recklessness necessary for an assault.
This decision was approved by the majority in
Brown
in the context to which we have referred. However, in his commentary on
Boyea
, the late Professor Sir John Smith raised the issue that arises in this appeal:
“It is clear that assault and battery require proof of
mens rea
, namely intention or recklessness. Recklessness here means the conscious taking of a risk, that is
Cunningham
as distinct from
Caldwell/ Lawrence
recklessness. … Generally a person who intends to make some impact on the body of another, believing that the other consents to his doing so, does not intend to commit, nor is he reckless whether he commits, a battery. He has no
mens rea
. If, however, he intends to cause some injury (for which there is no social justification) or he is aware that he is likely to cause such an injury, then he does have
mens rea
, notwithstanding the fact that he knows the other consents. He now intends to commit, or is reckless whether he commits a battery. What, however, if, though the act is likely to cause injury, he does not realise this? He does not intend to commit a battery, nor is he reckless whether he does so, because he does not foresee that a battery may result. He foresees only a consented to, non injurious impact; and that is not a battery.”
We shall return to this decision.
iv)
In
Slingsby
[1995] Crim. L.R. 571, the defendant penetrated the complainant’s vagina and rectum with his hand; she suffered cuts caused by a signet ring worn by the defendant; septicaemia developed and she died. The defendant was charged with manslaughter. At the outset of the trial the judge was asked to make a ruling on whether, putting the prosecution case at its highest, the defendant should be liable to be convicted of manslaughter. It was the prosecution case that if any significant injury was a likely consequence of vigorous consensual activity and injury resulted, that would amount to an assault, although it was accepted that the act of inserting fingers or hand into the vagina or rectum for the purposes of sexual stimulation would not, if consensual, amount to an assault or any other crime. Judge J (as he then was) held:
“ The difficulty with this submission was that the sexual activity to which both the deceased and the defendant agreed did not involve deliberate infliction of injury or harm and but for the coincidental fact that the defendant happened to be wearing a signet ring, no injury at all would have been caused or could have been contemplated. The question of consent to injury did not, in fact, arise because neither anticipated or considered it. At the time, all they were considering was this vigorous sexual activity. Therefore, the reality was that the deceased sustained her unfortunate injuries, not when she or the defendant were consenting to injury, but as an accidental consequence of the sexual activity which was taking place with her consent. It would be contrary to principle to treat as criminal activity which would not otherwise amount to assault merely because in the course of the activity an injury occurred.”
v)
In
Dica
[2004] EWCA Crim 1103
, the Court of Appeal had to consider the circumstances in which a prosecution could lie under s.20 of
the 1861 Act
in relation to the infection with HIV. In the course of giving the judgment of the Court (over which Lord Woolf CJ presided), Judge LJ considered the issue of consent; after commenting on
Brown, Emmett, Donovan and Boyea,
he said:
“46. These authorities demonstrate that violent conduct involving the deliberate and intentional infliction of bodily harm is and remains unlawful notwithstanding that its purpose is the sexual gratification of one or both participants. Notwithstanding their sexual overtones, these cases were concerned with violent crime, and the sexual overtones did not alter the fact that both parties were consenting to the deliberate infliction of serious harm or bodily injury on one participant by the other. To date, as a matter of public policy, it has not been thought appropriate for such violent conduct to be excused merely because there is a private consensual sexual element to it. The same public policy reason would prohibit the deliberate spreading of disease, including sexual disease.
47. In our judgement the impact of the authorities dealing with sexual gratification can too readily be misunderstood. It does not follow from them, and they do not suggest, that consensual acts of sexual intercourse are unlawful merely because there may be a known risk to the health of one or other participant. …
51. The problems of
criminalising
the consensual taking of risks like these include the sheer impracticability of enforcement and the haphazard nature of its impact. The process would undermine the general understanding of the community that sexual relationships are pre-eminently private and essentially personal to the individuals involved in them. And if adults were to be liable to prosecution for the consequences of taking known risks with their health, it would seem odd that this should be confined to risks taken in the context of sexual intercourse, while they are nevertheless permitted to take the risks inherent in so many other aspects of everyday life, including, again for example, the mother or father of a child suffering a serious contagious illness, who holds the child's hand, and comforts or kisses him or her goodnight.
40.
On a charge of indecent assault, the prosecution has to prove that the touching of the complainant was without consent. It is sufficient for the issue that arises in this case to make clear that if the touching was with consent, then the fact that in the course of the consensual activity some bodily injury, even serious bodily injury, resulted accidentally and unintentionally, then as matter of principle no criminality can attach. It follows in our view that
Savage
was correctly decided in accordance with principle. We agree with the comments made by the late Professor Sir John Smith on this decision:
“The offence alleged was manslaughter by an unlawful and dangerous act. It was essential for the prosecution to prove that the injuries were caused by an unlawful act, a battery. Because no injury was intended (or, indeed, foreseen) and V consented to the acts done, the judge held that there was no battery. It is respectfully submitted that this is right. In
Donovan
and in
Brown
the injuries were intended and consent to the intentional inflection of injury was held to be no defence. Here there was no question of consenting to injury because the parties contemplated no injury.”
41.
For the reasons we have given, the decision in
Savage
is not in any way inconsistent with the decisions in
Donovan
and
Attorney-General’s Reference No 6 of 1980.
However in each of those cases, it is clear that there was an intention to inflict injury; the issue raised in the present case and in
Slingsby
was not considered. However, one reading of
Boyea,
might suggest that the argument was apparently directed at the question of whether the test of foresight of injury was objective or subjective and that the Court might appear to have held that if there was an objective risk of harm there could be no consent. However we agree with the view of the decision expressed in
Dica
that “on close analysis, however, this case was decided on the basis that the victim did not in fact consent”. The issue therefore that arose in
Slingsby
and that arises in this appeal was not before the court in
Boyea.
Our conclusion on the ruling made by the judge
42.
We have no doubt but that counsel and the judge were all properly trying to narrow the issues in the case. However, at the time the judge made his ruling, on the assumption on which we have proceeded, it was the appellant’s case (1) that the complainant had consented to vigorous sexual activity which involved her desire to have him insert fingers into her anus and (2) that the very serious injury caused was as a result of her activity. It could not in the circumstances be correct to hold as a matter of law that consent was no defence either to the charge under s. 20 or the charge of indecent assault, absent the necessary
mens rea
for these offences.
43.
There was an issue, given the appellant’s account, as to (1) whether he foresaw or was reckless to the risk of any harm and (2) whether the serious injury that followed was the unintentional and accidental result of consensual sexual activity. The fact that serious injury had in fact occurred, or was objectively likely, did not mean that there was no defence at the time the ruling was given, even though there was ample evidence on which the jury could have concluded that the appellant had the necessary intention to cause injury. The pleas were therefore made on a ruling which was incorrect and the convictions on counts 2 and 4, given the assumption on which we have proceeded, have to be quashed. In the circumstances, it was unnecessary for us to consider the further question as to whether it was only in the case of the deliberate infliction of actual bodily harm that consent was no defence; and whether the position was different if the defendant was only reckless as to causing actual bodily harm where the complainant consented to the risk of that level of harm.
II
Count 3
The summing up
44.
When the judge summed up the case, he made it clear to the jury that the only issues in relation to Count 3 were causation and whether the appellant intended to do her really serious bodily injury. On the issue of causation, he referred to the evidence of the prosecution expert who said that it was not possible for the injury to have been caused in the way the defendant had suggested, whereas the defence expert was in no doubt that it could have been. He directed the jury that they should convict only if they were sure that the prosecution expert was right on causation.
45.
He then turned to the ingredients of the offence and directed the jury:
“The defendant admits causing injury to [the complainant] and he admits that the injury which he caused amounts to really serious injury. The complainant agreeing to what he did, if she agreed, cannot make what he did lawful, because of the injuries caused. So the only issue for you to decide on Count 3 is, whether the defendant intended to do her really serious injury at the time he caused that admittedly very serious injury.
You see the words “with intent to do her grievous bodily harm” … that question of intent is the difference between Counts 3 and 4 - Count 4 being a count to which he has pleaded guilty. There is that extra ingredient in Count 3.
Now it is important to remember in this case that an intention is not necessarily the same thing as a desire. The defendant's desire or wish may have been sexual gratification. But if you are sure the defendant appreciated that really serious injury was a virtual certainty as a result of what he decided to do, then the necessary intention is proved.”
46.
After giving a clear direction on the effect on proving the intention in the light of the drink and the GHB consumed by the appellant, he continued:
“How does the prosecution prove an intent? Well, you cannot look into a defendant’s mind. You have to look at all the circumstances and ask yourselves, are you sure you can draw the conclusion that the defendant formed that intention? And the prosecution case is that the defendant inserted something the size of a fist or greater into [the complainant]’s anus. And what the prosecution say, if you are sure that conclusion can be drawn, the further conclusion follows as a certainty- that is what the prosecution say - namely the defendant must have intended to do really serious injury. Whether you are sure you can draw those two conclusions is entirely a matter for you. …
Now it really comes to this on the facts of this case. You will convict the defendant of Count 3 if, but only if, you are sure of two things: first of all, and that [the prosecution expert]'s opinion is right, namely that it had to be something bigger than three fingers, which means rejecting [the defence expert]’s opinion; and secondly that, in addition to that, you are sure the defendant intended to do really serious injury.”
47.
After summing up the evidence, he returned to the issue of causation and intention:
“So back to the crucial issue. As I have already said, the way the case has turned out, if [the complainant]’s injuries were or might have been caused as the defendant says, three fingers and four or five minutes of her jumping up and down on them, then you must acquit the defendant of the charge that you have to consider.
I make this obvious point: it is quite clear that on the vital issue there is no direct evidence from [the complainant], because she cannot remember, she had taken GHB provided by the defendant and, on the evidence, taken it willingly; though of course the defendant had to tell her what the effects were. You have heard that the defendant's account of what happened; he was the only other person there.
The prosecution say that that the account just does not hold water, does not really make sense. One of the points they make - it is a matter for you to consider - is that to endure the pain that the injury must have inflicted she would have had to have been virtually unconscious, if not unconscious. It must be (say the prosecution) something bigger than three fingers. And, as I have said, if that is so, the defendant (argues the prosecution) must have intended really serious injury.”
Our conclusion on the summing up
48.
In our judgment, the summing up made it very clear that it was for the jury to decide whether:
i)
The injuries were caused by the insertion of the defendant’s fist into the complainant’s anus (the prosecution case) or by the vigorous movements of the complainant on the appellant’s fingers – The defence case). If the jury were not sure that the injuries were caused in the manner suggested by the prosecution, then he was to be acquitted.
ii)
Whether the defendant intended to inflict really serious bodily injury. If they were not sure, he was to be acquitted.
49.
These were clearly the issues in respect of Count 3. As was accepted and as is apparent from the decision in
Brown
, the judge rightly directed the jury that consent could not be a defence if the jury were sure about the prosecution case as to the causation of the injuries and that the appellant had intended to inflict really serious bodily injury. The fact that he had pleaded guilty to Counts 2 and 4 cannot in our view made no difference to the determination by the jury of the issues that were clearly put before them. The issues on Count 3 were quite different and left fairly to the jury.
50.
Criticism was made of the passage which we have set out in paragraph 45 where the judge said that the defendant admitted he had caused the injuries. It was submitted that the judge was thereby not putting the issue of causation before the jury. However, as is evident from what we have set out in paragraphs 44 and 47, the judge made it very clear that causation was an issue for them to decide and that they were to acquit the appellant unless they were sure that the prosecution case was correct. All that the judge was doing in the passage criticised was reminding the jury that in fact the defendant did not dispute that the injuries had been caused by his engagement in sexual activity with the complainant; it is clear that the manner of causation was left to the jury.
51.
We therefore saw no reason to doubt the safety of the conviction on Count 3 and dismissed the appeal on that Count. | ```yaml
citation: '[2006] EWCA Crim 2414'
date: '2006-10-20'
judges:
- LORD JUSTICE THOMAS
- MRS JUSTICE DOBBS
``` |
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:
201300460 B1
Neutral Citation Number:
[2013] EWCA Crim 1610
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Harrow Crown Court
His Honour Judge Greenwood
T20107326
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
27/09/2013
Before :
LORD JUSTICE FULFORD
MRS JUSTICE COX DBE
and
MRS JUSTICE SLADE DBE
- - - - - - - - - - - - - - - - - - - - -
Between:
Harpreet Singh Dhall
Appellant
- and -
Regina
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr M Seymour
(referred by
The Registrar
) for the Appellant
Mr S Kovats QC
(instructed by
The Crown Prosecution
) for the Respondent
Hearing date: 17 September 2013
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Fulford :
1.
At the conclusion of the hearing on 17 September 2013 we dismissed the appellant’s appeal against conviction. These are our reserved reasons.
2.
On 17
th
February 2011 at the Harrow Crown Court, the appellant pleaded guilty to count 1 on the indictment he faced, namely the offence of assisting unlawful immigration between 27 October 2008 and 11 October 2010, contrary to
section 25(1) Immigration Act 1971
(“
the Act
”), although it is to be noted that the prosecution did not set out in the count the particular immigration law in relation to which it was alleged the appellant facilitated breaches.
3.
On 29
th
March 2011 Judge Greenwood sentenced him to 6 years’ imprisonment.
4.
The prosecution offered no evidence against the appellant in relation to four counts of conspiracy to assist unlawful immigration (counts 2, 4, 6 and 8).
5.
His 4 co-accused (Gurjeet Singh, Raman Kumar Gupta, Baljit Singh and Nagendra Tripathi) pleaded guilty to individual counts of obtaining leave to remain in the United Kingdom by deception, contrary to
section 24A(1) Immigration Act 1971
(counts 3, 5, 7 and 9) and they were sentenced respectively to 6 months’, 10 months’ and two terms of 7 months’ imprisonment.
6.
On 14 November 2011 the Full Court dismissed the appellant’s renewed application to appeal his sentence of imprisonment and on 9 May 2013 the Full Court dismissed the appellant’s appeal against the confiscation order in the sum of £107,836 (the issue on that latter appeal related to Judge Greenwood’s assessment of the appellant’s available assets) (see
[2011] EWCA Crim 2774
and
[2013] EWCA Crim 892
).
7.
At the relevant time the appellant worked as a regulated Immigration Adviser within the scheme run by the Office of Immigration Services Commissioner (“OISC”) and it was alleged that he assisted in the preparation and submission of fraudulent Tier 1 (General) High Skilled Worker extension applications to the United Kingdom Border Agency (“UKBA”) by individuals who he knew were not European citizens (“the applicants”). In each instance they were Indian nationals who had limited leave to remain in the UK and their applications were for an extension of that leave, for which proof of sufficient earnings was required as part of the relevant points-based system. Additionally, it was necessary for the Tier 1 applicants to demonstrate that their bank accounts were kept in regular credit balance that did not fall below a specified sum. The appellant produced false payslips and transferred the amount shown on them to the applicants’ bank accounts. They then returned the money to him and the process was repeated. Thus by the payment of one sum of money it was possible to make it appear as though the relevant applicant was in receipt of regular earnings. Figures from these documents or the documents themselves were submitted in support of applications for an extension of leave to remain in the UK.
8.
One of the companies used to issue the payslips was Global Property Consultants of which the appellant was a director. The company carried on no other legitimate business activities. The appellant was paid a total of £60,000 for these dishonest applications. In all the circumstances, it was alleged that when he submitted the applications with bank statements and false payslips on their behalf to the United Kingdom Border Agency he knew they were false and it was alleged he was aware he was thereby facilitating breaches of the relevant immigration law.
9.
He now appeals against his conviction by the leave of the single judge, who limited the issues to be argued as follows:
“
I consider that it is arguable that the applicant was not facilitating breaches of “immigration law” and that the relevant immigration law has not been clearly or sufficiently identified. He may well have been assisting in the commission of criminal offences under s.24A of the […] Act 1971 but it is arguable that that does not involve breach of immigration laws (see s.11(2)). […]
”
10.
The relevant part of
section 24A
of
the Act
provides:
“
A person who is not a British citizen is guilty of an offence if, by means which include deception by him—
he obtains or seeks to obtain leave to enter or remain in the United Kingdom; or
[…]
”
11.
Although not advanced by counsel now instructed, Mr Seymour, in his Perfected Grounds of Appeal/Skeleton Argument dated 22 July 2013, the appellant has filed separate grounds in which he criticises his previous representatives. As explained hereafter, those criticisms are unsustainable because Mr Seymour accepts there was a proper basis for the appellant to plead guilty to Count 1, albeit, as addressed below, he argues the prosecution has impermissibly changed its stance as to the relevant immigration law. We should make it clear that Mr Seymour was not instructed when this case was before the Crown Court; indeed, he was only briefed in the present proceedings after the single judge granted leave to appeal.
12.
The short argument advanced by Mr Seymour is that it is to be inferred that in the Crown Court the prosecution proceeded on the basis the appellant had facilitated breaches of
section 24A(1)
of
the Act
and that the respondent’s case on this appeal is now improperly presented on a different basis, in that the Crown rely on the “conspectus” of immigration law (to use the expression of Mr Kovats QC on behalf of the respondent) that expressly does not include
section 24A(1)
.
13.
Although it is irrelevant to the merits of this appeal, we note the way in which the Crown puts its case as to the relevant immigration law only became clear a few days before the hearing of the appeal – the delay in the service of the prosecution skeleton argument was not in any sense the fault of Mr Kovats – and Mr Seymour (together with the single judge) made an assumption, no doubt in part based on the applicant’s own grounds of appeal, that
section 24A(1)
was relied on in this context. As a consequence, Mr Seymour had to abandon his original grounds of appeal and accompanying skeleton argument, and his principal argument, as summarised above, was developed for the first time during the hearing of the appeal in oral submissions.
14.
Mr Seymour has been unable to take the court to anything that was communicated by the prosecution at any stage in these proceedings which suggested the Crown relied on
section 24A(1)
. The count was framed in the following way:
“
Count 1
STATEMENT OF OFFENCE
ASSISTING UNLAWFUL IMMIGRATION, contrary to
section 25(1) of the Immigration Act 1971
.
PARTICULARS OF OFFENCE
HARPREET DHALL between 27
th
day of October 2008 and 11
th
October 2010 repeatedly facilitated breaches of immigration law by non European Union citizens, namely, Gurjeet Singh, Raman Kumar Gupta, Baljit Singh, Nagendra Mewa Prasad Tripathi, Tahir Anwar, Sanchit Luthra, Abhishek Prasad, Sidartha Varma, Deepak Sud, Javen Baath, Pankaj Chandole and Satish Kumar Yadav, knowing that they were not European Union citizens, in that he transferred money to their bank accounts to support false evidence of earnings in respect of their Tier 1 immigration applications, and thereby submitted applications on their behalf to the United Kingdom Border Agency which were false and which he knew to be false, knowing that those acts would facilitate a breach of immigration law by them.”
15.
Mr Brady (prosecuting counsel who opened the case to the judge after the guilty pleas had been entered) made no mention of
section 24A(1)
or the particular immigration law relied on, in part because there was no request to furnish additional details by way of further particulars of the count, or otherwise. It was simply accepted by all concerned (including the appellant) that his acts had facilitated the breach of immigration law by the others named in the count. As indicated in
Kapoor and others v The Crown
[2012] EWCA Crim 435
[7], if there is a trial it is preferable for the count to specify the immigration law relied on as regards the alleged breach although express reference to this in the prosecution’s opening will suffice.
16.
Mr Seymour contended it is to be inferred that
section 24A(1)
must have been “in the mind” of the prosecution because each of the appellant’s co-accused was charged under that section as part of a pair of counts (the other being conspiracy to assist unlawful immigration), and accordingly count 1 was, in effect, a conspiracy to commit the
section 24A(1)
offences in counts 3, 5, 7 and 9.
17.
In our judgment, these arguments are unsustainable. It is not suggested that the count, as drafted, is in breach of
section 3 of the Indictments Act 1915
: it is a properly drafted charge, and as we have already observed, there was no request to the prosecution to provide further particulars. Whatever may privately have been in the minds of the individual who drafted the indictment or prosecuting counsel on 17 February 2011 is wholly irrelevant, in that no representations to the appellant or the court were made in this context. Accordingly the appellant has not, in any sense, been led to act to his disadvantage on the basis of a material representation that has been altered or withdrawn, such as to constitute an abuse of the process of the court. The unexpressed thoughts of counsel and employees of the Crown Prosecuting Service are wholly irrelevant for these purposes and the appellant is not entitled to disclosure of the personal musings of members of the prosecution team.
18.
That argument aside, it is not in dispute that the appellant “did an act”, or rather “acts”, for individuals who he knew were not citizens of the European Union. It is also not in dispute that his objective was to provide false documents in order improperly to enhance their prospects of remaining in the UK. Further, it is accepted that none of the applicants had a right of abode in the United Kingdom, and they were not entitled to remain in this country without leave, by virtue of
sections 1(2)
and
3(1)(b)
of
the Act
:
“
Section 1
(2)
Those not having (right of abode) may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; […]
Section 3(1)(b)
Except as otherwise provided by or under this Act, where a person is not a British citizen —
(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period.”
19.
Section 25
(entitled “assisting unlawful immigration to member state”) provides in (1) and (2) as follows:
“(1) A person commits an offence if he—
(a) does an act which facilitates the commission of a breach of immigration law by an individual who is not a citizen of the European Union,
(b) knows or has reasonable cause for believing that
the act
facilitates the commission of a breach of immigration law by the individual, and
(c) knows or has reasonable cause for believing that the individual is not a citizen of the European Union.
(2) In subsection (1) “immigration law” means a law which has effect in a member State and which controls, in respect of some or all persons who are not nationals of the State, entitlement to—
[…]
(c) be in the State.”
20.
Given the circumstances set out above and the terms of
sections 1
and
3
of
the Act
, Mr Seymour conceded – in our view wholly accurately – that when this appellant submitted the false documents to the United Kingdom Border Agency, he did an act which facilitated the commission of a breach of immigration law by those individuals who were not citizens of the European Union and whose applications for an extension of leave, in due course, were granted. It was accepted that he knew or had reasonable cause for believing that he was facilitating the commission of a breach of immigration law (
viz.
sections 1
and
3
of
the Act
) by the applicants who fell within that category (thereby committing an offence under
section 25
). Mr Seymour conceded that as regards being in the UK (“to be in the State”) for the purposes of
section 25(2)
, there is no distinction between (a) an applicant who, having originally been lawfully in the UK, secured an extension of leave by means which included deception (
e.g.
for present purposes, this was facilitated by submitting a false application or documents), and (b) an applicant who, having originally been lawfully in the UK, remained in this country after the expiry of his leave (
e.g.
for present purposes, his continued presence – which had become unlawful – was facilitated by another). Mr Seymour acknowledged there was no arguable basis for submitting that the former situation was not capable of being covered by the definition of an immigration law.That concession was expressly influenced by the decision in
R v Javaherifard
[2005] EWCA Crim 3231
; [2006] IAR 185. Ouseley J, giving the court’s judgment in a case in which the defendants facilitated the entry by two Iranian nationals into this country and their stay in the UK thereafter (contrary to
section 25
of
the Act
) observed that:
“46.
[…]
we reject the assumption that the concept of immigration law controlling entitlement to “be in the State” requires any special interpretation so that it only applies to those who remain in the State after the expiry of limited leave or after a breach of its terms. It is inevitable that immigration control will use words on occasions with a technical meaning, but unless that technical meaning is clearly intended to be used in a particular context, Courts should avoid an unduly technical approach. S25 (2) is clearly intended to embrace all aspects of that which immigration law can control: entry, transit and the sweeping up phrase of “being in the State”. “Entry” has in certain contexts a technical meaning as we have discussed. So too does “transit”; as already discussed, it is aimed primarily at those who remain airside and so do not “enter” the country at ports, yet who require transit visas. “Being in the State” covers all the other aspects of presence, including arrival pre-entry, overstaying or breach of leave, or presence as an illegal entrant who has no leave. Indeed, it contrasts with the term “remain” which, used in a technical sense, is the meaning which in effect the Appellants contend “be” should have. Had Parliament intended to confine “being in the State” to those who enter with limited leave and either overstay or breach its terms, then the word “remain” at least would have been used to contrast with “entry”, and its technical scope would then have been for debate..”
21.
Mr Seymour sought to draw a distinction, which we do not need to resolve, between the situation when fraudulent applications for an extension of leave are granted and when they are refused: in the latter instance, Mr Seymour suggests that there would not have been a breach of
section 1
of
the Act
or any other aspect of relevant immigration law, and accordingly no offence, as regards those individuals, would have been committed under
section 25(1)
.
22.
The realistic stance adopted by Mr Seymour as regards at least some of the applicants – which accords with the best traditions of our legal professions – and our conclusions on the main argument on this appeal concerning the suggested change in stance by the Crown are determinative of this appeal. A number of other issues were raised as to the meaning of the expression “immigration law” for the purposes of
section 25(2)
, and particularly the ambit of the corpus of laws that controls the entitlement of individuals who are not nationals to be in the UK, but it is unnecessary for us to give further consideration to them. Determining whether or not the appellant’s acts facilitated the commission of breaches of other aspects of the relevant “conspectus” of immigration law (such as provisions within the
Immigration and Asylum Act 1999
or the immigration rules) or, as just indicated, whether there was a breach of
sections 1
and
3
of
the Act
or some other provision for those Indian nationals whose applications for an extension of leave to remain were refused, is an unnecessary undertaking, given the appellant’s counsel accepts he had facilitated the commission of breaches of
sections 1
and
3
of
the Act
whenever a relevant application for an extension was granted.
23.
For these reasons this appeal against conviction is dismissed. | ```yaml
citation: '[2013] EWCA Crim 1610'
date: '2013-09-27'
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}
======
| Case No:
200301072B3
&
200301438B3
Neutral Citation No:
[2004] EWCA Crim 63
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MIDDLESEX GUILDHALL
HIS HONOUR JUDGE BLACKWELL QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
28
th
January 2004
Before:
LORD JUSTICE MANTELL
MRS JUSTICE RAFFERTY
and
MR JUSTICE PITCHERS
- - - - - - - - - - - - - - - - - - - - -
REGINA
- v -
ALAMIN MIAH AND MARUF UDDIN
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr I Hope
(instructed by
CPS
) for the Crown
Miss F Roe
(instructed by
Waterfords Solicitors
) for the Appellant Miah
Miss D Morris
(instructed by
Charles Simmons Solicitors
) for the Appellant Uddin
Hearing date: 17
th
December 2003
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT
Lord Justice Mantell:
1.
On 5
th
February 2003, following a trial lasting eight days in the Crown Court at Middlesex Guildhall, Maruf Uddin and Faruk Miah were convicted of causing grievous bodily harm with intent. Alamin Miah, having been earlier found not guilty of the same offence, was convicted on an alternative count charging violent disorder. Five others were acquitted of both charges – four at the hands of the jury and one by direction of the judge. The three who were convicted sought and were granted leave to appeal. At a hearing on 17
th
December 2003 this Court adjourned the appeal of Faruk Miah to permit him to be represented by different counsel or solicitor advocate but allowed the appeals of Uddin and Alamin Miah with the result that their convictions were quashed. The court reserved its reasons, which now follow:
2.
The prosecution arose out of an unprovoked and cowardly attack upon a young man, Philip Bowden, who was making his way home on the Docklands Light Railway following a night out on New Years Eve 2001. He had joined the train at Bank and was intending to alight at Poplar where the line terminates. At Shadwell station, an intermediate stop, a group of youths dragged him from the train before proceeding to punch, kick and stamp on his prostrate body before one of them stabbed him in the neck with the jagged ends of a broken bottle. As a result Philip Bowden lost consciousness; his jugular vein was severed and it was only through the prompt and efficient attention of fellow passengers, police and medical staff that his life was spared. He has little or no recollection of the incident or the events which led up to it.
3.
There was a number of eyewitnesses including fellow passengers and railway staff. All of them described the youths as Asian being members of a party numbering up to fifteen in all. They too had boarded the train at Bank and had clearly taken drink in the earlier part of the evening. Some of the passengers on the train found their behaviour intimidating. There was no consensus as to how many of the youths took part in the attack. One of them, Richard Bawden, placed the number in the group at eight or nine of whom only two took part in the attack. Another passenger, Candice Rodot, also put the total number of youths at eight or nine but estimated that five of them had been involved in assaulting Philip Bowden. Another passenger, Alison Ruan spoke of some fourteen or fifteen Asian youths being at Bank station some of whom were sitting and others standing whilst on the train. At Shadwell station she noticed the group of Asian youths get out before seeing "the white guy", who must have been Philip Bowden, "fly out of the train". She saw that the Asian youths were surrounding him and one of them shouted something. Then most of the youths ran away leaving four behind who were kicking and punching the white man. She saw someone holding the man’s collar, the man rise up with blood coming out of his mouth. She noticed a Budweiser bottle rolling towards the train. In her witness statement she had described the man holding the collar as wearing a silver grey jacket which she thought must be a more accurate description than what she had first of all said in evidence, namely that the jacket was black. It was the Crown’s case that the man wearing the silver grey jacket and who had used the bottle was Faruk Miah. Not one of the eyewitnesses was able to pick out any one of the accused at subsequent identification parades.
4.
In addition to the evidence from eyewitnesses there was CCTV footage from earlier in the evening at a Texaco service station and Tottenham Court Road underground station. There was also film from Bank station, the platform at Shadwell and also from the bottom of a three-flight exit staircase. From the earlier footage it was possible to identify some of the members of the group. It was beyond question that the group included these three appellants. Indeed it was the positive case of Maruf Uddin that he was shown to be the first to leave Shadwell station. He was to say when interviewed that he had been a member of the party and had gone straight home after alighting at Shadwell. Faruk Miah also accepted in interview that he had been a member of the party and that he had been in company with Maruf Uddin amongst others. Alamin Miah did not answer any questions when interviewed but it was his case at trial that he had been correctly identified as the member of the group wearing a bright yellow jacket shown in the film taken at Texaco and Tottenham Court Road and Bank stations. The Crown case, never contradicted, was that he was the sixth person to leave Shadwell station and readily identified by reason of his jacket.
5.
At trial none of the defendants gave or called evidence.
6.
With the possible exception of Faruk Miah, the Crown was never in a position to identify any particular defendant as one of those who actually took part in the attack on Philip Bowden. Again with the exception of Faruk Miah the nearest they got to identifying any particular defendant was through WDC Crossingham who thought that someone shown to be close to Philip Bowden on the platform could have been Uddin.
7.
It is also quite clear that the prosecution were unable to prove that each and every member of the group had participated. Accordingly the Crown put its case in the following way:
"The prosecution say that this was a joint enterprise attack on Mr Bowden. Different people may have taken different roles. Some kicked and stamped on him; at least one, probably two used bottles on him; others who may not have been involved in the bottling may have bundled the victim off the train, forcing him to the floor where he was set upon by some of the others; others may have been there, knowing what was to happen and, knowing what was happening were willing and able to assist if necessary, thereby offering encouragement and support for what was happening."
8.
Of course, the case so formulated presupposes that there been some prior agreement involving every member of the group that at least some measure of violence should be used towards what was to them a complete stranger: hence the alternative counts of causing grievous bodily harm with intent and violent disorder.
9.
Given the state of the evidence it is unsurprising that submissions of no case were made on behalf of all defendants. In particular it was submitted for Maruf Uddin and Alamin Miah that that there was insufficient evidence of joint enterprise in relation to either count on the indictment to allow the case to continue. It was further submitted on behalf of Alamin Miah that there was no evidence that he had been present with the others on the train at a time when the plan to attack Philip Bowden was being discussed. Save in relation to one of the defendants, Fokrul Islam, the judge rejected all submissions. He acknowledged that the prosecution case on joint enterprise depended upon all who alighted from the train as part of the group having agreed that Philip Bowden should be taken off the train and attacked. He seems to have considered it important that everything happened within a matter of moments. He recognised that the jury would need to be given a careful direction with regard to the state of mind necessary to establish count 1.
10.
As we have said, following the close of the prosecution case none of the defendants gave evidence or called witnesses on his own behalf.
11.
The only ground of appeal relied upon by Maruf Uddin and Alamin Miah is that the judge should have acceded to the submission of no case to answer. We think the complaint is well founded so far as count 1 is concerned. As noted, it could not be proved that every member of the group participated in the attack. Therefore, with the possible exception of Faruk Miah, it could not be proved that either Maruf Uddin or Alamin Miah participated. If guilt was to be established it had to be shown, therefore, that each was present with the intention of lending support and/or encouragement to those who were actively involved and with the intention that those actively involved should cause grievous bodily harm with intent to cause grievous bodily harm. That in turn involved the jury being able to infer that all members of the group were aware that some of their number were intending to cause serious harm even before they alighted from the train. In our view the evidence did not permit the drawing of such an inference.
12.
However, we accept that it is more readily to be inferred that all members of the group had agreed to take part in some degree of violence or horseplay on leaving the train. On any view it was an extremely thin case as against each of the two appellants. Many judges would not have allowed the case to continue. Nevertheless, we consider that the judge was entitled to leave count 2 for the jury’s consideration.
13.
But it must be remembered that even count 2 depended upon the prosecution being able to show that all members of the group had been party to a prior agreement. By its verdicts the jury quite clearly demonstrated that it did not accept the Crown’s submission. If the jury was not satisfied that all members of the group had been party to an agreement to commit violent disorder then what was there to set the case against these two appellants apart from the cases against the others? So far as we have been able to discover, there was nothing.
14.
That brings us to the conclusion that the conviction of Uddin on count 1 and of Alamin Miah on count 2 cannot be regarded as safe. We recognise that the basis upon which we reached that conclusion does not depend upon any ground of appeal for which either appellant has leave. If it is necessary to do so, therefore, we would grant leave to both appellants to argue that their convictions are unsafe because of the view the jury had apparently reached with regard to a central proposition of the prosecution case. Accordingly we took the course indicated in an earlier part of these reasons. | ```yaml
citation: '[2004] EWCA Crim 63'
date: '2004-01-28'
judges:
- LORD JUSTICE MANTELL
- MRS JUSTICE RAFFERTY
- MR JUSTICE PITCHERS
``` |
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 3187
Case No:
2003/06451/C4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CHESTER CROWN COURT
MR JUSTICE STEPHEN RICHARDS
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
19 December 2006
Before :
LORD JUSTICE PILL
MR JUSTICE FORBES
and
MR JUSTICE HODGE
- - - - - - - - - - - - - - - - - - - - -
Between :
THE QUEEN
Respondent
- and -
MAURICE ALAN JOHN LATUS
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
MR S LINEHAN QC
for the Respondent
MR A BARKER QC for the Appellant
Hearing dates : 23 November 2006
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Pill:
1.
On 19 June 2002 in the Crown Court at Chester before Mr Justice Stephen Richards, Maurice Alan John Latus pleaded guilty to wounding with intent to do grievous bodily harm (Count 5). Two days later, he pleaded guilty on re-arraignment to an offence of manslaughter (Count 3) where murder had been charged. On 3 and 4 July 2002, before the same judge and a jury, he was convicted of attempted murder (Count 4) and wounding with intent to do grievous bodily harm (Count 1). On a separate count of murder (Count 2), separate that is from the killing on which there had been a plea to manslaughter, the jury failed to agree.
2.
There was an abortive trial on that count for murder, also at Chester, in February 2000 followed by a further order for re-trial. On 16 October 2003 at the same Crown Court before His Honour Judge Gibbs and a jury, Latus was convicted of that murder.
3.
For each of the offences, Latus was sentenced by Judge Gibbs on 16 October 2003 to life imprisonment. The minimum term provided was 16 years. Latus appeals against the conviction for murder on 16 October 2003, by leave of the full court. An extension of time of one year and five months was granted.
4.
The ground of appeal is simple to state. The conviction is unsafe, it is submitted, because fresh evidence is available which, if admitted, would establish that the appellant was suffering from diminished responsibility at the time of the killing. The conviction should be for manslaughter.
5.
There were three victims; Julian Sanders, Colin Faulkes and the appellant’s mother. Faulkes was the subject of the manslaughter count (Count 3), the offence having been committed in June 2001. The appellant’s mother was the victim of attempted murder (Count 4), the offence having been committed on the day following the killing of Faulkes. Sanders was the victim of wounding with intent (Count 5) on 29 February 2000 and of the murder now in issue, to the facts of which we now turn.
6.
From about 1985, the appellant lived in the Gatehouse a house owned by Colin Faulkes in rural Shropshire. The appellant alleged that Faulkes had physically and sexually abused him over many years but that he could not leave the house because he had nowhere to go. His relationship with his mother was difficult. She had re-married a much younger man, a pupil of hers, in the early 1980s.
7.
The appellant and the deceased Julian Sanders worked together from 1997 onwards and became friendly. They saw each other fairly frequently. Sanders was admitted to a mental hospital twice in 1999 suffering from a drug induced psychosis.
8.
On 29 February 2000, Sanders attended Shrewsbury hospital with wounds to his forehead and the back of his head. There was extensive bruising and swelling at the back of his skull. At the time, he said that he had fallen down a flight of stairs. He was again an inpatient at a mental hospital from early April to late May 2000.
9.
Sanders was killed on 27 or 28 May 2000. His body was found at Cofton Park, a grassed area in outer Birmingham. CCTV which normally operated in the area had malfunctioned. The evidence was that Sanders had been killed elsewhere, that the killer had severed the head from the body and travelled to Cofton Park, it was thought by car.
10.
The appellant was arrested in October 2000. At interview, he denied any connection with the killing and was released without charge.
11.
The prosecution case was that the appellant had hacked Sanders to death with an axe or a heavy implement with a sharp edge. Reliance was placed on evidence that the deceased had telephoned the appellant shortly before he was killed. A watch worn by the deceased a week before his death was in possession of the appellant after the death and the appellant attempted to destroy it. The appellant was seen driving his car on the day on which Sanders was likely to have been killed. Reliance was placed on the guilty plea to wounding Sanders with intent in February 2000 as showing animosity towards him.
12.
The defence case was a denial that the appellant was the killer of Sanders. At interview, he had stated that the deceased’s injuries in February 2000 were caused accidentally. The appellant did not give evidence.
13.
The sentencing judge on 16 October 2003 had to consider a conviction for manslaughter based on diminished responsibility and a conviction for murder. The offences were committed about a year apart, the murder offence being the earlier in time. When accepting the manslaughter plea in June 2002, Stephen Richards J had before him a report from Dr J D Collins, consultant forensic psychiatrist, based on his knowledge of the appellant as his responsible medical officer. Dr Collins had been given a detailed account by the appellant of his killing of Colin Faulkes. In relation to the killing of Sanders, Dr Collins added:
“In relation to the charge Mr Latus is facing in respect of Mr Sanders, I have no medical recommendation to make. He has consistently denied any involvement in the killing. Whilst I think it the case that Mr Latus was suffering from a mental illness at the time of Mr Sanders’ death, he has never said anything about him, which would suggest that Mr Sanders was involved in his delusional system or any other aspect of his mental illness. Under the circumstances, if Mr Latus is convicted of an offence in respect of Mr Sanders, there is no indication at present to suggest that a hospital disposal is appropriate and no bed would be made available for him at Ashworth hospital in relation to this.”
14.
When sentencing the appellant in October 2003, the judge acted on the basis of that and subsequent reports from Dr Collins. The subsequent reports dealt only with the Faulkes killing.
15.
The appellant sought leave to appeal against his conviction for the murder Sanders, on grounds unconnected with the present ground. His application for leave was refused by the single judge on 15 March 2004. On 29 July 2004, the appellant admitted killing Sanders. He made the admission to his solicitor, giving an account of what he said had happened. The solicitor understandably obtained a further report from Dr Collins. It is this report which the appellant relies as being fresh evidence for the purposes of this appeal.
16.
In his report dated 9 November 2005, Dr Collins first confirmed that, before the trial, he advised the appellant that, since he denied killing Sanders, he was “not able to make any decision as to the extent to which [the appellant’s] mental illness had contributed to the offence”. Dr Collins then recorded in detail the account of the killing given to him. Dr Collins asked him, properly and in accordance with his professional duty, why he had not given the account pre-trial and why he had denied involvement in the offence. We will consider later the reasons given by the applicant.
17.
The appellant’s description of the killing fitted, in the doctor’s view, the facts insofar as he had been able to establish them and he had no reason to doubt its validity. Dr Collins considered that there was a “striking similarity” in the aggression of the applicant towards Faulkes and Sanders. On the appellant’s account, Sanders was involved in his delusional beliefs in much the same way as was Faulkes and that Sanders was perceived to be persecuting him as an agent for Faulkes. Dr Collins concluded:
“Had Mr Latus given these accounts to me before his trial, I would have considered that he was suffering from diminished responsibility”.
He said he would have recommended imposition of a hospital order, with restrictions.
18.
The prosecution obtained a report from Dr N M J Kennedy, consultant psychiatrist. He too heard the appellant’s account of how Sanders was killed and said that, had he heard that account at the time of the first trial, he would have advised the prosecution to accept a plea of diminished responsibility. He added that when unwell the appellant “represents a grave and immediate danger to the public. There would be a substantial risk of serious violence to anybody about whom he formed paranoid beliefs in the future”. In a short supplementary report, Dr Kennedy stated that, if the appellant was not telling the truth as to the circumstances of the killing, he would still take the view that the appellant was suffering from an abnormality of mind which was “something that would have globally affected his mental functioning to a substantial degree”.
19.
On behalf of the appellant, Mr Barker QC seeks leave to call as further evidence, that of Dr Collins just described.
Section 23 of the Criminal Appeal Act 1968
provides, insofar as is material:
“
(1) For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice-
(a) …
(b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court, whether or not he was called in those proceedings; and
(c) receive any evidence which was not adduced in the proceedings from which the appeal lies.
(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to-
(a) whether the evidence appears to the Court to be capable of belief;
(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;
(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and
(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.
”
20.
It is common ground that the requirements of
Section 23(2)(a)(b)
and (c) are satisfied. Mr Barker submits that it is necessary and expedient in the interests of justice to receive the evidence and that there is a reasonable explanation for the failure to adduce the evidence at the trial. The appellant should be sentenced on the basis of the up-to-date medical evidence, as to what his mental condition was at the time of the killing of Sanders. It was not adduced at the trial because the appellant sought to deny any involvement in the killing. It is further submitted that the appellant’s mental condition at the time of the offence was such as to affect his responsibility for decisions taken before and at the trial including the decision to deny the killing.
21.
For the prosecution, Mr Lineham QC submits that it would subvert the trial process to permit an appellant to mount on appeal an expert case which, if sound, should and could have been advanced before the jury. Further, the current medical opinion depends on acceptance of an account of the killing given by the appellant, the accuracy of which is in issue and is to be seriously doubted. The appellant knew of the partial defence of diminished responsibility because it was adopted, and accepted, in relation to the murder charge involving Faulkes, heard at the same time as the first trial of the murder charge involving Sanders. The appellant had determinedly and persistently lied about his involvement in the killing of Sanders. He had been interviewed under caution in October 2000 for over 4 hours. The appellant answered detailed questions and throughout denied any involvement in the killing.
22.
There have been cases in which fresh medical evidence of diminished responsibility has been admitted in this court notwithstanding a denial at trial of involvement in the offence. In
R v Borthwick
[1998] Crim LR 274, the court held that 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. In
R v Ahluwalia
(1993) 96 Cr.App.R 133
, fresh medical evidence was admitted when a medical report available at the trial was overlooked or not further pursued and the appellant was not consulted about it. However, Lord Taylor of Gosforth CJ stated, at page 142:
“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 [diminished responsibility] to be raised for the first time here if the option had been exercised at 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. Nothing could be further from the truth”
23.
In the earlier case in
R v Straw
[1995] 1 All ER 187
, the court refused leave to call fresh medical evidence when an appellant who was capable in law of taking the decision as to how her case should be put before the jury and, with full advice as to a defence of diminished responsibility, declined to allow it to be put before the court.
24.
In
R v Neaven
[2006] EWCA Crim 955
, this court, Rix LJ presiding, drew, at paragraph 41, this guidance from the authorities:
“(1) That the obligation on a defendant to advance his whole case at trial, and the scepticism directed towards tactical decisions, remain fundamental. (2) That it therefore takes an exceptional case to allow it to be in the interest of justice to admit and give effect to fresh evidence, not relied on at trial, designed to promote a new defence of diminished responsibility. However, subject to this, (3) each case turns on its own facts. Therefore, (4) where the evidence of mental illness and substantial impairment is common ground or otherwise clear and undisputed, it may be in the interests of justice (In the absence of opposition from the appellant himself – see Kooken) to admit it. (5) This is especially so if the potential vice of tactical decisions is met by undisputed evidence that such decisions were affected by the defendant’s illness itself. (6) The emerging only after conviction of evidence of mental illness and of the potential of a defence of diminished responsibility is of little weight, unless perhaps there is unanimity as to the conditions necessary for such a defence at the time of offence.”
25.
Doubts have been raised by the prosecution as to the accuracy and frankness of the appellant’s present account of how Sanders was killed. The prosecution case remains that it was a deliberate killing, whereas the appellant denies an intention to kill. Doubts have been raised as to the credibility of the entire account now given by him. Evidence, probably including pathological evidence, would be required in any attempt to resolve them. It is not, in our view, necessary or appropriate for this court to attempt to resolve them.
26.
The potential relevance of the issue, apart from the issue of whether the appellant had been frank with the court, is that
Section 2(1) of the Homicide Act 1957
, which defines the partial defence of diminished responsibility, requires that the abnormality of mind substantially impaired the defendant’s mental responsibility for his acts and omissions in doing or being a party to the killing, the burden of proof being, by virtue of
section 2(2)
on the defence. The impairment of mental responsibility must be for the “acts in doing the killing”. Until it is decided what those acts were, the link, if any, between the impairment and the killing cannot be established. There is no doubt that Dr Collins, very understandably in our view, was not prepared to express an opinion about diminished responsibility in relation to the charge involving the death of Sanders at the time of the appellant’s trial.
27.
That point, however, is not central to our deliberations in this particular case. If the point were to be crucial, the defence would rely on alleged similarities between the killing of Faulkes and the killing of Sanders to establish that, whatever the precise acts, the defence of diminished responsibility should cover both killings.
28.
Analysis is required of the appellant’s decisions at the time of the first and the second trial. At the first trial, a plea of diminished responsibility was accepted in the count involving Faulkes. We have no doubt that its possible availability in the count involving Sanders was fully explained to the appellant by his legal advisors. He decided to plead not guilty. He was asked about that when interviewed by Dr Collins prior to him writing his report of 31 October 2005:
“When I asked Mr Latus why he had not given this account of the killing to us when he was in Ashworth on remand, and why he had denied any involvement in this offence, he gave me a number of reasons, as follows:
1.
He admitted that he was trying to achieve “damage limitation … I hoped to get away with it. There wasn’t much evidence”.
2.
He feared that, if he had given this account, people would have thought he was making it up.
3.
He thought that this crime was so terrible that people would be horrified by what he had done and not wish to associate with him.
At the time of his trial, he was still not really sure whether he had a mental illness or not. He acknowledged that he had been told this often enough at Ashworth, but he was still convinced that he had been repeatedly attacked at night in the caravan and, as far as he was concerned, there was evidence to prove it, eg the pain in his knees and the various marks on his body that he had identified.
4.
He said that, whilst he knew that killing someone was wrong, he had thought, at the time, that he was justified as he had been the victim of repeated, serious, unprovoked assaults for many months. However, he did not see any way of making his story seem credible to others. He pointed out that he has never gone to the police either, his view being that, if he had done so, “they would have just laughed me out of the station.”
29.
While, under point 3, the question of mental illness was raised, these explanations demonstrate what the prosecution have fairly described as a deliberate tactical decision not to allow the defence of diminished responsibility to be investigated because the appellant believed that he had a good chance of acquittal based on his denial of any responsibility. We cannot accept the submission that it was the mental illness which gave rise to these attempts to evade responsibility. Moreover, the appellant’s conduct after the killing, by way of attempting to dispose of the body and by his persistent denials of involvement tend to confirm the statement he made to Dr Collins that he “hoped to get away with it”. He persisted in his denial following his arrest for the killing of Faulkes and his “hope” succeeded to the extent of a jury disagreement on the Sanders count at the first trial. The appellant persisted in denying involvement at the time of the retrial at which he was convicted and until his application for leave to appeal had been refused.
30.
This is not a case in which the decisions made by the court in, for example,
Borthwick
and
Ahluwalia
can be followed. In our judgment, no reasonable explanation has been given for the failure to adduce appropriate medical evidence at the trial and it is neither necessary nor expedient in the interests of justice to admit it now. If it is necessary to state it, we state that this involves no criticism whatever of the conduct of Dr Collins at any stage. We agree with, and apply, the principle stated by Lord Taylor CJ in
Ahluwalia
, and cited in paragraph 22 above. We note that in
Neaven
, at paragraph 43, the court, while admitting fresh evidence on the basis that the illness had affected the defendant’s ability to give rational instructions, stated, at paragraph 47:
“As stated above, we have no doubt that the principles in favour of one trial and against changing tactics remain of paramount and fundamental importance.”
31.
For the reasons given, leave to call further evidence was at the hearing refused. It followed that the appeal was dismissed. | ```yaml
citation: '[2006] EWCA Crim 3187'
date: '2006-12-19'
judges:
- LORD JUSTICE PILL
- MR JUSTICE HODGE
``` |
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:
2015/0946/A6
Neutral Citation Number:
[2015] EWCA Crim 1621
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Friday, 31 July 2015
B e f o r e
:
LADY JUSTICE SHARP DBE
MR JUSTICE EDIS
HIS HONOUR JUDGE PEGDEN QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
CHRISTOPHER MOORE (AKA NEWTON)
- - - - - - - - - - - - - - - - - - - - -
Computer-Aided Transcript of the Stenograph Notes of
WordWave International Limited trading as DTI
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Non-Counsel Application
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE EDIS: Christopher Moore, who is also known as Newton, is now aged 28 years old. On 20th January 2014 in the Crown Court at Preston he pleaded guilty to four offences of common assault contrary to section 39 of the Criminal Justice Act 1988. On 28th February 2014 sentences of three months' imprisonment were imposed consecutively on each offence, totalling 12 months. That sentence was suspended for 18 months.
2.
Section 39 of the Criminal Justice Act 1988 reads as follows:
"39. Common assault and battery to be summary offences.
Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both."
3.
Count 1, putting a person in fear of violence by harassment, and count 6, assault occasioning actual bodily harm, were ordered to lie on the file against the applicant on the usual terms. Counts 2 to 5 had been indicted as offences of assault occasioning actual bodily harm, but pleas to section 39 offences were accepted. Because the indictment contained counts which were triable either way, the summary offences under section 39 of the 1988 Act were properly included on the indictment by virtue of section 40 of the same Act which, by section 40(2) provides:
"(2) Where a count charging an offence to which this section applies is included in an indictment, the offence shall be tried in the same manner as if it were an indictable offence; but the Crown Court may only deal with the offender in respect of it in a manner in which a magistrates' court could have dealt with him."
The maximum aggregate term that a Magistrates' Court may impose on any one occasion for more than one offence is six months, unless it is sentencing for two or more either way offences, in which case it is 12 months (see section 133(1) and (2) of the Magistrates' Courts Act 1980). Amendments to change that position are pending but not yet in force. It follows from this that the sentence of 12 months' imprisonment suspended for 18 months was unlawful and must be quashed.
4.
The appellant requires an extension of time for 342 days in which to apply for leave to appeal against the sentence, his applications having been referred to the full court by the Registrar. In circumstances of this kind the court will commonly grant long extensions of time necessary to correct unlawful sentences, an example of such a case where the principles which apply were explained is
R v Thorsby
[2015] EWCA Crim. 1
,
[2015] 1 Cr.App.R (S) 63
. We therefore grant the necessary extension.
5.
It is now necessary to turn to decide what sentence should be imposed instead of the unlawful term imposed by the Recorder.
6.
The appellant and his victim were in a relationship which began in 2013. Perhaps they still are. When the relationship began she was a serving police officer, although by the time the appellant came to be sentenced in February 2014 she had resigned. He moved in with her and the relationship rapidly became turbulent, involving violence from time to time.
7.
The four offences for which the Recorder imposed the sentences occurred in the following circumstances. In May 2013 the offence which gave rise to count 2 on the indictment was committed. The victim was in the spare room of their house, keeping out of the appellant's way. When he came into the room he grabbed her right wrist and bit it, causing indentation and bruising.
8.
About four weeks later they took their dogs for a walk. They had an argument. The appellant dragged one of the dogs back to the car and got into the driver's seat. The victim followed him. Because he was not insured to drive the car she reached in through the window of the car to get the keys. As she did this the appellant put the electric window up, trapping her arm and causing bruising. This became count 3.
9.
On 25th June 2013 the victim was lying in bed when the appellant came into the room and punched her legs as hard as he could. This caused her pain for some time afterwards. That became count 4 on the indictment.
10.
On 17th August 2013, the appellant and his victim were at home. The victim was getting ready to go to her sister's wedding when an argument started, again in some way involving the dogs. Whilst she was sitting on the sofa the appellant kicked and punched her. He threatened to set fire to one of the dogs, causing the victim to sit in front of the dog's cage and to throw a glass of water over him. He grabbed a pair of scissors and cut her fringe before taking hold of her nail polish remover and threatening to pour it over the dog and set fire to the dog. That became count 5.
11.
When she returned from the wedding she reported these incidents to the police, making a full statement of complaint which appears to have resulted in his arrest, charge and remand in custody. Later she retracted that statement and said that she did not want to give evidence against him.
12.
By this time the appellant had already acquired a number of previous convictions. These occurred between 2006 and 2012 and amounted to convictions for six offences. In 2006 he committed an offence of harassment and a restraining order was made. In October 2010 he was convicted of another offence of harassment, committed against his former partner, and was sentenced to two months' imprisonment. Whilst serving that term he was convicted of an offence of doing an act of cruelty to a child and wounding or inflicting grievous bodily harm and was sentenced to a total of two years' imprisonment. In May 2012 he received a further term of 10 months' imprisonment for an offence of perjury. The Recorder sentencing him on the occasion with which we are concerned did so on the basis that this record of previous offending involved domestic violence.
13.
A pre-sentence report was obtained which revealed that he minimised his responsibility for his behaviour and had little awareness of the risk that he posed. The report contained the opinion that the behaviour reflected on the indictment formed part of an ongoing pattern of domestic violence behaviour. It opined that he posed a serious and imminent risk of serious harm to partners and children which was said to be very high. The report recommended the imposition of a suspended sentence. By the date of sentencing it appears that the appellant had been in custody for something over five months.
14.
The complainant wrote a letter to the judge stating that she wished to resume her relationship with the appellant. The judge took that into account. He also recited the history of previous convictions and noted that although there was no serious harm caused during the four incidents, that cumulatively they clearly crossed the custody threshold. Because he had already served the equivalent of a significant prison sentence and because of the attitude of the victim, the Recorder said that he was able to pull back from an immediate custodial sentence and did so. In determining the term of the suspended sentence, the judge said that he had given the appellant full credit for his guilty plea.
15.
We agree with the judge that these offences taken together clearly passed the custody threshold. The Sentencing Guideline Council Domestic Violence Overarching Principles published by the Sentencing Guideline Council in 2006 says, in its introduction:
"This guideline makes clear that offences committed in a domestic context should be regarded as being no less serious than offences committed in a non-domestic context. Indeed, because an offence has been committed in a domestic context, there are likely to be aggravating factors present that make it more serious."
Repeated bullying violence against a single victim exploiting a relationship is serious, even where no serious physical injury occurs.
16.
The attitude of the victim is dealt with in the same guideline which suggests that the fact that the parties wished their relationship to continue may be relevant. It says this:
"4.1 As a matter of general principle, a sentence imposed for an offence of violence should be determined by the seriousness of the offence, not by the expressed wishes of the victim.
4.2 There are a number of reasons why it may be particularly important that this principle is observed in a case of domestic violence:
• it is undesirable that a victim should feel a responsibility for the sentence imposed;
• there is a risk that a plea for mercy made by a victim will be induced by threats made by, or by a fear of, the offender;
• the risk of such threats will be increased if it is generally believed that the severity of the sentence may be affected by the wishes of the victim.
4.3 Nonetheless, there may be circumstances in which the court can properly mitigate a sentence to give effect to the expressed wish of the victim that the relationship be permitted to continue. The court must, however, be confident that such a wish is genuine, and that giving effect to it will not expose the victim to a real risk of further violence. Critical conditions are likely to be the seriousness of the offence and the history of the relationship."
No doubt it was with this in mind that the judge decided to suspend the sentence taking into account the views of the victim, despite the worrying previous record of this appellant.
17.
In our judgment, this guideline should not be read as an encouragement to take this course too readily. Rather, it can be read as emphasising the need to exercise real care before imposing a more lenient sentence than would otherwise be the case because of representations on behalf of the victim. Such care is clearly necessary and such a course should not be lightly taken.
18.
Events were to prove that this was a case where that course was not appropriate. On 23rd February 2015, a year after the imposition of the suspended sentences with which we are concerned, the appellant was before the Crown Court again. He had committed yet further offences against the same victim. On this occasion he received concurrent terms of six months which were imposed for three offences of common assault and two of battery, and three months for two offences of criminal damage. This means that before the second anniversary of the start of their relationship this appellant had been convicted of nine offences of violence against his victim. This is despite the fact that he had been remanded in custody before both sentencing hearings and had not been at liberty for all of that period.
19.
On that occasion in February 2015 the suspended sentence was not imposed because new defence counsel, Miss Jane Dagnall, had realised that it was unlawful. She therefore submitted successfully that it would not be right to impose it or any part of it. The judge acceded to that submission. On this occasion too the appellant was the beneficiary of support from his victim. She refused to co-operate in the prosecution again, which again caused the Crown to accept pleas to summary only offences, giving rise to the same limit on the court's powers as had existed in 2014. The sentencing judge was concerned about the prosecution's approach to this case for reasons which should be obvious. The Criminal Justice Act 2003 hearsay provisions were enacted in part to address this very problem. However, the position was a fait accompli as far as he was concerned and he was limited to six months' imprisonment which he imposed. He observed that one of the offences before him involved pouring petrol over the victim and standing over her with a lit blow torch in order to terrify her. That offence can be considered in the light of the history of the earlier offences which included threats to set fire to the dog as well. The sentencing judge on that occasion, Judge Newall, observed:
"How anyone thinks that is a section 39 is beyond me. If it had been properly charged and there had been a conviction, my own view is that that itself would have come very close to the threshold for dangerous offender sentences but we are not in that league for reasons which I do not understand in this case."
The sentence imposed in February 2015 resulted in his almost immediate release. The suspended sentence imposed on 28th February 2014 was suspended for 18 months and the appellant has been at liberty since very soon after the sentencing in February 2015. The sentence is not therefore entirely academic, although its operational period of suspension will come to an end in late August 2015, a few weeks hence.
20.
What has transpired since February 2014 is not of course relevant to the outcome of the appeal. We have indicated that the cases taken together passed the custody threshold. The maximum available term was six months but there had been guilty pleas for which full credit was given. The Sentencing Guideline Council on Guilty Pleas considered precisely this situation at paragraph 5.7. It provides that in this situation some modest allowance should normally be given against the total sentence for the entry of a guilty plea. No doubt that is right in principle.
21.
The Sentencing Guideline Council guideline on new sentences under the 2003 Act deals with suspended sentence and says that before the decision is taken to suspend the sentence the period must be fixed. Therefore in principle, in our judgment, these sentences should have been four months concurrent on all four section 39 offences suspended for 18 months. The fact that this is inadequate in all the circumstances of this case is a product of the decisions taken by the Prosecuting Authority. We are unable to judge whether the decisions taken in 2014 and again in 2015 were appropriate. We do however echo Judge Newall's observations and are concerned, as he was, that justice may not have been achieved in this case. No doubt the Crown Prosecution Service will consider at an appropriate level what lessons may be learned from this unhappy history.
22.
With no enthusiasm at all, we quash the sentences and impose instead a concurrent term of four months' imprisonment on each, suspended for 18 months, with effect from the date when they were imposed at the Crown Court, 28th February 2014. Although these sentences are individually longer than the consecutive terms of three months imposed by the judge, taking the case as a whole the appellant is not more severely dealt with on appeal than he was by the court below and this result is within our jurisdiction. To that extent this appeal is allowed.
23.
LADY JUSTICE SHARP: I wish to echo the words of my Lord in relation the court which now should be taken in relation to this case. It is the view of this court that this demonstrates a particular problem in relation to the charging of offences of domestic violence which should be enquired into at the highest level. | ```yaml
citation: '[2015] EWCA Crim 1621'
date: '2015-07-31'
judges:
- LADY JUSTICE SHARP DBE
- MR JUSTICE EDIS
- HIS HONOUR JUDGE PEGDEN 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
CASE NO 202100525/A1
NCN
[2022] EWCA Crim 44
Royal Courts of Justice
Strand
London
WC2A 2LL
Tuesday 18 January 2022
LORD JUSTICE HOLROYDE
MR JUSTICE LAVENDER
SIR NIGEL DAVIS
REGINA
v
GRAHAM JOHNSON
__________
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 L WALKER & MS J ROBINSON
appeared on behalf of the Applicant.
MR T PROBERT-WOOD
appeared on behalf of the Crown.
J U D G M E N T
1.
LORD JUSTICE HOLROYDE: In 2014 this applicant pleaded guilty to a phone hacking offence. He was sentenced to 2 months' imprisonment, suspended for 12 months, and ordered to carry out 100 hours of unpaid work. He now applies for an extension of time of more than 6 years to apply for leave to appeal against his sentence. His application has been referred by the single judge to the full court.
2.
We can summarise the relevant facts briefly. The applicant is a journalist and author. Between 1997 and 2006 he was employed by the Sunday Mirror newspaper, mainly reporting on crime. In 2001 he was required by his superiors to work on a story relating to a television actress who was thought to be having an affair with a criminal. He was shown by one of his superiors how to intercept the actress's voicemail communications. During a period of a few days in autumn 2001 he listened to between 10 and 30 of her messages each day. He was also required to monitor the actress at a hotel. He disliked being involved in that activity and ceased his work on the story. He was however credited as one of the authors when a story about the actress was later published by the newspaper.
3.
The applicant continued to be employed by the Sunday Mirror, though he says he was placed under considerable pressure by his superiors because he would not participate in any further phone hacking. He eventually left that employment and suffered what has been described as a mental breakdown, which resulted in his being unable to work for about 6 months.
4.
In the years which followed the applicant wrote a number of books. In one, entitled "Hack", he wrote about his experiences as a tabloid journalist and referred to incidents of phone hacking of which he was aware, though without naming those responsible.
5.
In 2012 the applicant provided assistance to a journalist who was investigating the phone hacking scandal. He did so not for financial reward but rather because he wanted to make amends for what he himself had done.
6.
On 14 March 2013 a number of persons were arrested on suspicion of being involved in phone hacking offences committed by employees of Mirror Group Newspapers. The applicant was not one of them. He was not at that stage suspected of involvement. However, he contacted the police on 15 March 2013 and confessed that he had taken part in phone hacking. Arrangements were made for him to be interviewed by the police. In preparation for that interview he gave to the police a very lengthy statement setting out what he knew.
7.
The applicant was charged with an offence of intentionally intercepting a communication in the course of its transmission by means of a public telecommunication system, contrary to section 1 of the Regulation of Investigatory Powers Act 2000. That offence carries a maximum sentence of 2 years' imprisonment. On 6 November 2014, at Westminster Magistrates' Court, he indicated a plea of guilty and was committed to the Crown Court for sentence. We are satisfied that the committal was ordered pursuant to section 3 of the Powers of Criminal Courts (Sentencing) Act 2000, though it is wrongly recorded in some court documents as having been ordered under a different power.
8.
Having admitted his own role in phone hacking, the applicant provided a witness statement to the police later in November 2014. He subsequently provided information and assistance to claimants in civil proceedings whose phones had been hacked.
9.
On 18 December 2014 the applicant appeared at the Central Criminal Court before the Recorder of London, HH Judge Barker QC. The applicant was then aged 46. He had one previous conviction, long ago and for a different kind of offence, which was rightly viewed by the judge as having no bearing on the sentencing. A pre-sentence report had been prepared which put forward proposals for non-custodial disposals, and the judge had been provided with a number of supportive references.
10.
Counsel then appearing for the applicant invited the judge's attention to a schedule which had been prepared showing the sentences imposed earlier that year on a number of Mirror Group employees by Saunders J. Counsel pointed to the short duration of this applicant's offending; his voluntary withdrawal from work on the story and from further phone hacking; the fact that he voluntarily went to the police; the co-operation he had given, and was willing to give in future; the passage of some 21 months between his going to the police and the sentencing hearing; and his remorse. In relation to these features of the applicant's mitigation, counsel contrasted the positions of others, sentenced by Saunders J, who had been involved in much more phone hacking activity over much longer periods. Some of those persons had held senior positions.
11.
The judge in his sentencing remarks described the applicant's offending as "an intense but short period" of phone hacking. He observed that the public, quite properly, regarded such offences as very serious. He referred to the matters of mitigation which had been put forward, noting that the background of the case had been gone through in considerable detail and he was aware of it. He indicated that the applicant was in a different category. He noted that the applicant had written a full letter of apology to the victim of the particular hacking in which he was involved, and had made an offer to assist her in any other steps that she might take. The judge then said this:
"Simply put, you abused your professional position for that short period. Nevertheless, I am in a position -- this court is in a position -- to deal with this case in an unusual way because of your unique individual circumstances. In my view, this must be marked by a custodial sentence, but it will be suspended and it will be as short as I can properly make in the circumstances. That will be one of two months but it will be suspended for twelve months. I think the original starting point would have been three months and I reduce it to two months on the basis of the fact that you reported yourself and you cooperated in every way, and I do underline that it seems to me from all I have read that you have assisted and cooperated."
12.
The judge imposed the suspended sentence and unpaid work requirement to which we have referred. He ordered the applicant to pay £300 prosecution costs and also made an order for "whatever the appropriate victim surcharge is".
13.
Because the offence was committed prior to 1 April 2007, no surcharge was applicable. Thus "the appropriate surcharge" as ordered by the judge was nil. The court subsequently drew up an order purporting to show a surcharge of £80. That was wrong, and did not accord with the sentence pronounced by the judge. The record must be corrected to show that no surcharge was payable. The clerical error does not render the sentence unlawful.
14.
The applicant was entitled to be advised by his legal representatives as to whether there were any arguable grounds of appeal against his sentence. Such advice was offered, but he declined it. He took no steps to commence an appeal.
15.
In the years which followed, the applicant's career was badly affected by his actions and by his conviction and sentence. Despite his ability as a journalist he found it difficult to obtain work.
16.
On 22 February 2021 the applicant gave notice of his application for leave to appeal against sentence. He sought a long extension of time on the basis that his mental health had been adversely affected by his prosecution and conviction, to the extent that he could not apply his mind to the issue of a possible appeal.
17.
In July 2021 the single judge, as we have said, referred the applications to the full court. After she had done so, in September 2021, Mr Walker (counsel now representing the applicant) provided the court with a revised version of his grounds of appeal. Although referred to as "Amended Grounds of Appeal" it seems to us that it contained no change of substance from the original, and is more properly to be regarded as perfected Grounds of Appeal. Thus the requirement in Criminal Procedure Rules rule 36.14(5), applicable to an application to vary grounds of appeal, does not apply in this case.
18.
In December 2021 a report dated 14 December 2021 by Dr Michael Watts, a consultant clinical neuropsychologist, was submitted in support of the application for an extension of time.
19.
If granted the extension of time and leave to appeal, the applicant puts forward a number of grounds of appeal. He submits that the imposition of a custodial sentence was wrong in principle, arguing that a non-custodial sentence was appropriate and that the very short length of the prison term shows that a community order would have been sufficient. He further submits that the judge failed to give sufficient weight to the various matters of personal mitigation, in particular arguing that the judge's failure to refer to the assistance given to the police investigation into the hacking showed that the judge had not taken that factor into account. He also submits that there was unjust disparity between the sentence imposed on this applicant and the sentences on others dealt with by Saunders J. Finally, he submits that the applicant should have been treated as a whistleblower not a criminal, and that the sentence imposed on him was wrong in principle because it deterred others from reporting crimes.
20.
Mr Walker has expanded upon his written grounds in his oral submissions to us this morning. We have also heard oral submissions from Mr Probert-Wood on behalf of the respondent. We are grateful to both counsel for their assistance.
21.
Before considering the merits, we must refer to the important procedural aspect of this application. This court does of course have power to extend the 28-day time limit for serving a notice of appeal against sentence (see Criminal Procedure Rules rule 36.3). Rule 36.4 requires a person who wants an extension of time to make an application giving the reasons for it. That requirement is not satisfied merely by explaining why notice of appeal could not be given within 28 days: the applicant must also explain, particularly if a long extension of time is sought, why the notice was not filed sooner that it was.
22.
In the present case, the evidence of Dr Watts is that the applicant has unfortunately suffered from periods of depression and anxiety throughout his adult life, both before and after his prosecution and conviction. His general practitioner had prescribed antidepressant medication before the sentencing hearing, and it seems that the applicant continued to take such medication until about 2017 or 2018. Dr Watts gave his opinion that it was likely that the applicant "was suffering from a major depressive episode in the months prior to and after the sentencing hearing" and further expressed the opinion that the depression may have contributed to the applicant feeling unable to make a proper decision about appeal "in the period after sentencing".
23.
We are sympathetic to the applicant's mental health problems, and we can readily accept that he has gone through difficult periods when he has suffered episodes of depression. It is however clear that, despite those episodes, he has been capable of working for most of the last 6 years, and has been able to contribute significantly to assisting the civil litigants who were the victims of hacking. If his application for an extension of time only required him to satisfy the court that he could not realistically commence his appeal within 28 days, he could do so. But, as we have noted, he also needs to explain why no action was taken for more than 6 years. We are not persuaded that any satisfactory explanation has been put forward in relation to much of that period. In our view the applicant, if he wanted to seek leave to appeal, could and should have made his application long before he did.
24.
We have nonetheless considered whether the merits of the appeal are sufficiently strong to assist the applicant to overcome that obstacle. Our conclusions are as follows.
25.
First, we reject the submission that a custodial sentence was wrong in principle. Phone hacking, even for a short period, is a serious offence. The judge, having considered all the many mitigating factors which were fully put before him, was entitled to conclude that the offence was so serious that neither a fine alone nor a community sentence could be justified for it. We would observe that although the Sentencing Council's Imposition guideline was not in effect at the time of the sentencing hearing, the judge's approach was consistent with the approach now required by that guideline.
26.
Secondly, and with all respect to counsel, the submission that the length of the prison sentence is in itself a clear indication that a community sentence would suffice is untenable. The Crown Court may impose on an adult offender an immediate prison sentence of as little as one day, as is recognised by the early release provisions in section 243A of the Criminal Justice Act 2003. Imprisonment for between 14 days and 2 years may be suspended (see section 277(2) of the Sentencing Code). That statutory provision is in itself sufficient to show that this particular submission cannot succeed. The judge was satisfied that the offence was so serious that nothing less than a custodial sentence could be justified. He then had to consider what the shortest term was consistent with its seriousness. His conclusion, that a term of 2 months was appropriate, does not of itself indicate that a custodial sentence was wrong in principle.
27.
Thirdly, we are unable to accept the submission that the judge failed to give appropriate weight to the mitigating factors. We accept that there was indeed considerable mitigation. But it is clear that the judge took it all into account, and he was entitled to conclude that its overall effect was to enable him to limit the term of imprisonment to 2 months and to suspend it.
28.
Lastly, the test in cases of suggested disparity, as laid down in
R v Fawcett
(1972) 56 Cr App R(S) 391, requires this court to consider whether right-thinking members of the public would consider that something had gone wrong with the administration of justice, such that this sentence should be reduced. Submissions were made to the judge as to the sentences passed in other phone hacking cases. He clearly took the view that although those other cases were more serious, the present offence merited a sentence of 2 months' imprisonment. Numerous decisions of this Court show that the
Fawcett
test is not easily satisfied, especially when an appellant seeks to rely on a comparison with sentences imposed by a different judge on a different occasion. As was made clear in
R v Anderson
(David Brian)
[2018] EWCA Crim 482
, this court must consider, in accordance with the statutory test, whether the present sentence was either wrong in principle or manifestly excessive in length.
29.
Having reflected on the submissions made to us, we can see no basis on which it could be argued that this sentence fails either limb of that test. We understand why the applicant may feel that he was treated more severely than others, and we recognise that his admission of guilt has brought heavy consequences upon him, quite apart from the sentence of the court. It is much to his credit that he volunteered his admissions and provided assistance as he did. We think that the judge was right to distinguish him from others by placing him into a different category and by referring to his unique case. But even giving as much weight as we can to all those matters, we can see no basis on which this short suspended sentence can be challenged.
30.
For those reasons, even if the applicant could overcome the procedural obstacle which he faces, an appeal could not succeed. This application accordingly fails and is refused.
Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400
Email: [email protected] | ```yaml
citation: '[2022] EWCA Crim 44'
date: '2022-01-18'
judges:
- LORD JUSTICE HOLROYDE
- MR JUSTICE LAVENDER
- 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}
======
| If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2022] EWCA Crim 985
No.202103770 A4
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 23 June 2022
Before:
LORD JUSTICE WILLIAM DAVIS
MR JUSTICE FRASER
MRS JUSTICE MAY
BETWEEN
:
REGINA
v
CRAIG ANDREW GLADWIN
REPORTING RESTRICTIONS APPLY
Section 1 of the Sexual Offences (Amendment) Act 1992 applies in this case. No matter relating to any complainants shall be included in any publication during their lifetimes if it is likely to lead members of the public to identify them as the persons against whom offences were committed. Reporting restrictions therefore apply in this case.
__________
MR L. KERR
appeared on behalf of the Applicant.
THE RESPONDENT
was not present and was not represented.
__________
JUDGMENT
MR JUSTICE FRASER:
1
This is a renewed application for permission to appeal against a sentence of life imprisonment imposed upon the applicant on 1 November 2021 in the Crown Court at Kingston upon Hull by Mr Recorder Woolfall. The applicant had pleaded guilty on 23 October 2021, which was to be the first day of a trial. The sentences passed by the learned recorder were for three separate counts of rape against three different women. The indictment had originally included four complainants, but the applicant offered pleas on what is called a "full-fact basis” in respect of three of the complaints only and these were accepted. Count 10, relating to the fourth complainant, was ordered to lie on the file, together with some assorted other lesser counts.
2
We deal, therefore, only with the offending to which the applicant has pleaded guilty and for which he was sentenced.
3
On one of the counts of rape, rape three, he was sentenced to a discretionary sentence of life imprisonment, with a minimum term of 11 years and 9 months less his time that had been spent on remand. On the other two counts of rape, he was sentenced to 10 years’ imprisonment for each. Those sentences to run concurrently. On two other charges of criminal damage, he received two sentences each of two months’ imprisonment also to run concurrently. He also received the relevant ancillary orders requiring notification under the
Sexual Offences Act 2003
.
4
Mr Kerr has appeared before us today for the applicant, renewing his application for permission to appeal, that application having been refused by the single judge.
5
We shall deal with the facts briefly. This is not to be taken as undermining the seriousness of the offending or the impact that the events will have had on each of the three victims.
6
The first offence of rape was against B1, who was in a relationship with the applicant between March and June 2018. She described the applicant as always being jealous, but he started to become aggressive as well.
7
On 15 June 2018, the applicant and B1 went to a public house. B1 had had a medical procedure in relation to a termination and that day was still experiencing some effects from that. The applicant became aggressive with some other people in the pub and had to be told by the bar staff to calm down.
8
After the applicant and B1 left the pub together, the applicant grabbed her phone and started to read through her messages. He then smashed the phone. That constituted one of the two counts of criminal damage.
9
When they got home, the applicant made sexual advances to her, but she told him she did not want to have sex with him. It is, of course, every person’s right to decide whether to consent to sexual relations; a point which appears to be entirely missed by the applicant.
10
The applicant then removed his belt and put it around her neck. She managed to get her hands between the belt and her skin before he started to tighten it. She begged him, saying, “Please don't do this”. He let her go and matters calmed down. They made up and began to have consensual sex. However, the applicant then became aggressive and slapped her across her face and also spat in her face. She immediately told him to stop as she no longer consented to the sex, but he would not stop. He put his hands around her throat and, when B1 was unable to push him off, she pretended to become unconscious in the hope that this would scare him to stop him. Instead, he slapped her twice and wanted to know why she was pretending. He continued to have sex with her and ejaculated inside her. Not long after the rape, the relationship between them ended. At that time, the applicant told B1 that he had started seeing someone else.
11
B1 suffers very considerable and severe psychological effects from this event and from her relationship with the applicant and cannot even bring herself to talk about it at counselling sessions.
12
The applicant then began a relationship with B2 towards the time of the end of his relationship with B1. On 31 August 2018, B2 and the applicant had a row on the way home together, after having been out socially, and the applicant became insulting and snatched her phone.
13
At home, she followed the applicant upstairs to recover the phone and found him going through her messages and he claimed she was having sex with another male. He then threw her against the bed, put his hands around her throat and started strangling her. She lost consciousness and, when she came around, he called her “a slag”. He then calmed down and asked her to join him on the bed. She refused and he then told her, “You are not leaving this house alive”. He then smashed her phone against the wall. This is the second count of criminal damage. B2 was terrified as the applicant would not let her leave. He grabbed her, pulled her on top of him, saying that he wanted sex. He ripped at her clothes and forcibly removed her underwear. She tried to push him off, but he got on top of her and forced himself inside her and raped her. Afterwards she lay on the bed crying.
14
Neighbours who heard the commotion called the police. The fact that people outside the property realised these offences were being committed makes clear the extent of B2’s ordeal. Officers attended and arrested the applicant who denied rape. He was released under investigation.
15
Whilst on bail for the two offences that we have just described, the applicant met B3. He would routinely check the messages on her phone and answer her telephone calls. He did not like her going out and was jealous of the thought of what he said were other men looking at her. After an argument between B3 and the applicant at a social event, on the following morning she went to his home to collect the medication that she took for depression and anxiety. As she walked up the stairs, he followed her and, when she entered the bedroom, he slammed the door behind them. When she said she needed to leave to collect her son, the applicant told her she could not leave. He kept telling her to lie on the bed. She refused but eventually gave in and sat on the bed. The applicant then grabbed her by the hips and said, “Well, to be honest with you, I may as well rape you, I am off to prison, anyway, so I may as well make it a hat trick”. He laughed and said, “I'm scaring you now, aren't I?” These are plainly degrading and humiliating comments deliberately designed to exacerbate her ordeal.
16
The applicant then pulled her trousers and underwear down and threw her on the bed. He digitally penetrated her vagina and said he wanted sex. She was crying and begging him to stop. He raped her and ejaculated inside her and then, some time later when she was trying to leave and get dressed, he raped her again, ejaculating inside her again. Only then did he let her leave.
17
These are dreadful and serious offences even within the context of what is itself a serious offence. There are numerous aggravating factors. It must have taken great courage on the part of the three victims to come forward.
18
In his sentencing remarks, the recorder carefully considered the relevant steps that were required in order for him to arrive at the relevant sentence. As he observed, these incidents were terrifying, violent and also prolonged. Two of the victims were strangled, which is an incredibly dangerous thing to do to anyone. One of the victims lost consciousness as a result. B1 was still unwell on the day that she was raped and, indeed, was bleeding from her termination. The applicant was wholly unconcerned about any of this. All of the victims were in a relationship with the applicant in which he was manipulative and controlling as well as violent. They have all suffered severe psychological harm as a result of what he has done.
19
There can be no complaint about the recorder’s categorisation of each of the rapes, with the lead offence falling into Category 1A and the other two into Category 1B. There can be no complaint about the way in which the recorder arrived at a view of the proper length of sentence at 17 years 6 months, reduced from 20 years to reflect the applicant’s guilty pleas, translating into a minimum term, by applying two thirds, which resulted in the period of 11 years 8 months.
20
The sole ground of appeal is that a discretionary life sentence was unduly pessimistic as regards the assessment of the future risk of the applicant and that this, therefore, resulted in a sentence which was manifestly excessive.
21
Mr Kerr submits that a determinate sentence could suitably manage risk presented by this applicant, given his commitment to change. We are unpersuaded by these submissions.
22
Although the applicant had only one previous conviction, which was assault of a constable - in that offending he had put the officer in a headlock- the pre-sentence report author clearly thought that he was highly dangerous to any future partner and our view is that he plainly was and is.
23
Here there were three violent sexual assaults of rape on three successive partners over the course of a period of two and a half years, with strangulation of two of them and forcible detention of one. One of the incidents of strangulation caused the victim to lose consciousness. The third rape was committed whilst the applicant was on bail for the first two. The recorder correctly went through the necessary analysis required by the case of
Crown v. Burkinstas
and was perfectly entitled to conclude that a discretionary life sentence was justified, since he could not say when the applicant would cease to represent a significant risk of serious harm to women.
24
In our judgment, there is nothing even arguably wrong with the analysis and the conclusions reached by the learned recorder. We entirely agree with his analysis and it is not reasonably arguable that the assessment of risk by the sentencing recorder was unduly pessimistic, or that his conclusion that a discretionary life sentence was required was wrong, or that it has resulted in a sentence that is manifestly excessive.
25
We, therefore, refuse this renewed application which is thereby dismissed.
__________ | ```yaml
citation: '[2022] EWCA Crim 985'
date: '2022-06-23'
judges:
- LORD JUSTICE WILLIAM DAVIS
- MR JUSTICE FRASER
- MRS JUSTICE MAY
``` |
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
[2024] EWCA Crim 543
No. 202302026 B5
Royal Courts of Justice
Thursday, 3 May 2024
Before:
LADY JUSTICE WHIPPLE
MR JUSTICE WALL
HER HONOUR JUDGE LUCKING KC
REX
V
PETER CURRIE
__________
Transcript prepared from digital audio by
Opus 2 International Ltd.
Official Court Reporters and Audio Transcribers
5 New Street Square, London, EC4A 3BF
Tel: 020 7831 5627 Fax: 020 7831 7737
[email protected]
_________
MR T COKE-SMYTH
appeared on behalf of the Appellant.
MR C AYLOTT KC
and
MR A HENDREN
appeared on behalf of the Crown.
_________
JUDGMENT
LADY JUSTICE WHIPPLE:
1
The applicant was convicted on 22 May 2023 of fraud by false representation, fraud by abuse of position and converting criminal property following a trial at Southwark Crown Court before HHJ Griffith. He was sentenced to a total of five years and six months’ imprisonment. He now renews his application for leave to appeal against conviction following refusal by the single judge, Sir Nigel Davis. He also seeks an extension of time of three days in which to make that application. The reasons for seeking that extension are set out in the solicitor’s email dated 15 March 2024 and are not attributable to any failure by the applicant personally.
2
The appeal relates to certain evidence which the trial judge ruled admissible. That evidence comprised a series of emails from Mr Tool, a solicitor, to the applicant. The applicant argued at trial that those emails should be excluded on the basis that they were covered by legal professional privilege. The basis for that assertion was that Mr Tool was jointly instructed by the applicant and a company called Collateral (UK) Limited (“CUL”). The judge disagreed with the applicant’s argument and ruled that Mr Tool’s emails were admissible as evidence in the case.
Facts
3
Given the narrow compass of the grounds of appeal, the facts can be relatively shortly stated. They are set out in some detail in the Criminal Appeal Office summary which the applicant and his advisors have seen. CUL was involved in peer-to-peer investing which was run by the applicant and his brother. The applicant was prosecuted by the Financial Conduct Authority (“FCA”) who alleged that CUL did not have FCA authorisation to conduct the type of lending that it offered.
4
At the time CUL was incorporated, the applicant had a consumer credit licence for another company called Regal Pawnbroker Limited (“Regal”). Regal’s licence had been granted by the Office of Fair Trading in February 2013 and only permitted Regal to make short-term loans to individuals secured against the assets that they provided. On 1 April 2014, the FCA took over responsibility for the supervision of Regal’s licence. From that point forward, Regal was required to obtain permission to trade from the FCA.
5
Whilst the application for full permission was being completed, Regal obtained an interim permission (“IP”). When Regal applied for IP the applicant was the named contact. The FCA confirmed by email that Regal had been granted IP and that Regal should apply for full authorisation by 31 March 2016. Regal was given a reference number 656714 for use on the Interim Permission Consumer Credit Register (“the IP Register”). Firms with IP could log onto the online portal, connected to the IP Register, to make changes to their details.
6
The prosecution alleged that the applicant sold Regal, that on 6 October 2015 new directors were appointed to Regal, that on 8 October 2021 the applicant’s login details were used to change Regal’s registered address to the address of the new owners and that on 25 November 2015 Regal’s name was formally changed to Fitzwilliam Black but the IP Register was not updated to reflect this change of ownership or name.
7
On 12 December 2015, the applicant’s login details were used to change the IP Register so that Regal’s name was changed to CUL and the registered address was changed to an address in Manchester. The changes suggested that CUL had IP and was authorised by the FCA.
8
On 14 December 2015, the applicant represented to a prospective investor that CUL had IP. On 15 December 2015, the applicant told an external advisor that CUL had IP and the applicant provided a screenshot from the FCA website, forwarding to the advisor the email from the FCA which referred to Regal and the applicant stating in his email:
“You will notice it was for Regal Pawnbroker. We have since restructured the company and have changed the trading name to Collateral.”
9
The application for full FCA authorisation for CUL was submitted on 23 March 2016. The application stated that the IP for CUL was 656714, the reference number to which we have already referred, and that CUL had IP for consumer credit transactions. During the application process CUL also retained the services of the law firm DWF Law LLP (“DWF”) and within that firm a solicitor named Richard Tool.
10
By January 2018 the FCA had discovered that the name on the IP register had been changed from Regal to CUL. The FCA wrote to the applicant on 29 January 2018 to tell the applicant that CUL did not have IP and it could not conduct regulated activities until it was authorised to do so. The FCA confirmed that CUL was a separate legal identity from Regal and CUL could not use Regal’s IP. The FCA gave notification that CUL must remove all references to being authorised from its website and promotional material. On 8 February 2018, the applicant confirmed to the FCA his intention to withdraw CUL’s application for authorisation.
11
On 12 February 2018, the FCA wrote to the parties that it had concluded that CUL’s trading had been in breach of the general prohibition in conducting regulated activities without authorisation. The FCA instructed CUL to cease all lending activities through its website with immediate effect and notified CUL that carrying out regulated activity without authorisation was a criminal offence. That was basis of count 1, namely, the court of fraud by false representation.
12
On 14 February 2018, Andrew Currie, the applicant’s brother, was reappointed as director of CUL. The following day, £275,000 was removed from CUL’s client account and paid to a company named Auri Developments (“Auri”). Auri was owned by Andrew Currie’s partner, Sarah Gayton. At the time of the payment the applicant was the sole signatory to the CUL bank accounts. Auri was not named as either an investor or borrower by the administrators for CUL. The prosecution alleged that the £275,000 was utilised to purchase two properties and the rest was spent by Sarah Gayton. This was the basis of count 2, fraud by abuse of position.
13
Between 13 and 26 February 2018, shortly before CUL entered into administration, the applicant and his brother transferred a total of £372,299.52 from CUL’s Santander bank accounts to personal accounts held by Andrew Currie with Halifax, Bank of Scotland and Lloyds. The payment references stated these transfers were “broker fees” or “BF” and each referred to loans held on the CUL platform and were for approximately two per cent of the loan value. The prosecution alleged that, in fact, these payments were the proceeds of the criminal conduct represented by count 1.
14
CUL appointed Gordon Craig of Refresh Recovery to put CUL into administration. CUL entered administration on 28 February 2018. The FCA was not informed. Subsequent investigation by the FCA revealed that the applicant and the appointed administrator were known to each other; in fact, they were listed as friends on social media. Bank statements showed a payment of £88,000 from CUL’s company account to Refresh Recovery. The FCA subsequently and successfully applied to the High Court to overturn the administrators’ appointment and BDO were then appointed as the administrators. These facts gave rise to count 3, converting criminal property.
The Ruling
15
The judge ruled on the defence submission to exclude Mr Tool’s emails on 18 April 2023. The defence had submitted that email conversations between Mr Tool and the applicant were protected by joint legal professional privilege as the advice was given by Mr Tool to the applicant both in his capacity as the company’s representative and as an individual. The judge was referred to the guidance in
R (on the application of Ford) v Financial Services Authority (defendant) and Johnson and another (interested parties)
[2011] EWHC 2583 (Admin) which both parties agreed was the leading authority. The defence submitted in the alternative that the emails should be excluded under s.78 of the Police and Criminal Evidence Act 1984 because they were more prejudicial than probative. Counsel for the prosecution submitted that the advice given by Mr Tool was given to the applicant acting only as the company’s agent so that no joint privilege existed and that, in any event, the probative value of the material outweighed any possible prejudice so that s.78 should not operate to exclude that material.
16
In his
ex tempore
ruling, the judge ruled that the test set out in
Ford
was not met. He concluded from the emails that the advice being given by Mr Tool was on how the company should proceed with regard to there being any action by the FCA. There was no documentary evidence to support the defence submissions. Mr Tool had not given a statement to the FCA. Mr Tool was a solicitor of some standing and if he had thought at any time that he was acting for the applicant in an individual capacity he would have known that and said so, but he had not said that. There was no letter of engagement. The judge concluded:
“So my view is that, applying the test in
Ford,
it has not been made out to my satisfaction at all on the civil standard that this was a lawyer acting for Peter Currie when giving that advice… it is a long way short of that, in my decision.”
17
The judge rejected the defence’s application to exclude the emails under s.78. The judge concluded that the reference made by Mr Tool to the applicant in the first of those emails, namely that “you are going to find it difficult to run the line that this was an honest mistake” could be properly dealt with by giving a suitable direction to the jury. Taken as a whole, he concluded that the emails were more probative than prejudicial, showing the state of mind of the applicant and his brother at the material time, particularly in the context of counts 2 and 3. The judge agreed with the Crown’s case and refused the application under s.78.
18
The judge went on. He addressed the defence submissions that they wished to cross-examine Mr Tool, noting that Mr Tool had never been on the Crown’s list of witnesses and that the defence could have called Mr Tool themselves but had not sought to do so.
19
When he gave his legal directions the judge directed the jury on the evidence in terms which are not now the subject of any challenge (noting that the draft directions had been circulated between counsel in advance of being delivered to the jury). The judge told the jury that the only relevance of the emails was to show that Mr Tool was not aware of the name change on the IP Register until he was told about it by the FCA and that that was all.
Grounds of Appeal
20
In their written grounds of appeal Mr Aylott KC and Mr Hendren advance two grounds of appeal that:
1.
the judge erred in refusing the application to exclude the emails between Tool and the applicant; and, in the alternative
2.
the judge erred in refusing the application to exclude the emails under s.78 of PACE.
In helpful oral submissions before us this morning, Mr Aylott KC has elaborated these points. He has focused, in particular, on the content of an email dated 30 January 2018, which he says demonstrates the expansion of the retainer from having been a single retainer in favour of CUL to being a joint retainer for Mr Tool to advise both CUL and the applicant in his individual capacity. Mr Aylott has taken us through the content of that email in some detail.
21
This appeal is resisted by the Crown. They have lodged a respondent’s notice and Mr Coke-Smyth has appeared before us today.
22
We thank all counsel involved in this case for their admirable focus on the core issues in this case.
Conclusion
23
The single judge concluded that the judge was justified in reaching the conclusion that there was no joint privilege established on the evidence in this case and that it was within the judge’s discretion not to exclude the emails. In short, we agree with the single judge and with the reasons put forward by the Crown.
24
In relation to ground 1 and the question of joint privilege, the leading authority is
Ford
. That case distinguishes at para.40 between advice given to an individual as a client on the one hand and advice given to another but in which the first individual is interested because it impacts on his personal position on the other. The judge correctly identified this distinction. He applied the test in
Ford
and found the facts, if anything, to fall within the latter category in that the advice was given to CUL, although it was of some interest to the applicant in his personal capacity, but still there was a single retainer in favour of the company.
25
The applicant was unable to establish that he had communicated with Mr Tool, or sought his advice, in a personal capacity and not merely as the representative of CUL. Certainly, Mr Tool did not indicate in any evidence that was before the court that he understood the instruction to be a joint instruction from CUL and the applicant. Mr Tool was not called to give evidence to establish that fact, nor did the applicant give evidence to establish that fact. The judge was left with the documentary evidence, such as it was, from which he was asked to draw the inference of joint instruction. The judge concluded that the material fell far short of that and that in consequence the applicant had failed to meet the burden of establishing the joint instruction to the civil standard.
26
In our judgment, it is not realistically arguable that the judge was at fault in reaching the evaluation that he did on the basis of the material that was before him. This was quintessentially a matter for the judge. The applicant would face a high hurdle in overturning the judge’s finding on appeal.
27
In submissions today, Mr Aylott has suggested that the absence of attendance notes by Mr Tool is itself significant, and is something the judge should have taken into account. In our judgment, that argument fails at the first hurdle because the applicant has offered no evidence that there were other meetings and occasions when Mr Tool was present and offered advice, to substantiate the allegation that material which should have been disclosed is missing. There was no sound basis on which the judge could have concluded that material was missing or, indeed, could draw any inference to the effect that the absence of that material was significant.
28
For those reasons, put in summary, we refuse leave on the first ground.
29
In relation to ground 2, there was clear probative value to the prosecution case in Mr Tool’s emails. Their importance was in showing that the applicant had not told Mr Tool that he had altered the IP Register in advance of Mr Tool receiving notification of that from the FCA; further, that CUL was, to the applicant’s personal knowledge, advised at an early stage of the seriousness of the issues that were being raised by the FCA, yet the applicant remained involved in the transfer of money out of CUL, which transfers are highly relevant to counts 2 and 3 (those transfers took place after 30 January 2018).
30
The issue which the judge had to weigh in considering the application under s.78 was whether the prejudice to the applicant outweighed the probative value. With the foresight of legal directions to the jury on the way that they could use the emails, he concluded that any possible prejudice would be mitigated. The fact that CUL had received that advice was an important point for the prosecution case.
31
In all the circumstances, the judge was entitled to conclude that the emails were properly admissible and should not be excluded on the basis of their possible prejudicial effect under s.78.
32
In any event, we have considered the wider picture. In our judgment, there was substantial other evidence to support this prosecution and we do not doubt the safety of this conviction.
33
We refuse this application for leave to appeal. In those circumstances, there is no reason to extend time and we also refuse that application also. If we considered there to be merit in the grounds of appeal, we would have been willing to extend time.
__________ | ```yaml
citation: '[2024] EWCA Crim 543'
date: '2024-05-03'
judges:
- LADY JUSTICE WHIPPLE
- 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.
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 1898
Case No:
201503372 B2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT MAIDSTONE
HIS HONOUR JUDGE BYERS
T20137235
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
13/12/2016
Before:
LORD JUSTICE McCOMBE
MR JUSTICE WILKIE
and
HIS HONOUR JUDGE ROOK QC
(sitting as a Judge of the Court of Appeal (Criminal Division))
- - - - - - - - - - - - - - - - - - - - -
Between:
Adam VOHRA
Applicant
- and -
REGINA
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr J Kearney
(instructed by Bhandal Law Limited) for the
Applicant
Mr B Temple
(instructed by the
Crown Prosecution Service) for the
Respondent
Hearing dates: 25 November 2016
- - - - - - - - - - - - - - - - - - - - -
Judgment Approved
Lord Justice McCombe:
1.
On 23 October 2013 in the Crown Court at Maidstone, before HHJ Byers, the appellant pleaded guilty to count 2 of the indictment in this case, charging him with Conspiracy to Evade the Prohibition on the Importation of a Controlled Drug of class B (amphetamine). Count 1 of the indictment charged him with a similar offence in respect of cocaine to which he pleaded “not guilty”. His sentence on count 2 was adjourned pending the trial on count 1. On 11 November 2013, after trial before the same judge and a jury, the appellant was convicted on count 1. On 3 July 2015 he was sentenced to 12 years’ imprisonment on count 1 and to 6 years’ imprisonment to be served concurrently to the sentence on count 2, giving rise to a total sentence of 12 years’ imprisonment. What follows explains the delay between conviction and sentence in the appellant’s case.
2.
There were two co-accused who stood trial with the appellant. First, there was a man called Draper-Smith who pleaded guilty to both counts and to a further charge of unlawful import of cigarettes. He applied for leave to appeal against conviction; the application was refused by the Single Judge of this court and has not been renewed. The second co-accused was a man called Machin in respect of whom the jury could not reach a verdict; they were discharged and re-trial was ordered. Machin came for re-trial together with seven other defendants in respect of the same conspiracy in April/May 2015 before HHJ Griffith-Jones QC. In the meantime, the appellant had declined an invitation to be sentenced prior to the conclusion of that trial. He renewed his application for an extension of time of 7 months and 10 days for leave to appeal against conviction following refusal of that application by the Single Judge. The renewed application came before us on 7 October 2016 when, along with giving other directions, we granted leave to appeal.
3.
The appeal arises out of a complaint by the applicant as to prosecution disclosure at his trial. The facts of the underlying conspiracy alleged can be shortly summarised. From a time in 2011 the police deployed an undercover officer, using the alias “Terry”, who posed as a freelance lorry driver and he developed a contact with the co-accused, Draper-Smith. In the prosecution case, the Crown adduced evidence from Terry as to dealings with Draper-Smith during 2012 in which smuggling of cigarettes, amphetamine sulphate and cocaine were discussed. There were a series of “cigarette” runs between the continent and this country in July, August and September 2012 in which Terry and Draper-Smith were engaged. In the autumn of that year (October and November) the discussions between Draper-Smith and Terry moved to importing amphetamine and cocaine. In April 2013 the appellant and Machin became involved.
4.
What happened then was as follows. On 11 April 2013 Draper-Smith told Terry that drugs were now available for import and meetings followed at a pub in Kent. On 12 April Draper-Smith told Terry that he was going to introduce him to new people working for another co-accused called Willett (known by the alleged conspirators as “Land Rover Man”) whom Terry already knew. Terry was told that that a consignment of 100 kilos of amphetamine and 5 kilos of cocaine was “ready to go”. On 15 April, on the directions of Draper-Smith, the appellant and a man called Oldham came to the same pub. The discussions were recorded by Terry, but the quality of the recording was poor and the Crown relied upon Terry’s oral evidence as to what transpired at the meeting. Terry’s evidence was that the appellant’s role was to be the arranging of the handover of drugs to Terry in the Netherlands, the handover to the next handler in the UK and the onward distribution in this country. They were to meet again to finalise arrangements.
5.
There was a further meeting on 18 April 2013 between Terry and Draper-Smith at the same location at which it was intended that Oldham would introduce Terry to the man to whom the drugs were to be handed over. The applicant and Machin, at that time the intended recipient of the consignment, then arrived at the venue and what transpired was recorded both on audio and video. Machin was introduced as the man to receive the drugs. The appellant, it was said, also said that he had negotiated the purchase of 50 kg of amphetamine from a contact in Spain and there was discussion about this. Terry said that at the end of the meeting he arranged with the appellant for the handover of the drugs and a location for that handover was settled. Terry duly collected drugs from the Netherlands and returned to the agreed venue where handover was effected, not to Machin but to two further conspirators called Alliston and Long. At that stage the police descended and the arrests followed.
6.
The defence case was simply that the applicant had been offered to be a party to the importation of amphetamine by Willett. He attended the meetings for that purpose and that purpose alone, never intending or agreeing to be involved with the import of cocaine which was, however, mentioned at both the meetings on 15 and 18 April. When the subject arose, he said, he simply kept quiet, not wishing to get involved in that matter with men whom he had not previously met. He said that after the second meeting he disposed of his phone implicating him in the meetings and withdrew from the enterprise entirely. It is submitted that there was and is no demonstrated connection between the applicant, on the one hand, and Alliston and Long on the other. Alliston and Long eventually received the drugs later in April 2013, as we have mentioned. The applicant was arrested in Nottingham within minutes of the swoop on Alliston and Long and telephones recovered at that time showed no link between the appellant and those two men.
7.
During the course of the applicant’s trial Terry was cross-examined on the basis that it was he who had driven the discussion about the drugs deal at the meeting on 15 April and that neither the applicant nor Oldham made any reference to cocaine. Terry’s evidence was that there was a roundtable discussion in which all participated. The reason for the absence of material from the transcript of the recording was that the quality of it was so poor. Mr Kearney, who appeared for the appellant at trial, as he did before us, put to Terry that he was lying about that.
8.
The jury proceeded to convict the appellant on count 1.
9.
The procedural history thereafter appears from a written open ruling of Judge Griffith-Jones QC of 28 May 2015. At the re-trial, at an early hearing, orders were made for the disclosure of certain material underlying the records of the undercover investigation. Some, it was said, had relevance to the credibility of Terry and had become the subject of a PII applications before Judge Griffith-Jones prior to trial. At that stage disclosure was refused both on grounds of relevance and on public interest grounds. However, as a result of cross-examination of Terry by counsel for a defendant called Lee, concerning a meeting on 24 April 2012, about a year before the involvement of this appellant, the Crown disclosed a de-briefing note of the meeting. It was suggested that the note did not record any suggestion that cocaine had been discussed with Lee. This led to a further PII hearing in relation to other material, which the judge described in his ruling as becoming “protracted”. Ultimately, the judge did rule that certain further information relating to the meeting on 24 April 2012 should be disclosed notwithstanding the Crown’s resistance. The judge considered that the disclosure might be relevant to the credibility of Terry in relation to other defendants and ordered that disclosure should be made to them also.
10.
At that stage, for public interest reasons, the Crown decided that they could not make the disclosure required and decided not to proceed against other defendants.
11.
This turn of events prompted applications to be made by Willett, Oldham, Machin, Draper-Smith and the appellant to vacate the various pleas that that had been entered by them in relation to certain of the charges. In the case of the appellant, the application was made to vacate his plea of guilty to count 2 to which we have referred. The judge refused all the applications, largely because the pleas amounted to unequivocal admissions of guilt of the offences concerned and that non-disclosure that had emerged in the case could not be categorised as any abuse of process on the part of the Crown. Further, the material in issue in reality only bore real relevance to the case of Lee, rather than the cases of those other defendants. He said,
“The significance of the relevant information was that it went to Terry’s credibility. I would also add, incidentally, that it related directly only to the case against Mr Lee and, whilst disclosable more generally, had only indirect (and in some cases only marginal) relevance to the case against the other applicants.”
12.
It is now submitted on the appellant’s behalf that his conviction is unsafe on count 1 because the Crown has failed to disclose, before his trial, such material as appeared to Judge Griffith-Jones potentially to be relevant to the credibility of the witness, Terry. It is submitted that if the applicant had stood his trial with the others, the likely result would have been that he too would have been acquitted on the basis of the Crown’s unwillingness to proceed in the face of the order for disclosure of the material relating to the meeting with Lee in April 2012 and the failure to resist disclosure on public interest grounds. His position, it is said, would have been no different from that of Machin, who was initially tried with him and was later acquitted when the Crown declined to proceed against him at the re-trial.
13.
At the hearing on 7 October 2016, after hearing Mr Temple for the Crown in private, we ordered the Crown to disclose to the appellant’s representatives the materials which they had already disclosed to Mr Lee’s defence team at the re-trial, i.e. a de-briefing note of 24 April 2012 relating to the meeting with Mr Lee and others on that day. We also directed disclosure of the sound recordings of the meeting and an audio aide-memoire compiled by Terry shortly after he had left the scene of the meeting on the same day. We saw no need to direct any further disclosure.
14.
The meeting on 24 April 2012 had two parts: a first part when Draper-Smith, Terry and a man identified as George were present and a second part after Lee arrived.
15.
Having seen and heard these materials, Mr Kearney pointed out the poor quality of the sound recordings and that most of the exchanges are inaudible, save for Terry’s own contributions. There are, he submitted, no recorded discussions with Mr Lee about cocaine, just as the appellant says there was no active discussion between him and the others about cocaine at the meetings a year later.
16.
Mr Kearney pointed to three particular passages in the materials which he said could not be justified in the light of the absence of corresponding materials on the recordings. First, he picked out this from the transcript of Terry’s aide-memoire voice recording after the meeting on 24 April 2012:
“…I went over the Spanish problem about me getting legitimate work first, we discussed prices and the prices were pretty much agreed that it would be £250 per kilo on the green, about £2500 on cocaine, in relation to wiz or the fast one, amphetamine sulphate, I was asking for £1500 they were saying they paid the same as cannabis which was about £250, so they said that wasn’t viable…” (p.22 line 2-7)
In the debriefing note, the following appears:
“”We went over the run and commodity as follows. Green £250 a bit, white Percy asked for £2500 a bit. Nathan asked me about the fast one (A/sulphate). I said £1500 a bit and he said that was too much and would pay £250 per bit…” (End of page 27 line 203)
Mr Kearney argued that this in turn was inconsistent with the note for the period when only Terry, Draper-Smith and George were present which took this form:
“He (Percy) asked me how much I would charge for the white and I said £1500-00 per kilo. Percy said his people may pay as much as £2500 or even £3000 per bit so if he said if I could get that price would I give him £500 per bit as a drink and I said I would..” (End of page 23 into page 24)
17.
Mr Kearney argued that this type of discrepancy, relating to the April 2012 meeting, suggested viable further material that could have been deployed at the appellant’s trial to seek to discredit Terry before the jury.
18.
Without descending into the detail, Mr Kearney also argued that there was a discrepancy between Terry’s evidence and an audio recording of a conversation between him and one of the co-accused called Wheat while collecting the consignment in the Netherlands. This material was put to Terry at the appellant’s trial and Terry said that the discrepancy was to be explained by the fact that part of the written record was his “perception” of what was being communicated overall. Mr Kearney argued that the discrepancy was an issue going to the credit of Terry which would have been reinforced by the material from 24 April 2012, had it been available.
19.
Mr Kearney further submitted that it simply was not fair that, because the appellant was tried first in the October of 2013 and separately from the other defendants, including Machin for a second time, he was deprived of the likelihood of acquittal when the Crown declined to proceed in the face of Judge Griffith-Jones’s decision to order further disclosure from the Crown. He said the result was “unfair” and referred us to passages from the judgment of Lord Hope of Craighead in
McInnes v Lord Advocate
[2010] UKSC 7
at [20] and [24], cited by Lloyd-Jones LJ, giving the judgment of this court in
Garland
[2016] EWCA Crim 1743
at paragraphs 36 and 37. In the second passage Lord Hope said this:
“The question which lies at the heart of it is one of fairness. The question which the appeal court must ask itself is whether after taking full account of all circumstances of the trial, including the non-disclosure in breach of the appellant’s Convention right, the jury’s verdict should be allowed to stand. That question will be answered in the negative if there was a real possibility of a different outcome – if the jury might reasonably have come to a different view on the issue to which it directed its verdict if the withheld material had been disclosed to the defence.”
20.
Mr Temple for the Crown argued that the conviction on ground 1 was safe. He argued that the differences in terms used in the records of the meeting of 24 April 2012 were not true discrepancies at all. He submitted that the fair reading of the transcripts and by listening to the oral recording (which had been possible for counsel but not for us) was that at the first part of the meeting Terry had been pretending that his price for shipping cocaine would be £1500 per kilogram. Draper-Smith had indicated that he believed that it would be possible to extract a higher price. Terry said that £1500 per kilogram was his minimum, but that “if you can get up to those sorts of numbers then I will give you a money [£500] for every bit [kilo]…”.
21.
When Lee joined the meeting somewhat later, Terry played along with getting a higher price. In what, Mr Temple said was the crucial passage on this topic, Terry is recorded as saying, “Looking at about fifteen (inaudible) something like that, fifteen-ish for the (inaudible), for the white [cocaine] or anything else is obviously going to be considerably more”. By this stage, argued Mr Temple, Terry was pitching for £1500 per kilogram for amphetamines and looking for more for cocaine. Shortly after this, an unidentified speaker (who the Crown contended was Lee) said, “Fifteen hundred quid that’s far too much…” (meaning, said Mr Temple, amphetamine). Then Terry said, “Yea, but I’m bringing it in on there aren’t I. What are you paying on that at the moment”. “Not a lot (inaudible)…”, said the unidentified speaker (Lee?), “…On the coke (inaudible) talking good money (inaudible)…green [i.e. cannabis]”.
22.
Mr Temple submitted that this type of price haggling, actually recorded, was quite consistent with the subsequent notes made after the meeting in which figures are recorded, not always identical but reflecting the bargaining process that went on. He argued that the passages to which we have referred, together with one further passage on the recording for the period when Lee was present, showed that “white” or cocaine was discussed; the issue was Lee’s participation/agreement in the proposal to ship cocaine.
23.
Having made these submissions, Mr Temple submitted that the conviction was safe, there had been (as Judge Griffith-Jones found at the later trial) no breach of the Crown’s disclosure obligations. Thus there was no potential for “unfairness” from such a breach in any event, since there was nothing in the additional material that either reflected on the credit of Terry in any event and none of it had any relevance to the important discussions involving the appellant a year later.
24.
In our judgment, Mr Temple is correct. There was no breach of the Crown’s obligations of disclosure in this case. The proof of that is that Judge Griffiths-Jones found that there had been no breach, at the much later stage of proceedings, when he initially ruled that none of the material in issue had relevance in the trial that was to be conducted before him. The potential relevance in Lee’s case only emerged after cross-examination conducted by counsel for Lee.
25.
In the present case, the same applied. There was no relevance of this material apparent at the disclosure stage. At the appellant’s trial, when Mr Kearney cross-examined Terry upon his evidence as to the business transacted at the April 2013, we do not consider that anyone could reasonably have been expected to think that the further materials which we have seen about a meeting a year earlier involving other people could have any relevance, even given the line of challenge to Terry’s evidence that Mr Kearney was pursuing.
26.
In our judgment, for the reasons given by Mr Temple, we do not consider that anything in the materials involving Lee in April 2012 had relevance to the events involving this appellant a year later.
27.
As demonstrated by the judgment of this court in
Garland
(supra), the question for us is whether the additional material causes us to doubt the safety of the appellant’s conviction, having regard to the question of what impact that material might have had on the jury in this appellant’s trial: see the judgment delivered by Lloyd-Jones LJ at [55]. We answer that question in the negative. It seems to us that the jury in the appellant’s trial had before it all material that was truly relevant to the issues before them. There was nothing in the material relating to Lee which could truly have been deployed as a test of Terry’s evidence against the appellant. The credibility of Terry was properly tested by Mr Kearney before the jury, but they returned the verdict that they did, in the face of the appellant’s evidence which they had also heard.
28.
There is nothing unfair to the appellant in the processes that followed at the re-trial of the other accused. We are not in a position to judge the material presented against Machin or his defence to that material; we make no comment upon it. It is possible that Machin was fortunate to reap the benefit of the disclosure decision made by the judge, in respect of material which the judge described as having only indirect and, in some cases, only marginal relevance to defendants other than Lee. However, that does not bear upon the safety of the appellant’s conviction.
29.
In our judgment, therefore, we have nothing that causes us to doubt the safety of this conviction and we dismiss the appeal. | ```yaml
citation: '[2016] EWCA Crim 1898'
date: '2016-12-13'
judges:
- LORD JUSTICE McCOMBE
- HIS HONOUR JUDGE ROOK 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:
201000325 C2
Neutral Citation Number:
[2010] EWCA Crim 3229
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 7th December 2010
B e f o r e
:
LORD JUSTICE MOSES
MR JUSTICE SAUNDERS
HIS HONOUR JUDGE SCOTT GALL
(Sitting as a judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - - - - -
R E G I N A
v
KYLE PARVEZ
- - - - - - - - - - - - - - -
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 T Siddle
appeared on behalf of the
Appellant
Miss K Blackwell
appeared on behalf of the
Crown
- - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE MOSES: This is an appeal against a conviction of attempted murder and having a firearm with intent in which the focus of the appeal is on the effect of a hostile witness who named the appellant as the assailant and subsequently retracted that identification. The questions that arise in this appeal are whether, in the light of that retraction, the judge ought to have withdrawn the case from the jury and, secondly, whether he appropriately directed the jury as to the correct approach to that retraction.
2.
The appellant was convicted, as we have said, of attempted murder and having a firearm with intent on 19th November 2008 at Preston Crown Court after a trial. The case had concerned an allegation that a friend of this appellant, Mohammed Beg, had been abducted and beaten up at about six in the evening on Friday 11th April 2008. Just over an hour later it was alleged that this appellant, with three other men, driven by his co-defendant, Zainul James, in a Renault Clio, had gone to a road in Preston where they had shot the victim, Dilbag Singh, in the neck at close range. It was alleged that it was this appellant who had taken the gun there and shot him and that his co-defendant, Zainul James, had struck him as he lay on the floor with a baseball bat. This appellant and Zainul James were then alleged to have got back in the car, to have driven it to playing fields nearby, wiped off fingerprints and then set it alight. The victim survived the multiple gun shot wounds to his neck.
3.
The evidence of identification of this appellant depended upon the evidence of Dilbag Singh, although the prosecution asserted that that identification was supported by other evidence which did not concern the complainant, Dilbag Singh.
4.
On 12th April 2008 Dilbag Singh made a statement in which he said he did not recognise any of the males involved in the shooting as they were all wearing balaclavas. There was evidence to support his account of the fact that the assailants' faces were concealed. Evidence was given at trial by Sameer Patel and Zakir Patel, who knew the defendants but said that the people who had attacked the victim were disguised. Samir Patel said that the gunman was wearing a balaclava with eye holes and a mouth hole and he could not tell what race or ethnic group he was. Zakir Patel, who also knew the defendants, said that there was something dark, a balaclava or bandana, covering most of his face, although he could see the upper part of the man's nose. So that evidence supported what the complainant said in his first statement. But on 16th April, some four days later, he had spoken to officers investigating the case and was recorded in their notebooks, as they told the jury, as having drawn a map of the attack and agreeing to tell the truth about the events. He said he recognised the driver as the co-defendant of this appellant, called "Zain", and the front passenger as this appellant, whom he knew as "Maj Parvez". He said that neither of them were wearing anything covering their faces, according to the account recorded by the police officers, and that the appellant had got out of the car shouting, "Baggy [that is the name by which the victim was known], you little prick".
5.
When Dilbag Singh came to give evidence to the jury he denied that conversation, but he could not deny the fact that a witness statement was made by him the following day, 17th April 2008. In that statement he said "I am going to name two people in this statement, they are Zain and Maj [this appellant]. I have known them for over five years", and he then went on to describe them, ending "This is the true account of what happened to me. The reason I gave a different account the first time was that I was scared for the safety of my family and for my community". To the jury he said that the statement was not his statement, and indeed that he had not signed it and his signature had been forged by a police officer.
6.
Some days later, on 15th May, he made a third statement through a solicitor in which he stated that he wished to retract both of his earlier statements and that he had not recognised anyone involved in the shooting. He persisted in that account when he gave evidence to the jury. The prosecution, understandably, then cross-examined him by putting to him not only what the police officers said he had said on the 16th, but also what he had written on the 17th, but he maintained his denial that his purported recognition of the appellant, and for that matter the co-defendant, was the truth.
7.
The evidence of recognition was supported to some degree by a further independent witness, a Sue Hutton, but she could really only describe the attack said to have been carried out by the co-defendant of this appellant, namely the driver with a wooden stick, who she described as bare-headed with short black hair, so that was of little support that it was possible to recognise the gunman.
8.
The evidence, however, of identification was not the only evidence in the case. There was evidence to associate this appellant with a telephone number, the last digits of which were 5214, which was a number associated with this appellant, particularly by reason of the fact that it had been used before the incident to call both this appellant's girlfriend and another close associate of him. The importance of the association with that number was that telephone cell siting could trace the route of that SIM card from the shooting to the place where the car was set alight. Further, this appellant was associated with the car that was used in the shooting and found burnt out. He was, apparently, a part owner of the car. After the shooting and the firing of the car, a key for that Renault Clio was put through the letterbox of another man, Suraj Singh, who owned the vehicle together with this appellant, in an apparent attempt to support a suggestion that the vehicle had been stolen but the key recovered. Finally, there was of course the relationship of friendship between the original victim, Mohammed Beg, who had been kidnapped, and this appellant.
9.
The judge took the view, as he explained to the jury, that none of that evidence would afford a sufficient basis to convict this appellant, but that it was additional evidence which might support the correctness of the identification by the witness Dilbag Singh who withdrew his evidence of identification.
10.
In our view, that evidence was powerful evidence to support the correctness of the retracted statement.
11.
It is contended, in careful and strong submissions advanced by Mr Siddle, that the judge ought to have withdrawn the case from the jury on two bases: firstly, on the basis of
Galbraith
that no reasonable jury, proper directed, could convict in the face of the clear retraction of the identification by Dilbag Singh, and, of equal or possibly more importance, on the basis of
section 125
of the
Criminal Justice Act 2003
, which the judge does not appear to have deployed. That section provides:
"(1) If on a defendant's trial before a judge and jury for an offence the court is satisfied at any time after the close of the case for the prosecution that -
(a) the case against the defendant is based wholly or partly on a statement not made in oral evidence in the proceedings, and
(b) the evidence provided by the statement is so unconvincing that, considering its importance to the case against the defendant, his conviction of the offence would be unsafe,
the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a re-trial, discharge the jury."
12.
That section was of particular importance in this case where the only evidence of identification came from the retracted written statement. It is said that that retraction, of itself, established that the statement was so unconvincing that it could not be relied upon by the jury.
13.
In
R v Joyce
[2005] EWCA Crim 1785
, in a case where an oral identification had been withdrawn, this court accepted that
section 125
did not impose a higher standard than that imposed in
Galbraith
, but described
section 125
as "an additional safety valve obliging a judge to direct an acquittal where the previous statements are particularly unpersuasive".
14.
In short, it is incumbent upon a judge in a case such as this, where there is a plain inconsistency and a retraction of the only direct evidence of identification, to direct himself as to
section 125
and ask whether the explanation advanced by the prosecution for the retraction is such that a jury, properly directed, could rely upon that explanation.
15.
The explanation in the instant appeal was clear, namely that the witness was too frightened to persist in naming this appellant. That was a clear issue with which the jury had to grapple and we do not think it would have been right, in the light of the supporting evidence and the explanation given by the witness, Dilbag Singh, for the case to be withdrawn from the jury. In those circumstances we reject that ground of appeal.
16.
We then turn to how the judge dealt with the hostility of that witness in his summing-up. The directions clearly called for careful assistance to be given to the jury so that they faced the undoubted inconsistency between what the witness had said at first and subsequently and what he was alleged to have said both orally to the police and was subsequently put down in the written statement. There was no way of reconciling the two versions and the jury had to be directed as to the very great care with which they should approach that question in the light of the known fact that the witness had contradicted himself and no longer wished to maintain his identification of the appellant.
17.
Mr Siddle contended that the judge was obliged to direct the jury in accordance with both
Golder
[1960] 45 Cr App R 5
and
Maw
[1994] Crim LR 841 in the sense that given that the evidence of Dilbag Singh contradicted itself, the jury could not give any credence to such a witness (see second paragraph, page 842).
18.
We reject that submission. The
Criminal Justice Act 2003
, and in particular
section 114
, changed the law in an important and radical respect. Even in the case of a witness made hostile by cross-examination on behalf of the prosecution, the statement that the witness retracts may be evidence of its truth and it is for the jury to determine whether the circumstances in which it was made and the contents of the statement are such that, notwithstanding its retraction, it can be safely, despite caution and care, relied upon.
19.
In his directions to the jury, the judge, having consulted with counsel before speeches in an entirely correct and appropriate way, did, in our view, make it clear to the jury that they should consider the plain inconsistencies and contradictions in the evidence of Dilbag Singh, and that if they thought that there was no explanation for them they should reject his evidence. He also made it sufficiently plain to the jury that if they rejected Dilbag Singh's identification evidence of this appellant, then the case was at an end. He said:
"So look with particular care at the evidence of identification. If you are not sure that a defendant was correctly identified in Parvez's case by the one witness Singh, and in James's case by Singh and later by Newsham, then the entire case against them must fail because although there is some additional evidence in the case relating to the car, the telephone and other matters to which I shall refer, the other evidence in the case would not be sufficient on its own to found a conviction. It may provide some support to the identifications but it would not be enough on its own for you to be able to say that you are sure that the man who fired the gun was Parvez ..."
20.
Later in that part of his directions he reminded the jury to be careful about the weight they attached to what Dilbag Singh had said outside court to the police officers when the jury had no opportunity to hear or see him say that, and subsequently directed them as follows:
"You may regard him [that is Dilbag Singh], because of the inconsistencies between the statements that have been made, as a witness who has been unreliable.
You might regard him as a witness upon whom you would either not place much if any reliance or if you do place reliance upon him you would consider that you would have to be very careful in assessing him and be very cautious before relying upon any part or parts of what he said or what he signed his name to."
21.
The directions in relation to this aspect of the case were lengthy. We have to bear in mind that the jury did not read them in the way the Court of Appeal reads summings-up. There was no written copy of this given to the jury and we have to bear in mind the impression that this part of the summing-up would have made upon the jury and its impact on them. Reading it as a whole, and looking at it in its correct context by reading the summing-up as a whole, it is clear to us that the jury were faced with the correct choice, namely, given the inconsistencies, whether they were sure that the account he withdrew was the accurate, reliable and truthful account or whether they were not. That was the fundamental question for them and it was properly left to them.
22.
Criticism was made of the judge in that he did not follow the Crown Court guidelines as to how the direction would be given, which were the ones that have now been superceded. Those directions suggested that the judge should say to the jury "You may take into account any inconsistency and the witness' explanation for it when considering his reliability as a witness". The direction went on to deal with the question of the impact of a serious conflict "between the account he gave in court and his previous account. You may think that you should reject his evidence altogether and not rely on anything said by him either on the previous occasion or when giving evidence". The difficulty with that direction in this case is that it was not a question of taking into account any inconsistency and judging the extent and importance of it, the inconsistencies were indisputable, their importance was indisputable. That was not the issue at all for the jury. The issue for the jury was whether they were sure that it was fear that had led the witness to retract that earlier statement or that the earlier statement was truthful and reliable or whether they were not sure. In the latter case the witness was wholly blown and the jury could not rely upon it. If they took the view that the explanation advanced by the prosecution for the retraction was the truth and the explanation for the undoubted inconsistency, then, subject to caution, as we have said, there was no reason why they should not act upon it. In those circumstances the direction advised in the earlier Bench Book would not have been appropriate in this case.
23.
For those reasons we have come to the conclusion that the judge did not misdirect or confuse the jury in the directions he gave. In that event, and having regard to the rest of the evidence to which we have drawn attention, we take the view that that ground of the appeal fails and this appeal is dismissed.
24.
MR SIDDLE: I wonder whether your Lordships would grant me seven days to consider what your Lordships have said in relation to the second ground of appeal, with a view to inviting their Lordships to consider an application to the House of Lords.
25.
LORD JUSTICE MOSES: If you can formulate the issue, we will certainly give you seven days and send it to us in writing.
26.
MR SIDDLE: Thank you very much. | ```yaml
citation: '[2010] EWCA Crim 3229'
date: '2010-12-07'
judges:
- LORD JUSTICE MOSES
- MR JUSTICE SAUNDERS
- HIS HONOUR JUDGE SCOTT GALL
``` |
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 144
Case No:
200904742 D1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT
(Mr. Recorder Bartle Q.C.)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
8 February 2011
Before :
LORD JUSTICE MOORE-BICK
MR JUSTICE JACK
and
HIS HONOUR JUDGE STEPHENS QC
(sitting as a Judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - - - - - - - - - - -
Between :
THE QUEEN
Respondent
- and -
ADAM CREED
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Paul Garlick Q.C. and Miss Charlotte Powell
(instructed by the
Registrar of Criminal Appeals
) for the
appellant
Mr. John Lynch
(instructed by the
Crown Prosecution Service
) for the
respondent
Hearing dates : 16
th
December 2010
- - - - - - - - - - - - - - - - - - - - -
Judgment
Mr Justice Jack :
1.
This renewed application for leave to appeal raises questions as to the admissibility of bad character evidence when a jury is determining pursuant to
section 4A of the Criminal Procedure (Insanity) Act 1964
whether an accused person did the act or made the omission charged against him as the offence.
Section 4A
comes into play following a determination by a judge pursuant to
section 4
of the Act that an accused is not fit to be tried. The court has been assisted by the submissions of Mr Paul Garlick QC on behalf of the applicant, Adam Creed, and has had the advantage of written submissions from Mr John Lynch for the Crown provided at the request of the Registrar for the assistance of the Single Judge, which Mr Lynch has supported before us orally.
2.
Mr Creed faced a single charge of burglary. The indictment alleged that on 6 April 2007 having entered Belvoir House, Vauxhall Bridge Road, as a trespasser, he stole electronic goods. On 29 June 2009 in the Crown Court at Southwark His Honour Judge Stone QC heard evidence as to his mental state and determined pursuant to
section 4
that he was unfit to be tried. A jury was later empanelled before Mr Recorder Bartle QC to determine the issue under
section 4A
, and on 7 August 2009 the jury found that he had committed the actus reus of burglary. During the course of that hearing the Recorder admitted evidence of the previous convictions of Mr Creed for burglary. On 30 October 2009 Mr Creed was made subject to a hospital order under
section 37 of the Mental Health Act 1983
.
3.
Belvoir House is a block of flats. In the early hours of 6
th
April 2007 someone entered the reception area and forced their way into the adjoining security room. Disinfectant and bleach were thrown around. The total damage was estimated at £4,920. In addition three items of electronic equipment were stolen. The prosecution case against Mr Creed rested on his DNA being found on a screwdriver which had apparently been used to effect a forcible entry, and on CCTV footage which the prosecution said showed Mr Creed hanging about outside the building. During the course of the hearing the jury heard evidence that Mr Creed had been convicted of non-dwelling house burglaries on 21 December 2003, 26 August 2004, 16 March 2006 and 16 April 2007. They heard no details of the circumstances of those convictions.
4.
The Recorder had given leave for the admission of the convictions in evidence in a ruling delivered on 6
th
August 2009. The application had been made under section 101 (1) (d) of the
Criminal Justice Act 2003
and showing propensity was relied upon. In his ruling the Recorder addressed the questions raised in
Hanson
[2005] EWCA Crim 824
,
[2005] 2 Cr. App. R 21
. It was not submitted to him that section 101 did not apply.
5.
The primary submission before us is that section 101 is inapplicable in proceedings under
section 4A
of
the 1964 Act
.
6.
Section 4
of
the 1964 Act
as amended by the
Criminal Procedure (Insanity and Unfitness to Plead) Act 1991
and the Domestic Violence, Crime and Victims Act 2004 provides:
“4.
(1) This section applies where on the trial of a person the question arises (at the instance of the defence or otherwise) whether the accused is under a disability, that is to say, under any disability such that apart from this Act it would constitute a bar to his being tried.
(2) If, having regard to the nature of the supposed disability, the court are of opinion that it is expedient to do so and in the interests of the accused, they may postpone consideration of the question of fitness o be tried until any time up to the opening of the case for the defence.
(3) If, before the question of fitness to be tried falls to be determined, the jury return a verdict of acquittal on the count or each of the counts on which the accused is being tried, that question shall not be determined.
(4) Subject to subsections (2) and (3) above, the question of fitness to be tried shall be determined as soon as it arises.
(5) The question of fitness to be tried shall be determined by the court without a jury.
(6) The court shall not make a determination under subsection (5) above except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved.”
Section 4A
was added by
the 1991 Act
. As amended by the 2004 Act it provides:
“4A.
(1) This section applies where in accordance with
section 4(5)
above it is determined by a court that the accused is under a disability.
(2) The trial shall not proceed or further proceed but is shall be determined by a jury –
(a)
on the evidence (if any) already given in the trial; and
(b)
on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court under this section to put the case for the defence,
whether they are satisfied, as respects the count or each of the counts on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence.
(3) If as respects that count or any of those counts the jury are satisfied as mentioned in subsection (2) above, they shall make a finding that the accused did the act or made the omission charged against him.
(4) If as respects that count or any of those counts the jury are not so satisfied, they shall return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion.
(5) Where the question of disability was determined after arraignment of the accused, the determination under subsection (2) is to be made by the jury by whom he was being tried.”
Sections 5 and 5A deal with the powers of the court where a person has been found either not guilty by reason of insanity or unfit to plead and to have done the act or omission charged against him. The alternatives are the making of a hospital order, a supervision order, and an absolute discharge.
7.
The law relating to the introduction of evidence of bad character in criminal proceedings is found in Chapter 1 of
Part 11
of the
Criminal Justice Act 2003
. Sections 100 and 101 relate to ‘non-defendant’s bad character’ and ‘defendant’s bad character’ respectively. Section 100 begins:
“100(1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if … .”
Section 101 begins:
“101(1) In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if …. .”
Section 101(1)(d) permits evidence to be given which “is relevant to an important matter in issue between the defendant and the prosecution”, and by section 103(1)(a) such matters include:
“the question whether the defendant has a propensity to commit offences of the kind with which he is charged, …”
Section 112(1) provides definitions for the purpose of Chapter 1 as follows:
““criminal proceedings” means criminal proceedings in relation to which the strict rules of evidence apply
“defendant”, in relation to criminal proceedings, means a person charged with an offence in those proceedings, and “co-defendant”, in relation to a defendant, means a person charged with an offence in the same proceedings;”
8.
So for section 101 in particular to apply the proceedings must be ‘criminal proceedings’ as defined by section 112, and the person whose bad character is at issue must be a ‘defendant’ as so defined. The definition of ‘criminal proceedings’ provided by section 112 perhaps adds little save to exclude any proceedings to which the strict rules of evidence do not apply, which proceedings might otherwise be described as ‘criminal proceedings.’
9.
The nature of proceedings under
section 4A
was considered by the House of Lords in
R v H
[2003] UKHL 1
,
[2003] 1 WLR 411
. The appellant had been charged with indecent assault and found unfit to plead by a jury pursuant to
section 4
as it then was. (That this should be decided by a judge was introduced by the 2004 Act.) It was argued that to proceed under
section 4A
to determine whether he had done the acts charged would be an abuse of process and infringe his right to a fair trial under Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The headnote to the report states: ‘the procedure under
section 4A
of
the 1964 Act
did not as a matter of domestic law involve the determination of a criminal charge and the defendant was not “charged with a criminal offence within article 6 of the Convention; and that in any event the procedure, if properly conducted, was fair and compatible with the rights of the accused person.” In the course of his speech, with which the others of their Lordships agreed, Lord Bingham said:
“14.
. . . Thus the crucial issue dividing the parties was whether the procedure did or did not involve the determination of a criminal charge.
15.
. . . It is clear that the domestic law of England and Wales does not treat the
section 4A
procedure as involving the determination of a criminal charge. When a finding of unfitness is made it is provided that the trial (meaning the criminal trial) “shall not proceed or further proceed”.
Section 4A(2)
is expressed in terms which make it clear that the task of a jury is not that carried out in a criminal trial: for reasons already given, the jury have power to acquit, but none to convict. The jury take an oath different from that in a criminal trial. There can be no verdict of guilty. There can be no punishment.
. . .
18.
. . . Whether one views the matter through domestic or European spectacles, the answer is the same: the purpose and function of the
section 4A
procedure is not to decide whether the accused has committed a criminal offence. The procedure can result in a final acquittal, but it cannot result in a conviction and it cannot result in punishment.”
10.
In the case of
Chal
[2007] EWCA Crim. 2647
, [2008] 1 Cr. App. 18 this court had to consider whether the hearsay provisions of
the 2003 Act
were applicable to proceedings pursuant to
section 4A
. The hearsay provisions of the Act follow the bad character provisions and form Chapter 2 of
Part 11
. Section 114 begins:
“114(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 ….”
11.
Section 134 defines “criminal proceedings” and “defendant” in the same terms as section 112. Section 125 provides for the court to stop a case where the hearsay statement is so unconvincing and its importance is such that a conviction would be unsafe. Section 125(3) provides that in proceedings under
section 4A
of
the 1964 Act
, where the court is satisfied that the case against the defendant rests wholly or partly on a hearsay statement and the statement is so unconvincing that considering its importance to the case against the person a finding that he did the act or omission would be unsafe, the court must direct an acquittal, or, if there ought to be a rehearing, discharge the jury.
12.
In giving the judgment of this court Toulson LJ considered two possible meanings of the phrase “criminal proceedings” as used in the provisions of Chapter 2. It could be confined to proceedings which could end in the determination of criminal guilt or the imposition of a penalty; or it could be construed more generally to include all proceedings within the compass or framework of criminal proceedings, including ancillary proceedings which cannot of themselves involve conviction or punishment, in so far as the strict rules of evidence apply.
13.
He pointed out that if the first construction was right, it did not follow that hearsay was prohibited, for it might be left by the relevant legislation to the court to fill in the gaps and devise a fair procedure. On the assumption that
section 4A
proceedings do not fall within the expression “criminal proceedings” to which the strict rules of evidence apply” because they are not criminal proceedings as such, he pointed to the fact that
section 4A
did not say that the jury had to be unanimous: but it had rightly always been assumed that the same provisions as to unanimity must apply as at a trial. Likewise with the burden and standard of proof. He continued that it is axiomatic in proceedings under
section 4A
that the jury must be satisfied by evidence which would be admissible if the defendant were on trial. He pointed to the fact that the issue of fitness to be tried might arise during a trial in the course of evidence: see
sections 4
and
4A
. So it could hardly have been intended that different rules of evidence should apply before and after the judge’s determination. He observed that the hearsay provisions might operate in favour of, as well as against, a defendant, for a defendant might himself seek to introduce hearsay evidence. As to what rules were to apply if
the 2003 Act
did not he said:
“30.
Mr Baker [counsel for the appellant] was in difficulty in suggesting what rules should apply to
section 4A
proceedings if, as he submitted, they were not criminal proceedings. His ultimate submission was that the court should apply common law rules of criminal evidence. We can see no logical reason why the court should do so and every reason why it should not do so, if, as we stress, the purpose of a hearing under
section 4A
is to mirror as closely as possible the fact-finding process at a criminal trial.”
14.
He referred to section 125(3). It had been submitted that the sub-section would only apply if the hearsay statement had been admitted under a common law exception to the hearsay rule, or by agreement. Toulson LJ said in paragraphs 33 and 34 of the judgment:
“33.
We think it unrealistic to suppose that Parliament can have had such a narrow intention in mind. It is plain in our judgment that the drafter contemplated that hearsay might be admissible in
section 4A
proceedings, whether by direct application or the provisions of that part of the Act, or by a court applying the same rules to
section 4A
proceedings as would be applicable to a trial.
34.
In our judgment, the Judge had power to admit the relevant evidence whether on the basis that Chapter 2 of
Part 11
of
the 2003 Act
applies directly to
section 4A
proceedings as a matter of statutory interpretation or whether on the basis that it does not but the court in such proceedings should adopt the same rules of evidence as would apply in criminal proceedings. It is an arid question which of those analyses is to be preferred. We can see the force of the argument in favour of the latter analysis, which avoids having to say that
section 4A
proceedings are criminal proceedings for one purpose but are not criminal proceedings for another, but it is a point of purely intellectual interest which it is unnecessary for us formally to decide for present purposes.”
15.
In an argument which had not been foreshadowed in the perfected grounds of appeal Mr Garlick sought to distinguish for the purposes of
section 4A
the bad character provisions in Chapter 1 of
Part 11
of the Act from the hearsay provisions in chapter 2 by an analysis of the wording of the relevant sections. In our view they are indistinguishable for present purpose because they each apply in “criminal proceedings”. The definitions of “criminal proceedings” and “defendant” in each chapter are the same. The bad character provisions deal with the admission of bad character evidence against defendants and non-defendants separately, whereas the hearsay provisions apply generally. But we do not think that anything turns on this. There is no equivalent to section 125(3) in the bad character provisions, but that is no surprise because there is and could be no equivalent to section 125(1) in Chapter 1.
16.
Mr Garlick relied particularly on the submission that a person in
section 4A
proceedings is not facing a criminal charge, and so is not a “defendant” as defined by section 112. We accept that he is on strong ground there: see the speech of Lord Bingham in
R v H
quoted above. The point can also be similarly made that
section 4A
proceedings are not “criminal proceedings” as so defined. But that leaves the question of how the ‘gaps’ left by Parliament in the
section 4A
procedure which were considered in
Chal
are to be filled.
17.
It was submitted to us that we should distinguish
Chal
on the ground that in the case of hearsay evidence a defendant’s representatives can assess it and make submissions as to its relevance and admissibility, whereas where previous convictions are concerned, the defendant cannot give instructions to arm his counsel with his version of the events on which a conviction is based, nor as to his situation when he was convicted, which would be relevant if, for example, he was able to say he had started on a different life. However, the very situation in which a
section 4A
hearing arises puts the defendant’s representatives at a disadvantage, for their client has been found unfit to plead. He may well be unable to give them any instructions at all. Inability to give instruction as to a bad character application would be just one aspect of that. The defendant’s representatives are able to check the records as to a conviction. However where, as here, the application is limited to the fact of the convictions, any disadvantage is much reduced. Further, where an application is made under section 101(1)(d) or (g) the court has a discretion to exclude the evidence under subsection (3) on the ground of fairness. That enables the court to take account of any particular situation in relation to bad character, which has arisen in the section for a proceeding.
18.
We are satisfied that the same general considerations as were taken into account in
Chal
in
relation to hearsay must apply to bad character applications. It is axiomatic that for the purpose of
section 4A
the jury must be satisfied of any facts they may find by admissible evidence. What if bad character has been admitted in the proceedings before the jury before the issue of fitness arises and is determined? What if the defendant wishes through his advisors to adduce evidence as to the bad character of a prosecution witness? What rules are to apply if the provisions of
the 2003 Act
do not? Accordingly, we consider that even if
section 4A
hearings are not criminal proceedings to which the strict rules of evidence apply, because they are not strictly criminal proceedings at all, the intention of Parliament must have been that the court should apply the bad character provisions of
the 2003 Act
. We do not think that
Chal
is distinguishable. It is binding on us. It was rightly decided.
19.
The second ground on which it is submitted that bad character evidence should not be submitted pursuant to
the 2003 Act
is that it results in inequality of arms between the prosecution and defendant. It is submitted that even if the defendant is not a party to criminal proceedings, his liberty is at stake. So article 6 of the European Convention on Human Rights should be applied to exclude such evidence. It is not however submitted that proceedings under
section 4A
offend human rights law. That would run into difficulties with the decision in
R v H
. It is inherent in the situation that by reason of his mental state a defendant may not be able to give his representatives instructions on particular aspects of the case or upon the case generally. In the absence of a wholesale attack on
section 4A
there can be nothing in an attack on the application of section 101.
20.
There are further proposed grounds of appeal which are of a rather different nature.
21.
The third proposed ground of appeal is that the earlier burglaries were not of the same category or description – the terms used in section 103 (2) – as the offence on the indictment in 2009 because Mr Creed’s mental state had changed. In fact there was no evidence to suggest that his mental state in April 2007 was as it was found to be in 2009 and was different to that when he committed his earlier burglaries. But in any event, we consider that the previous convictions would remain relevant to establish a propensity to burgle, even if his mental state had deteriorated by 2007.
22.
The fourth ground is that the case against Mr Creed was weak and so the convictions should not have been admitted to bolster it. In particular, reference is made to the Crown’s alleged inability to prove that the CCTV footage related to Belvoir House. The evidence in this respect was fully reviewed in the Judge’s summing up. He had also had to consider an application to exclude the evidence, which he had refused, in our view rightly. We are satisfied that there was convincing evidence of continuity in relation to the relevant material. Secondly it is said that the evidence that Mr Creed entered as a trespasser was weak. In our view the suggestion that the intruder may have had permission cannot be taken seriously. It was very far from a weak case. The CCTV evidence and the DNA evidence in fact presented a strong case.
23.
In our view, when the submissions of Mr Garlick as to the application of the bad character provisions of the
Criminal Justice Act 2003
are analysed, it becomes clear that they are bound to fail, interesting as they may be. For that reason and the reasons we have set out in relation to the other proposed grounds, we do not consider that the proposed appeal has a real prospect of success. We therefore refuse permission to appeal. | ```yaml
citation: '[2011] EWCA Crim 144'
date: '2011-02-08'
judges:
- LORD JUSTICE MOORE-BICK
- 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>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Case No:
2005/0317/B1
Neutral Citation Number:
[2005] EWCA Crim 828
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WARRINGTON
His Honour Judge D. Hughes
T20040179
Royal Courts of Justice
Strand, London, WC2A 2LL
Monday,
11
th
April 2005
Before :
THE RIGHT HONOURABLE LORD JUSTICE HOOPER
THE HONOURABLE MRS JUSTICE DOBBS DBE
and
HIS HONOUR JUDGE ZUCKER QC
- - - - - - - - - - - - - - - - - - - - -
Between :
David John Thackery
Appellant
- and -
The Crown
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Nicola Daley (instructed by Forshaws solicitors) for the Appellant
Mr Rhys Price Rowlands
(instructed by
CPS) for the Respondent
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Hooper :
1.
At the conclusion of the hearing on 22 March 2005, we announced our decision dismissing the appeal. We now give our reasons.
2.
On 9 December 2004 in the Crown Court at Warrington before His Honour Judge Hughes and a jury the appellant, now aged 42, was convicted of the indecent assault of C, aged 14. He appeals his conviction by leave of Curtis J. It is submitted that the conviction is unsafe by reason of fresh evidence. There is no dispute that the fresh evidence relates to events which occurred after the date of the conviction and that the only issue which we have to address is whether the evidence, in so far as it contradicts the evidence of C before us, is capable of belief.
3.
It is not necessary to set out the facts of the case in any detail. C gave evidence that in September of 2003, she went to the house of a friend of hers K. K was not in. C said that the appellant. K’s father, indecently touched her inside her bra, tried to kiss her and put his hand down her pants. C made no complaint until she spoke to a careers adviser at her school in the following May. She asked the advisor whether she could tell her something that she wanted to keep secret. There was no supporting evidence for C’s account. The appellant gave evidence and, as in his police interviews, denied the offence.
4.
The fresh evidence relates to an incident about which there is, in some measure, no dispute. On the Saturday before Christmas 2004, less than two weeks after the conviction, C was standing outside a chip shop waiting, so she said, for a friend to finish working there. Close to the chip shop was a group of some 15 – 18 teenagers. The four witnesses who gave evidence on behalf of the appellant said that they were part of that group. They ranged in age from 15 to 17. They were A, T, both female, and J and D, both male. All four were friends of the appellant and his family. It is clear that all four were of the opinion that the appellant was innocent of the indecent assault for which he had only recently been convicted. In their view, C had lied when she gave evidence alleging the assault. A and J believed that C had made false allegations against A’s brother. They all accepted in cross-examination that not only were they not friends with C but that they did not share secrets with her.
5.
After the application for leave to appeal, C was interviewed and her interview recorded on video. She agreed to give oral evidence before us and she did so behind a screen so that she could not see the appellant. She appeared to be genuinely distressed by the strain of giving evidence again.
6.
Although she gave evidence last, it will be easier if we set out her evidence as foreshadowed in the video interview. Apart from one alleged discrepancy relating to her having had a quarrel with K, there was no suggested inconsistency between what she said to us and what she had said in that interview.
7.
C described a history of having been bullied because she had given evidence against the appellant. She said that on New Years Eve 2004 the windows in her house were broken.
8.
As to the incident outside the chip shop, she accepts that the witnesses that were called by the appellant were there with the exception of D. She said that he was not there.
9.
She said that A came across and said to her that she was “tight for getting Dave done for rape”. C said that she had replied “she had not got him done for rape”. She denied ever saying that the appellant had not touched her, nor did she say that he had not done anything. She denied saying anything about giving a false story because she had been bullied. She did not mention the name of JB. She knew JB but she was not a friend. She did not mention the name of K. She said that A said that “if you don’t drop the charges I will kill you” and that J, A’s boyfriend, said “you can’t accuse people of rape”. She said that T came half way through the argument and was the first one to leave. C described A as drunk. She said, in cross-examination, that she only started crying after A had had a go at her.
10.
We should add that the false rumour that the appellant had attempted to rape C had certainly been circulating within the community although for how long is not clear. A confirmed this and so did the appellant when he gave evidence at the trial. At the trial he described hearing a rumour around Christmas 2003 that he had attempted to rape C and that he had banned her from the house. The prosecution challenged this. It was inconsistent with the evidence of C at the trial (and before us) and the appellant had not mentioned it to the police in interview.
11.
A, aged 15, described in evidence seeing C crying and went over to say “what’s up?”. A said, after some hesitation, that C had replied “Dave never raped me”. A accepted that she had been drinking vodka but denied that she was drunk. A said that C said that she had “got bullied” into saying that she had been raped. In cross-examination she gave this version of events. She said to C “what’s up?”, to which C replied “he never raped me”. A then said “you’re tight for getting Dave done for rape”. Her boyfriend then joined in saying she could not go around accusing people of rape. A denied threatening C.
12.
If that was all the evidence in the case then our task would be easy. A would have been confirming C’s evidence that she only denied that the appellant had raped her. Although C denies making any reference to bullying, it would not necessarily undermine C’s evidence if she had, in fact, said something about bullying, given her evidence about bullying.
13.
A’s boyfriend, J, said that A and he had walked over. The two girls spoke and then A said “tell him what you have just said”. C then said that “David didn’t do anything”, a different account to that given by C and A. According to J, C said that JB had bullied her into saying it. He then said that he had heard nothing else.
14.
In cross-examination he gave a different account of the start of the incident. He described A and T walking over and he coming over in the group after that. In his statement provided to us (which he signed on the morning of the appeal), he gave a different account. He described C as crying outside the chip shop and T as standing with her. He said he asked A to go and speak with C. He said he saw A speaking to C and the next thing that happened was C was saying that she had been bullied into making the allegations against the appellant. Although that inconsistent statement was not put to him, it is something that we can take into account. It shows not necessarily that he is lying but that there is confusion in his mind as to precisely what happened.
15.
We turn to the evidence of T, aged 16. Immediately after the incident, on the evidence of the appellant’s wife which was read, T came and saw her and said that C had admitted that she had made up the allegation “as pay back to my daughter K with whom she had had an argument and fall out”. That led to the involvement of the appellant’s solicitor’s who took a statement from T and then later took statements from others who were present.
16.
T described C as crying and said that she went over to see what was wrong with her. T said “what’s up with you?” to which C replied “he didn’t do it”. T then said “who didn’t do it?” to which C replied “Dave didn’t touch me”. She said she could remember no further conversation. T said that C said that she had been bullied into saying what she had said against the appellant by JB. That was a different account from the account that T had given in her statement and to the appellant’s wife. We permitted her to refresh her memory from her statement. The passage in the statement which she then adopted said that she had made it up to get back at her friend K, because they had “fell out”. We find this change in her evidence noteworthy. It is also noteworthy that J speaks of C saying that JB had bullied her and that T says this in evidence although not in her statement. That does suggest that this matter has been discussed with the consequential risks.
17.
In cross-examination she accepted that A and her boyfriend J had gone across first. It was put to her that the reason that C was upset and crying was because A was shouting at her and had told her to drop the charges and threatened to kill her. T denied this. She specifically denied that the words used by C were “he never raped me”. She emphatically denied that she was lying.
18.
T’s account does not fit with the account given by A, whom she accepted went over first with J and who, on A’s account, asked C “what’s up?”.
19.
We turn to the evidence of D, aged 17. He said that he heard C crying and turned around and saw C with T. He heard T say “what’s up?” to which C replied “he didn’t do it”. T then asked “who?” and C said “he didn’t touch me up or anything”. They all then went away. In cross-examination he said that no one was shouting at C. More than once D said that he did not believe that the appellant had sexually assaulted C, indeed he said that sometimes in answer to questions which did not invite that response. He did not hear the word “rape” used. According to his recently signed statement he saw T standing with C who was crying and T saying “who didn’t do what?” to which C replied “Dave didn’t do it to me”, a more minimalist account than the one given in evidence.
20.
Although Mr Rowlands, for the respondent, put it to some of the witnesses called on behalf of the appellant that they were lying, it is not necessary for us to reach a conclusion about that. There is ample scope here for confusion and misunderstanding. Mr Rowlands in his submissions made the following strong point, which we accept. The account given by the witnesses of C crying before anything was said to her just is incredible. The inference from the evidence given on behalf of the appellant is that about two weeks after giving evidence she is so distraught by what she has done that she is spontaneously crying. We do not accept that. We are quite satisfied that she was crying because of the behaviour of those who came and spoke to her. We are quite satisfied that things were said to her of a threatening nature and it is not surprising that she cried giving what was being said and the number of people around her. Given the strength of the views of those witnesses called on behalf of the appellant that C had given false evidence against the appellant and indeed had made up an allegation against someone else, we do not believe that this was a civilised conversation of the kind which the appellant’s witnesses describe.
21.
Mr Rowlands also asks rhetorically why would C suddenly admit that she had made up the allegation against the appellant? We accept C’s account that she was saying no more than that the appellant had not raped her. We have no doubt that this conversation started between A and C and that in that conversation as A and C confirm what was being denied by C was that the appellant had raped her. Thereafter, in all the confusion, it may well be that T and the others thought that she was denying any touching.
22.
We are quite satisfied that C did not admit that she had made a false allegation against the appellant. The evidence called on behalf of the appellant in this respect is not capable of belief and we dismiss the appeal. | ```yaml
citation: '[2005] EWCA Crim 828'
date: '2005-04-11'
judges:
- THE RIGHT HONOURABLE LORD JUSTICE HOOPER
- HIS HONOUR JUDGE ZUCKER 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:
[2011] EWCA Crim 2464
Case No:
1101787A3
&
1102214A3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WINCHESTER
Mrs Justice Nicola Davies
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
28/10/2011
Before :
LORD JUSTICE STANLEY BURNTON
MR JUSTICE SPENCER
and
THE HONORARY RECORDER OF MANCHESTER HIS HONOUR JUDGE GILBART QC
(sitting as a judge of the Criminal Division of the Court of Appeal)
- - - - - - - - - - - - - - - - - - - - -
Between :
AARON SCOTT BURDFIELD
and
SAMUEL JACOB D’CRUZE
Appellants
- and -
THE QUEEN
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Charles Bloomer
for
Aaron Scott
Burdfield
Katharine Spears
for
Samuel Jacob D’Cruze
Christopher Parker QC
and
Iain
Wicks
for the
Crown
Hearing date: 18 October 2011
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Stanley Burnton :
Introduction
1.
On 25 August 2010 at the Crown Court at Winchester Samuel D’Cruze pleaded guilty to a count charging conspiracy to supply Class A drug (cocaine). On 7 September 2010 Aaron Burdfield pleaded guilty to the same count.
2.
On 16 March 2011 they were sentenced by Mrs Justice Nicola Davies as follows:
(1)
Burdfield received a sentence of 4 years 3 months’ imprisonment, with a direction under
section 240
of the
Criminal Justice Act 2003
that 6 days spent on remand should count towards the sentence.
(2)
D’Cruze received a sentence of 4 years’ imprisonment, with a similar direction that 6 days spent on remand should count towards the sentence.
3.
They appeal against sentence with leave of the single judge.
4.
Co-defendants who had pleaded guilty to the same charge, other than James Vaughan, received sentences ranging from 2 years 4 months’ to 9 years’ imprisonment. Vaughan pleaded guilty to the same charge on re-arraignment and was sentenced to 16 years’ imprisonment.
The facts
5.
The facts to which we refer below are common ground as between the prosecution and the appellants, and were so before the judge. We treat them as common ground for the purposes of these appeals. James Vaughan has renewed his application for leave to appeal his sentence, and seeks to challenge many of these facts. Our account of the facts below is for the purposes of the present appeals, and will have no bearing on Vaughan’s application.
6.
The conspiracy to which the appellants pleaded guilty involved a multi-million pound organisation based in Brighton and Hove. It involved trafficking cocaine into West Sussex and Hampshire between 2006 and the early part of 2010. The operation was controlled by Vaughan. It came to light following a fire at a block of flats in Portsmouth on the night of 16/17 September 2007. One of the occupants of the flat was a man called Field, who was a man to whom the network had supplied drugs. However, the conspiracy continued for 28 months after that fire, until Vaughan was arrested on 4 February 2010. The police enquiries into Field’s activities led them to the conspiracy being run by Vaughan. The Crown’s case was that over the period of the conspiracy a minimum of 108.4 kilograms of cocaine were involved with a value of £10.8 million and a profit of £5.4 million.
7.
The extensive investigation led to other conspirators being identified and ultimately covert surveillance took place on Vaughan. Recorded conversations prior to his arrest revealed that Vaughan was going to extract money from Burdfield, one of his sub-dealers, by force if necessary. The police concerns as to the risk to a friend of Burdfield, who knew where Burdfield was hiding from Vaughan, and communicated implicitly to Burdfield, led them to arrest Vaughan.
8.
Vaughan set up the drugs network in 2005 and was dealing in quantities of a kilogram of cocaine at a time He sold those quantities for about £30,000. He began to use others to distribute the drugs and to collect the money owed. He took to cutting cocaine with lidocaine and benzocaine which he imported from China. He would often give his dealers more cocaine than they wanted and push credit onto them. If the debt was not paid promptly, he would increase it arbitrarily and often used aggressive debt enforcement measures to those who owed him money. Sometimes, his debtors were told that they could write off part of the debt if they carried out jobs for him. Sometimes, this assistance would be given voluntarily but at other times it was given because of threats of extreme violence. He used a variety of different names during the conspiracy, changing his name by deed poll each time and between June 2006 and February 2010 some £272,013 was paid into his bank accounts.
Burdfield
9.
As mentioned above, Aaron Burdfield was a sub-dealer who was supplied by Vaughan. The judge summarised Burdfield’s activities as following:
“On your behalf it was accepted that your involvement in the conspiracy was in the years 2008 and 2009 as identified by the prosecution, although it was said that your involvement was not the complete duration of those two years.
By the time you met James Vaughan in 2008 you were a heavy user of crack cocaine. You bought from him an ounce at a time for £750 with a view to selling three-quarter’s of an ounce and consuming the remainder ounce. Your habit overpowered you and you used all the drug rather than selling it on. You quickly fell into debt to your supplier, owing some £2,000 to £3,000. When you did not pay off that debt you received a visit from James Vaughan. This was the first occasion that you met.
In 2008 and 2009 James Vaughan permitted you to pay off your debt by running errands for him. You were not trusted to carry cocaine because you were too dependent on the drug but you collected and delivered cash on between 20 and 40 occasions. The sums involved range from between £2,000 to £70,000. You would also act as a driver and general dogsbody to James Vaughan.
Some of the help given by you was entirely voluntary. On occasions you were subject to the threats and intimidation …”
10.
The judge had mentioned those threats and intimidation earlier in her remarks:
“On one occasion James Vaughan told Aaron Burdfield that if he did not do as James Vaughan wanted his house would be burnt down with his mother inside. James Vaughan threatened to stab Aaron Burdfield, to cut him with a Stanley knife, to hurt his family and throw acid in his face. On another occasion he punched Aaron Burdfield in the face, broke his nose and threatened to rape his sister and burn her.”
She continued:
“By reason of those threats you did as you were told.
In the summer of 2009 you damaged a vehicle belonging to James Vaughan who arbitrarily increased your debt to £62,055. The result of Vaughan’s actions was that you fled to Scotland with the assistance of a friend. It is of note that the friend who assisted your move to Scotland himself became the subject of threats from James Vaughan and it was the police who intervened and arrested James Vaughan before he was able to carry out any of his threats to your friend.”
11.
Burdfield pleaded guilty on a written basis of plea, the contents of which were not challenged by the prosecution:
“1. l accept that the account given in my interview under caution represents a true account of the extent of my involvement in the drug-related matters giving rise to the indictment against me. I will plead guilty accordingly.
2. However, without repeating the content of that interview word for word, I wish to emphasize the following matters:
A. I was never more than a subordinate player in Vaughan c drug organisation.
B. I was, at the relevant time, a drug addict.
C. Any monetary profit I made from these activities was very limited.
D.A broad (not intended to be wholly exhaustive) summary of my involvement (without recanting a word of my interview) is as follows:
i: I drove Vaughan around for a period.
ii. 1 paid some money into his bank account.
iii. I was involved, as described in interview, in the matters relating to the fake ecstasy pills and Ibiza.
iv: I was well aware that cocaine was being brought in from Alicante in large amounts, and bashed up (mixed with cuffing agents).
v: I was also present at a transaction involving Vaughan in which a large amount of cocaine was divided up into 3 kg lots, and between various people.
vi: As detailed in interview, I, at Vaughan’s behest, claimed back from Sussex police money found at Sam D’Cruze’s house, which was in fact Vaughan drug money.”
12.
Burdfield had provided assistance that fell to be taken into account pursuant to
section 73
of the
Serious Organised Crime and Police Act 2005
. In addition to information, he had made a witness statement and was prepared to testify. The judge said:
“Before this court there is a Pre-Sentence Report and a letter written in pursuance of your status as a
section 73
SOCPA witness. On your behalf it was said that in an interview over a year ago you made full admissions not only of your role but that of others, in particular James Vaughan. It is said that you have provided this information at great risk to yourself and your family in a case where you have already been the subject of threats and violence from James Vaughan. It is clear from the
section 73
letter that you have provided considerable assistance. Had a trial taken place you would have given evidence for the Crown.
You are now aged 33. You have a significant history of offending. You have been before the courts on 13 previous occasions. It is right to record that some of the offences relate to driving, but there are many offences of obtaining property by deception, theft, handling stolen goods. In August 2003 for possession of Class A drug cocaine and possession of Class B drug cannabis, together with other offences involving dishonesty, you were subject to a drug treatment and testing order for two years. Since that time you have been before the court on three further occasions.
In the Pre-Sentence Report it is stated that during the past year you have turned your life around by stopping the taking of illicit substances, finding accommodation, securing employment and rebuilding family relationships. When your counsel addressed the court the point was made that this is the first proper employment you have undertaken since the age of 18.”
13.
In sentencing Burdfield, the judge said:
“It is clear from the
section 73
letter that you have provided considerable assistance, and, as I have already said, had a trial taken place you would have given evidence for the prosecution. To reflect your role within the organisation, both in terms of its length and activity, my starting point for your sentence is eight and a half years. I discount that to reflect the assistance which you have provided as identified in the
section 73
letter and your early plea of guilty.”
As mentioned above, the judge discounted the sentence to one of 4 years and 3 months, i.e., by one half.
D’Cruze
14.
Samuel D’Cruze had been a man of good character. He accepted that the prosecution’s account of his role was correct. He met James Vaughan when he was a car dealer and a legitimate arranger of finance in Brighton. In 2007, Vaughan, who knew about the poor state of D’Cruze’s business offered him the opportunity to deal in cocaine. D’Cruze agreed to sell small quantities and to return the profit to Vaughan. In 2008 D’Cruze became aware that an acquaintance of his was being threatened by James Vaughan for moneys. Because he believed he had a good relationship with Vaughan he asked him to back off his friend. This approach backfired: he was told by Vaughan that the debt was transferred to him. The quantities began to increase. There were increasing threats from James Vaughan D’Cruze genuinely feared harm for himself and his family from James Vaughan.
15.
On 24 October 2008 D’Cruze’s premises at 12 Garland Point in Shoreham were searched. The police found a shoebox containing £16,000 in cash, a notebook and a diary. Vaughan had left them with D’Cruze for safe-keeping. The notebook and the diary were handwritten deal lists, records of sub-dealers who owed money or to whom cocaine had been given. As a result of this seizure by the police, Vaughan was angry and threatened both D’Cruze and his family.
16.
In summary, D’Cruze’s role could properly be described as that of a subordinate. He was a low level retail dealer.
17.
Vaughan fled the country in November 2008 and asked D’Cruze to take over the running of the operation. It is said on behalf of D’Cruze that he turned his phone off and extricated himself from the organisation, and did nothing to further the enterprise during the time that Vaughan was out of the country. That was consistent with the prosecution account that when D’Cruze was left in charge during that time the organisation foundered. It was said on behalf of D’Cruze that since that time he had done all he could to distance himself from the organisation and criminal behaviour.
18.
On 2 July 2010 D’Cruze attended a preliminary hearing, and on 25
August 2010 entered a plea of guilty. It was on that day that he attended his first cleansing interview. At the time he entered his plea and attended the interview several of his co-defendants were contesting the charges against them. The plea resulted in a real and genuine risk to himself and his family.
19.
D’Cruze is now aged 37. In the Pre-Sentence Report his risk of re-offending was assessed as low. It was said on his behalf he was unlikely to be before the court again. Before the judge were testimonials from family and friends which spoke to his positive character and the business which he had been running. It was implicit in what was contained in these references that custody negatively impacted both upon his business and his family.
20.
In sentencing D’Cruze, the judge said that her starting point for his sentence was eight years. She said that she discounted that period to reflect his plea of guilty and all that she knew about him. As in the case of Burdfield, she discounted her starting point by one half, and as stated above the sentence she imposed was four years’ imprisonment.
The submissions of the appellants
21.
Although there are factual differences between the appellants, their submissions were substantially the same. They submitted:
(1)
That the judge’s starting points were too high.
(2)
That the judge failed to apply the 2-stage discount, for plea of guilty and for assistance pursuant to
section 73
, required by
the Act
and by the decision of this Court in
Blackburn
[2007] EWCA Crim 2290
.
(3)
The judge failed to reflect the discounts to which the appellants were entitled in the sentences she imposed.
Discussion
22.
We accept the appellants’ submissions.
23.
Given that D’Cruze was, as the judge accepted, essentially a low level retail dealer, and given the part played by fear and intimidation in his offending, in our judgment a lower starting point was appropriate than the 8 years identified by the judge.
24.
The part played by Burdfield was more serious, and was of greater duration, but in his case too we consider that the starting point identified by the judge was too high. He too was entitled to recognition of the part played by violence and intimidation in his offending, which led him to flee to Scotland. He was not of good character: his previous convictions were summarised by the judge in the passage from her sentencing remarks cited at paragraph 12 above.
25.
Furthermore, in the case of both of these appellants the judge failed to comply with the requirements of either sub
section (3
) or sub
section (4
) of
the 2005 Act
. She should have identified both the discounts to which the appellants were entitled. We shall do so in a separate judgment. As a matter of arithmetic, it does not matter in which order the discounts are applied, but they must be identified and separately applied. The terms of
section 73(3)
indicate that the discount apart from
section 73
should be identified first. It may be that this failure led her to amalgamate separate discounts, and thereby to reduce them beyond the amounts to which the appellants were entitled.
26.
In consequence of the matters to which we have referred, the sentences imposed by the judge on these appellants did not reflect all of the matters on which they were entitled to rely and were manifestly excessive. The sentences which we consider appropriate will be identified in a separate judgment that will be confidential to the prosecution and the appellants and those representing them, unless otherwise ordered by this Court. We shall quash the sentences imposed by the judge and substitute the sentences we consider appropriate as set out in our separate judgment. To the extent identified in that judgment, these appeals will be allowed.
27.
Finally, we express our appreciation for the clear and cogent submissions of counsel for the appellants and for the very considerable assistance of counsel for the Crown. | ```yaml
citation: '[2011] EWCA Crim 2464'
date: '2011-10-28'
judges:
- LORD JUSTICE STANLEY BURNTON
``` |
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:
201405007 C2
Neutral Citation Number:
[2015] EWCA Crim 558
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM the Central Criminal Court
HHJ Wide QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
16/07/2021
Before:
SIR BRIAN LEVESON PRESIDENT OF THE QUEEN'S BENCH DIVISION
MR JUSTICE CRANSTON
and
MR JUSTICE SINGH
- - - - - - - - - - - - - - - - - - - - -
Between:
R
Respondent
- and -
S
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Timothy Raggatt QC and Mr Salis appeared for the
Appellant
Mr Duncan Atkinson appeared for the
Respondent
Hearing dates 12/03/2015
- - - - - - - - - - - - - - - - - - - - -
Judgment
Mr Justice Cranston:
1.
This is a tragic case. On his 15
th
birthday, 22 March 2014, the applicant killed his girlfriend, Shereka, also 15 years old, by shooting her. At the Central Criminal Court September last, the jury acquitted him of murder but convicted him of gross negligence manslaughter (count 2 on the indictment) and possessing a firearm with intent to endanger life or to enable another person to do so (count 3). On the two counts the judge imposed concurrent, extended sentences of 14 years, comprising custodial terms of 9 years and extension periods of 5 years. The applicant had pleaded guilty to possession of a prohibited weapon and of ammunition but the judge imposed no separate penalty. The applicant renews his application for leave to appeal his conviction and sentence after refusal by the single judge.
2.
At the time of the shooting, the applicant was living with his father but, having previously lived with his mother, he still had access to her house. He met Shereka there that afternoon. She had a birthday present for him, which she had bought earlier in the Westfield Shopping Centre in Stratford. There was no evidence before the jury of any falling out between the two.
3.
Eight minutes after their final text message, he called 999 and asked for an ambulance. He was distressed. Some 45 minutes later, whilst still in the applicant’s old bedroom at his mother’s house, she was pronounced dead. She had been killed by a gun. The police who attended the mother’s home and spoke to him at the police station described him as distressed and saying that he wanted to see Shereka’s mother to apologise.
4.
The applicant told the police that he found the gun the previous day in Hackney Marsh, a Beretta 7.65mm self-loading pistol. The gun and the type of ammunition, which came with it, had previously been discharged a month earlier in an incident in Finsbury Park. He said he was showing the gun to Shereka, they were both holding it and it fired unexpectedly. A subsequent search of the bedroom found a stab vest hidden under a blanket on a shelf. At trial the applicant’s brother said that the bedroom was now his alone and it was his stab vest.
5.
Three days after Shereka’s death, when interviewed with his father and a solicitor, the applicant maintained that he found the gun and had removed the magazine to make it safe, but did not realise that there was a bullet in the chamber. He said it fired unexpectedly when they were both holding it.
6.
Later that day, he submitted a prepared statement stating that he had been given the gun to look after.
7.
The applicant subsequently varied his earlier account, acknowledging that he accidentally pulled the trigger while showing off with the gun. That was his evidence at trial.
8.
The pathologist stated that Shereka had been killed by a single bullet, which passed through her wrist and then entered her neck. She was holding her arm across her face when she was shot, with her palm to her face and the back of her hand facing outwards. The gun was discharged a very short distance away from her.
9.
The undisputed evidence of the prosecution’s firearms expert was that, if the slide, which carried the bullet from the magazine to the chamber, was forward, it was not possible to see if there was a bullet in the chamber unless one looked into a small hole and identified it as the brass ridge at the end of the cartridge. In order to fire the gun it was necessary to remove the safety catch, the slide had to be forward, the hammer had to be cocked and concerted pressure had to be applied to the trigger. The inference was that the weapon had been discharged deliberately.
10.
In essence, the prosecution case on count 2 was that it amounted to gross negligence to point the gun and pull the trigger, without having ensured that it was safe to do so. On count 3 the prosecution case was that the applicant’s intent to endanger life or to enable another to do so could be inferred, in particular since the gun was in working order and found with live ammunition.
11.
At trial the judge ruled that a stab vest found in the bedroom was relevant evidence in relation to count 3. Given its proximity in time and space to the gun and ammunition, it was ‘to do with the facts of the offence’ and did not therefore amount to evidence of bad character in accordance with section 98 of the Criminal Justice Act 2003. The judge further ruled that any potential prejudice by the admission of this evidence in relation to counts 1 and 2 could be cured by a clear direction to the jury.
12.
In his summing up the judge said that the vest was “completely irrelevant” to counts 1 and 2 and it was only potentially relevant to count 3, assuming that they accepted that he knew about it, “if you are sure that it went together with the pistol: one to shoot, one to protect”. Later in his summing up the judge referred to the applicant’s evidence that he did not know of the vest and his brother’s evidence that it was his.
13.
During the trial the judge refused submissions of no case to answer. With respect to count 2 the judge ruled it was plainly a question for the jury as to whether the applicant’s conduct fell so far below the standard of care required that it was grossly negligent, such that it constituted a crime. With respect to count 3 the judge ruled it was obvious a reasonable jury, properly directed, could conclude that the applicant had the requisite intent to endanger life, or to enable another to do so, by virtue of the nature of the gun and the fact that it was found with ammunition.
14.
In his summing up, the judge read and explained his analysis of the law in a “routes to verdict” document. After dealing with count 1, murder, he turned to count 2. His direction on that read:
“Are we sure that all the circumstances in which the pistol came to be fired were such that a reasonably prudent person of [the applicant’s] age and experience would have foreseen a serious risk of death to Shereka? If yes, go to question two, if no, verdict not guilty.”
There was an explanation that the word “circumstances” meant all of the circumstances as the jury found them to have been,
“… including what steps, if any, [the applicant] took to ensure that the pistol couldn’t be fired, any genuine and reasonable belief held by him as to whether the pistol could be fired, how the pistol came to be pointing at Shereka, and how the trigger came to be pulled.”
The judge emphasised the importance of each word, drawing attention as an example to the word “reasonable”.
15.
The routes to verdict document said that to convict the jury had to be sure that, having regard to that serious risk, the applicant’s conduct was in the circumstances grossly negligent, consequently a crime. If sure, verdict guilty, if not, verdict not guilty. They were referred back to the meaning of “circumstances”. The judge said that the words “grossly negligent” were there for a reason and it followed that mere negligence alone was not enough.
16.
In the course of summing up, the judge referred to the expert evidence about the gun. The judge reminded the jury of what the applicant said in interview about the gun firing accidentally and his not pulling the trigger. That was a lie, as was his story about finding it on Hackney Marsh. The judge also reminded the jury of his account of the person he would not name – because he said he was scared of the consequences for his family – who asked him to look after it. He did not know what the man did for a living or what he wanted the gun for, but agreed he was a dangerous person. As to the gun, the judge recalled that the applicant had said he did not know what the safety catch was, understand how it worked, and did not know that this gun had one. He certainly did not know there was a bullet in the chamber. The hammer might have been cocked but he did not do it. The gun fired accidently.
17.
Just before the jury retired, the judge recalled the defence case on count 2:
“[A]ny negligence must be gross, criminal negligence before he can be convicted. It is submitted that he took out the magazine before he showed the gun to Shereka, as he must have done, it is submitted, and which the expert, Fiona Richie [the expert], said is the first obvious step for someone wanting to make a gun safe. If he had taken the magazine out before he showed the gun to Shereka, what more could he have been expected to do? As an inexperienced 14 (sic) year old, he may well have had an honest and reasonable belief that the gun was harmless. His behaviour after that may have been crass, stupid, juvenile, even outlandish and arrogant, but that doesn’t make him guilty.”
18.
In retirement, the jury asked for a legal definition of gross negligence and an example. After discussion with counsel, the judge said:
“So in relation to the word “gross”, you must concentrate on whether or not the prosecution have made you sure that the defendant’s conduct, considering all the circumstances you have heard about and as you find them to be, fell so far below the standard to be expected of a reasonable 15 year old with his experience, that it was something that, in your assessment, was truly exceptionally bad and which showed such an indifference to an obviously serious risk to life, and a such a departure from the standard to be expected, as to amount, in your judgment, to a grossly negligent and therefore criminal act.”
Conviction
19.
Mr Raggatt QC’s key submission was that, in the unusual circumstances of the case, if the applicant was not guilty of murder he could not be guilty of gross negligence manslaughter. There was nothing that could give rise to an inference of foreseeability on his part. His evidence was to the effect that he removed the magazine from the handle to render the gun harmless: this account appeared to be supported by the rest of the evidence. In particular, the evidence of the firearms expert was that for the applicant to have been aware that there might have been a bullet in the chamber he had to look through a small hole at the top of the chamber. There was no evidence to show that he had done this or was even aware that the presence of a bullet could be detected in this way. There was also his age and the evidence about his ignorance of firearms. Thus, argued Mr Raggatt, there was no evidence from which it could safely be inferred that he either knew or believed there was a bullet in the chamber at the critical time. The directions should have been more careful in explaining to the jury how it was possible to reach a conclusion of gross negligence manslaughter in the absence of any knowledge or belief that the gun was loaded.
20.
In our judgment, the issue for the jury on count 2 was not based on a subjective test (what did the applicant know, believe or foresee) but rather an objective one: whether a reasonable and prudent person of the applicant’s age and experience would have foreseen a serious risk of death and, if so, whether the applicant’s conduct fell so far below the standard of care required that it was grossly negligent such that it constituted a crime. In answering that objective question, it was open to the jury to conclude on the evidence before it that the applicant’s conduct fell below the standard of care in pointing a gun and pulling the trigger when just a short distance away from Shereka. The judge distinguished ordinary negligence and said that whether this was gross negligence turned on the circumstances.
21.
Contrary to Mr Raggatt QC’s submission, we take the view that the judge did assist the jury by outlining relevant circumstances both initially and when the jury asked for further guidance after retirement. Among the circumstances he mentioned was the applicant’s state of belief as to the gun being loaded, which as a matter of law was one of the factors to be taken into account. It was made clear to the jury that they had to decide whether a reasonably prudent person, in the applicant’s position, would have taken all obvious and necessary steps to ensure that a gun, fitted with a magazine, and being left with him along with other loose bullets by the dangerous acquaintance, was not loaded before he pointed it at Shereka and pulled the trigger. In the summing up, the jury were reminded of the applicant’s evidence, including his knowledge of guns, and the evidence of the firearms expert. We reject this ground.
22.
Mr Raggatt QC invited us to deal with the other grounds on the papers. We can do that briefly. First is the contention that the direction on count 3 was inadequate, in that it is a crime of specific intent and the evidence was incapable of establishing the basis upon which an intention to endanger life could reasonably be inferred. Mr Raggatt QC readily conceded that this was not his strongest point, as indeed it was not. We have referred to what the judge said earlier. The fact is that the applicant possessed the gun together with ammunition. That was coupled with the evidence about how he came by it, in particular his evidence but lack of details about the dangerous acquaintance who asked him to mind it. There was also the stab vest. In our view that was sufficient to establish the inference in the eyes of the jury. We reject this ground.
23.
Along with the single judge, given what we have said about the prosecution evidence on grounds 2 and 3, we also reject the grounds challenging the rulings that there was no case to answer.
24.
Finally, we reject the submission that evidence of the stab vest should have been excluded because it was of limited probative value, but highly prejudicial. It was capable of being of probative value, as the judge explained. Given the way it was put to the jury, there is no basis for saying its admission was prejudicial.
Sentence
25.
The applicant had one previous court appearance dating back to 2012, when he pleaded guilty at the youth court to two offences of robbery. He was sentenced to a referral order of 6 months.
26.
The judge had a careful and detailed pre-sentence report. The report writer said that, although the applicant demonstrated a significant level of remorse, he remained unable to understand that it was his reckless actions that caused the deceased’s death, rather than bad luck. He minimised the risks associated with looking after the gun and showing it to the deceased. In addition, said the expert, his lies to police in the aftermath of the shooting demonstrated that other factors weighed more heavily than his remorse.
27.
The report contained a section entitled "Assessment of risk to community including dangerousness". Included there were these paragraphs:
“Access to weapons.
The applicant’s first offences in December 2012; the incident with knives that he was involved in, in March 2014 and the current offences suggest that in the community he had access to weapons, ranging from knives to guns. His association with pro-criminal peers further increased his chances of using and carrying weapons.”
Patterns of offending behaviour.
Taking into consideration the applicant’s use of a screwdriver to threaten the victims of the attempted robbery (December 2012); the presence of knives in the confrontation that he was involved with in March 2014; and the current offences, which involved the use of a gun and the possession of ammunition. I assess that a pattern of offending behaviour with regard to the use of weapons had emerged. Likewise, the applicant’s participation in violent fights at school, in the community and in custody suggests that a pattern of behaviour whereby he used violence to solve conflict had also emerged.”
28.
In relation to protective factors, the report stated that the applicant had a strong Christian faith and his close and extended family had remained supportive of him. The report continued:
“
Assessment of risk of harm to others.
… The applicant’s actions appear to have been intended (in those incidents) to cause some level of harm to his victims; and in some instances (school and custody) the violence appears to have been intentional. The applicant’s association with pro-criminal peers and appearing “seduced” by a criminal lifestyle are added factors that increase his risk of harm to others. Therefore, the applicant’s skewed views about violence, coupled with his recklessness and his access to weapons, and not least the fact that serious actual harm has already resulted from his actions; I therefore assess his risk of harm to others as high. Equally, should he return to the community to live under similar circumstances, continue to associate with pro-criminal peers and continue to consider violence as a legitimate way of dealing with conflict, the risk of him causing serious harm to others through the commission of further specified offences would also be high.”
29.
This part of the report concluded with the assessment that the current risk of offending was medium.
30.
There was also a psychological report and an addendum psychological report by Dr Halari. It stated that the applicant was not likely to experience difficulties in any area of cognitive functioning. With respect to the offences he faced, Dr Halari opined that the applicant did not appreciate the risks and dangers of hiding or handling the gun. In that regard, he demonstrated a significant level of immaturity such that he was unable to appreciate the dangerousness of showing the gun to Shereka. It seemed that it was the first time he had handled a gun and that he was unaware of how to do so.
31.
The judge also had the victim personal statements of Shereka’s mother and aunt.
32.
In passing sentence the judge said that, with respect to count 2, the applicant failed to check sufficiently that the gun was not loaded. He would be sentenced on the basis that he pointed the gun at the deceased, and pulled the trigger, in order to scare her, albeit temporarily. The judge accepted that following the shooting, he was genuinely distressed and remorseful. With respect to count 3, the judge said that he would sentence the applicant on the basis that he was looking after the gun, knowing of its potential to be used in violent gang confrontation. It was no coincidence, said the judge, that a stab vest was found in the same small bedroom that he previously shared with his brother.
33.
As to the applicant's age, the judge said that much had been made of his youth but during the trial he demonstrated
"a quite remarkable coolness and when you were cross-examined the ability to stand up to experienced QCs, showing a considerable presence of mind, able to understand a nuance of language and, as it were, to steer a way through difficult moments… No doubt you lack maturity – you are still only 15 – but in others you have demonstrated considerable presence of mind and demonstrated disturbingly adult life experiences."
34.
The judge then turned to dangerousness. The information before him gave him cause for concern. There were the two previous convictions for robbery, when he was young, one of which involved a bladed weapon, probably a screwdriver. More recently, there were photographs of him with imitation guns and knives, which demonstrated a worrying attitude to weapons. In addition, he had twice been excluded from school for violence and he had also been violent whilst on remand. There was a text message to Shereka, which revealed his involvement in a violent incident on 1 March 2014, in which he was armed with “a shank”, a knife.
35.
As to the psychologist's conclusion of a significant level of immaturity, such that he was unable to appreciate the dangerousness of the gun, the judge unhesitatingly rejected it: the psychologist had not heard all the evidence at trial, as he, the judge had.
36.
The judge then quoted the parts of the pre-sentence report, which we have quoted, as to the applicant's association with pro-criminal peers and identifying patterns of behaviour involving weapons and violence. In light of all of this the judge concluded that the applicant was a dangerous offender.
37.
We part company with the judge in his conclusion on dangerousness. Certainly the judge was entitled to make a global assessment, taking into account all the available evidence before him to evaluate the relevant risks. In this case, however, there was the difficulty of basing a conclusion of dangerousness on a verdict of gross negligence manslaughter. Moreover, although the pre-sentence report fully explored the risk factors associated with the applicant, some very concerning, it did not draw the conclusion that the applicant was dangerous. Whatever conclusion is drawn about his maturity, the fact is that the applicant had just turned 15 when he killed Shereka. In our respectful view the judge’s finding of dangerousness cannot be justified. That means he could not impose an extended sentence. In our view the appropriate sentence was a determinate custodial term of the length that the judge imposed, namely 9 years’ detention pursuant to the provisions of s. 91 of the Powers of Criminal Courts (Sentencing) Act 2000. We grant leave and allow the appeal to the extent of substituting this for the sentence the judge imposed. | ```yaml
citation: '[2015] EWCA Crim 558'
date: '2021-07-16'
judges:
- SIR BRIAN LEVESON PRESIDENT OF THE QUEEN'S BENCH DIVISION
- MR JUSTICE CRANSTON
- MR JUSTICE SINGH
``` |
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 470
Case No:
200407117/B3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEICESTER
HH Judge Stokes QC
T20027166
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
10/03/06
Before :
LORD JUSTICE THOMAS
MR JUSTICE McCOMBE
and
JUDGE STEWART QC
(Sitting as a Judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
Respondent
- and -
SEBASTIAN LEE RUSSELL
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Adrian Maxwell
(instructed by
CPS
) for the
Respondent
Stephen Coward QC
for the
Appellant
assigned by the Registrar of Criminal Appeals
Hearing date: 14 December 2005
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Thomas:
Introduction
1.
On 16 November 2004 in the Crown Court at Leicester before HH Judge Stokes and a jury the appellant was convicted and subsequently sentenced on 19 November 2004 for the following offences:
i)
Count 1: Handling Stolen Goods: 2 years imprisonment
ii)
Count 2: Attempted Murder: 20 years imprisonment; no verdict was returned on count 3 as it was an alternative to count 2.
iii)
Count 4: Making Use of a Firearm with Intent to Resist Arrest: 13 years imprisonment
These sentences were concurrent with each other
iv)
Count 5: Perverting the Course of Justice; 4 years imprisonment, consecutive to the terms above.
2.
He had been indicted with David Amartey on Count 1 and Cleo Duggan on Count 5. Amartey pleaded guilty to count 1 and was sentenced to 15 months imprisonment. Cleo Duggan was acquitted on count 5 by direction of the judge on the basis that there was no case to answer.
3.
During the course of the summing up, an incident almost unique in trials in England and Wales occurred; the appellant escaped from the dock and physically attacked the judge in circumstances we shall describe. For this, he was found to be in contempt of court and sentenced to a consecutive sentence of 18 months imprisonment by a different judge. We would observe that this was a merciful sentence, even in the context of the long sentences passed for the offences of which he was found guilty at the trial for attempted murder and other offences. Those who attack a judge, jury or other officer of the court in the course of their duties, particularly in the court room, can expect very long sentences measured in years; it is a further aggravating feature if the object of the attack is an attempt to frustrate the process of trial by judge and jury.
The nature of the appeal
4.
The appellant appeals against conviction by leave of the single judge.
i)
The trial concerned two separate incidents:
a)
an incident on 25 February 2002 when two men attempted to collect a stolen vehicle, were intercepted by the police and one of the men shot at one of the police officers. The issue in relation to that incident was whether it was the appellant who shot at the officer. This incident was encompassed within counts 1-4 of the indictment.
b)
An incident on 16 June 2003 when the appellant was shot, two days before the appellant was due to be tried in respect of the incident on 25 February 2002. It was the appellant’s case that he was shot by a notorious Yardie gangster, CD, because he was an informer. It was the prosecution case that this was a charade to provide evidence to bolster the defence of the appellant in respect of the incident on 22 February 2002 as set out in his defence case statement of 30 January 2003. This incident was count 5 in the indictment.
ii)
The appeal raised two issues:
a)
The fairness of the summing up and an issue of admissibility of evidence;
b)
The judge’s continuance of the trial after the appellant had escaped from the dock and physically attacked him; it is contended that, in the circumstances, a material irregularity had occurred.
5.
These two issues were said to be inter-related as it was urged on us by leading counsel for the appellant that the attack on the judge was in someway explained, though not of course excused, by the way in which the judge had summed up the evidence. May we say at the outset that it is accepted that the judge conducted the trial with complete fairness; we have concluded, for the reasons we set out below, that he admirably and fairly summed the case up for the jury. Nothing the judge said in the course of his summing up could begin to explain, let alone begin to excuse, the physical attack made on the judge and thereby on the process of trial by jury. We have also concluded that the only explanation for the attack on the judge was a deliberate attempt by the appellant to bring his trial to an end.
6.
It is necessary for us to set out the circumstances relating to the offences and to the trial in more detail.
The circumstances relating to counts 1-4: 25 February 2002
7.
On the 19 November 2001 a blue Audi S3 and electronic key was stolen from Nottingham. On morning of the 25 February 2002 the car was seen parked and unattended in Ash Street, Leicester with a false registration plate. Police kept the Audi under observation when at 12.5O p.m. two men got into the car. Officers manoeuvred their own vehicle to block the Audi and the two occupants got out and ran off. The two men were wearing navy blue hooded parka jackets which appeared to be identical.
8.
PC Hunt chased the driver. PS Rixon pursued the passenger into a nearby clothes factory and arrested him; he was identified as David Amartey; he had been wearing, but shed by this time a parka, a Donnay jacket and a pair of dark coloured soiled and wet socks; the items, including the socks, were recovered. As we have set out, Amartey pleaded guilty to handling stolen goods.
9.
PC Hunt gained on the driver who then took out a gun and fired it at the officer at a range of about 10-12 feet. PC Hunt retreated but was not injured; he joined in the chase of Amartey. A short time later three council gardeners sitting in a van stationery in the area noticed a man discarding items of clothing, including pulling a waterproof jacket over his head, although it was February and it was raining. One witness descried him as crouching down to move something at or on ground level. The items (a dark blue Donnay nylon waterproof jacket intertwined with a T shirt and a glove) were later recovered; the glove was found, on forensic examination 2½ years later to contain firearms residue; the T shirt had been found to have on it DNA matching that of the appellant. A sock or a pair of socks was found nearby which were heavily soiled or mouldy; these were pointed out by one of the gardeners (Mr Bullough), but ignored by PC Walkinshaw, one of the police officers, and never recovered. There was a CCTV image of a person agreed to be the appellant walking past the Humberstone Lodge Hotel which was in the vicinity.
10.
Another officer who attended the scene suggested the appellant as a possible suspect for the second man because he knew that Amartey spent a lot of time with him. The appellant was subsequently arrested and stood on an identification parade where he was picked out by PC Hunt and only one of the gardeners, Mrs Clarkson. The appellant was also originally charged with conspiracy to rob, but this charge was severed from the indictment on which he stood trial.
11.
It was the prosecution case that the appellant was the man who had got into the driver's seat of the stolen Audi (Count 1) and had subsequently shot at PC Hunt (Count 2) in order to avoid arrest (Count 4).
12.
The appellant’s defence set out in his first defence case statement (served on 30 January 2003) was that on that day the appellant and Armartey had met up with a notorious Yardie gangster with a reputation for murdering people known as CD (Cool Dreads) who said that he wanted an "insurance job" done on an Audi which was to be sold on to a gypsy. The appellant was told to wait for the gypsies while CD and Amartey went to collect the Audi. After a short while he heard sirens; CD had run towards him with a gun in his hand and told him to run. He had panicked and ran off; he had been wearing a blue top, a jumper and jacket; he had taken off the blue top in a panic and the T-shirt must have become caught up with it as it was taken off; CD had a similar blue jacket and he did not want to look like CD. CD had subsequently made threats of violence against him and warned him not to give information to the police.
The circumstances relating to 13 June 2003: Count 5
13.
On Friday 13 June 2003 (with the trial due to commence on Monday 16 June), the appellant was shot in the leg as he waited for his girlfriend, Cleo Duggan, in the car park of the Spar shop in Erdington Place, Leicester. He was taken to hospital but was released after he was found to have sustained a flesh wound with no injury caused to any artery or bone. The appellant gave a statement to the police in which he maintained that he had been shot by CD who had accused him of being an informer; he had been shot to prevent him from claiming at the trial that CD was the gunman.
14.
On investigation, this account was rejected and the appellant and Cleo Duggan were charged on 1 October 2003 with conspiracy to pervert the course of justice (subsequently count 5). It was the prosecution case that the shooting was a charade which had been carried out by the appellant and Cleo Duggan in an attempt to add credence to his defence that CD did exist, had a dangerous reputation and could have been the person who had shot at PC Hunt on the 25 February 2002.
15.
On 30 March 2004, the prosecution served a case summary with a request to the defence to consider whether they could agree any matters. It was the prosecution case that the appellant was a professional criminal and that CD was entirely fictitious.
16.
In July 2004, after the instruction of new counsel, a second defence case statement was served in which the appellant denied that he had been in the relevant area on 25 February 2002 and could not have been the man who had shot at PC Hunt or been seen discarding items of clothing by the gardeners. PC Hunt and Mrs Clarkson were mistaken in their identifications.
The trial
17.
This position was maintained by the appellant when the trial began on 18 October 2004. The prosecution relied on a number of witnesses, including, as relevant to the issues raised in this appeal,
i)
PC Hunt and the gardeners, particularly Janet Clarkson, as to identification of the appellant
ii)
Scenes of crime evidence from Mr Chauhan as to the way in which he recovered the parka, Donnay jacket, T shirt and glove worn by the gunman.
iii)
Forensic evidence from Mr Keeley, a firearms residue expert to the effect that firearms residue had been found on the glove and parka. The T-shirt and Donnay jacket had been sent to him as exhibit DCO3 together rolled up in a bag and when examined by him in August 2004 were each found to have a particle of residue on their outer aspect.
18.
Witnesses were cross-examined on the basis of the second defence case statement in which the appellant was denying his presence at the scene:
i)
PC Hunt was cross examined on the basis his identification was wrong as his description of the facial features and clothes did not match those of the appellant; and that he had seen on about 20 occasions a picture of the appellant before he made his identification, as that photograph appeared on each occasion on which he logged onto his computer
ii)
Janet Clarkson was cross examined on the basis that she had worked for a number of years close to his home address, regularly cycled passed the end of the road where he lived and shopped in the nearly High Street and had been mistaken in her identification.
19.
The prosecution also adduced evidence, whilst this line of defence was being maintained, that another Audi had been seized by the police on 31 January 2002. The evidence connected the appellant to this car which had in it 2 Donnay jackets identical to those recovered by the police after the incident on 25 February 2002.
20.
At the conclusion of the prosecution case, we were told there was a long consultation between the appellant and his lawyers; the appellant then gave evidence. In the account given by him in his oral evidence, he reverted, for the most part, to his original account in his first defence case statement that he had been waiting in the area when he had heard sirens and CD had run towards him with the gun. He admitted
i)
that he had previously lied when saying that the car was to be sold to gypsies and said that it was being collected to have its seats removed.
ii)
that he had been the person seen discarding clothing by Janet Gardener, and the other gardeners; she had, in fact, been right about her identification of him.
He said that he had lied in previous defence case statements and in his instructions to his lawyers out of fear for himself and his family following the threats by CD and his shooting in June.
21.
The evidence concluded on 9 November 2004. Speeches then followed and the judge commenced on Thursday 11 November 2004, with the judge hoping to finish it during the morning of the following day.
The appellant’s attack on the judge during the course of the summing up
22.
On the following day, Friday 12 November 2004, when the Judge was reminding the jury of the evidence of the scenes of crime officer and the findings of the firearms expert in respect of the residue found upon the appellant's clothing, at about 11 am, the appellant vaulted from the dock. He ran in front of the jury and upon reaching the bench attacked the Judge and tore off his sash. The Judge managed to hold the appellant by his right shoulder and was forced to keep him at arm's length for several seconds before the appellant was restrained by police officers and security staff and removed to the cells.
23.
During the course of the attack the appellant shouted out the following as partly picked up on the recording of the proceedings;
"I've got previous convictions [not for anything as serious as this], do you think you're going to stitch me up?
(inaudible
)... I'll stitch myself up, all right? I'm not guilty of this crime ...
(inaudible).
What's he doing? Look what I've been through. Everything I did was ...
(inaudible)
this man ...
(inaudible)
I'm not trying to escape. I'm an Englishman. I deserve a fair trial. I deserve a right trial."
24.
The judge retired to his room. Shortly afterwards, a Police Inspector and prosecution witness, PS Rixon, were brought in to see him in his room; the judge did not immediately recognise PS Rixon as he was dressed in security clothes, but he then recognised him when the Inspector identified him. Matters relating to the further provision of security for the remainder of the trial were discussed. The Judge made clear, during the course of his ruling on the application to discharge the jury, that in different circumstances, and if he had not been shocked at the time by what had taken place, he would probably have had the presence of mind to ask PS Rixon to leave the room.
25.
The jury were released from attendance until Monday 15 November. An application was made on behalf of the appellant that the jury be discharged; the judge dismissed the application. The judge continued with his summing up on Monday 15 November 2004; before resuming his summary of the evidence he directed them to try the case on the evidence which had closed on 9 November and to ignore what had happened on the previous Friday, 12 November 2004.
26.
The jury retired on the same day and returned their verdicts on 16 November 2004, as we have set out.
The criticism of the judge’s summing up
27.
We turn to the first issue in the appeal – the criticism of the summing up of the judge
28.
Counsel for the appellant submitted before us that the judge had acted as “leading counsel for the prosecution” in a skilful way. The judge’s conduct during the trial was described as follows by counsel for the appellant:
“the learned judge was a model, injecting occasional shafts of humour which were greatly appreciated by the jury”
It was submitted that by the time it came to summing up the case, the judge had the jury “eating out of his hands”; it was therefore even more important than usual that any views he had on the evidence were rigorously suppressed in the summing up. However, when the judge came to sum up the case and in particular the evidence, the judge had failed to meet the standards of fairness and balance to be expected of a judge; the summing up was selective, unfair and unbalanced. Even points not made by the prosecution were raised by the judge in his summing up. Eleven separate grounds of appeal were advanced in support of this submission. In oral argument, less emphasis was attached to some of these, but the very severe and serious criticism of the fairness of the judge was maintained.
29.
Our conclusion is clear. These points even viewed cumulatively do not begin to raise a question as to the fairness of the summing up. The severe and serious criticism of the judge is unfounded and without merit. Indeed it was, in fact, a careful, well prepared and entirely balanced and fair summing up, putting properly before the jury for their consideration the respective cases of the prosecution and the defence and summarising the evidence following the chronology of the events and reminding the jury of the respective cases on those events.
30.
Our reasons for this conclusion can be grouped by reference to the 11 grounds of appeal under 5 headings; we have added a sixth – the criticism of the way in which the judge dealt with the evidence in relation to the other Audi (to which we have briefly referred) as it was accepted that this evidence was admissible when the appellant was maintaining the defence in his second defence case statement; the criticism of the way in which the judge dealt with this issue can therefore only be a further criticism of the summing up.
(i)
The identification evidence given by PC Hunt
31.
As we have set out above, PC Hunt had only seen the gunman’s face for the short time when the gunman (who was wearing a hooded jacket) fired at him. Before he identified the appellant as the gunman, PC Hunt had seen a photograph of the appellant on about 20 occasions on his computer as he logged in, but his evidence was that this did not influence his identification. He had also been the subject of extensive cognitive interviews immediately after the events; these had been introduced into the evidence at the request of the defence.
32.
The first ground relied upon and grouped under this heading was the contention that the judge, when dealing with this evidence, was unfair as he took it upon himself to seek to bolster the evidence of PC Hunt by inviting the jury to consider whether he was a truthful witness, by misrepresenting the agreed
evidence as to verisimilitude of the photograph of the appellant on the computer and by failing adequately to draw to the attention of the jury to the particular dangers where an identifying witness had seen a photograph of the suspect prior to an identification parade. We reject this criticism.
i)
In his summing up, the judge very properly warned the jury to take care in assessing the evidence of identification by PC Hunt and reminded them on several occasions to take care in relation to his evidence. His directions in this respect clearly followed the guidelines laid down by this court and were entirely fair.
ii)
He told the jury to bear very carefully in mind the defence case that the fact that PC Hunt had seen the appellant’s picture on the computer on many occasions (as he logged in) may have influenced the identification made by the officer.
iii)
He told them to look for independent evidence that supported his identification and evidence that undermined it in the way laid down by this court.
iv)
It was therefore perfectly proper for the judge in a subsequent passage to remind the jury that the evidence in relation to the DNA on the clothing was, depending on the view they took, capable of supporting PC Hunt’s identification of the appellant as the gunman.
v)
He did not misrepresent the evidence in relation to the computer photograph. He properly left it to the jury to consider how good a photograph it was of the appellant in the context to which it was relevant – namely whether it had influenced the identification of the appellant made by PC Hunt.
33.
The second criticism related to what PC Hunt had said in his cognitive interview and evidence about the clothing worn by the gunman; this was to the effect that when the gunman had reached inside his coat he had seen something pale blue and underneath that something white or cream. It was submitted that this evidence was not consistent with the colour of the garments seen to have been discarded by the gunman. It was submitted that judge, in dealing with this evidence, had unfairly put forward an explanation helpful to the prosecution to the effect that PC Hunt may have seen the colour of a lower garment at collar level; he had accompanied his explanation by a physical demonstration involving him touching his wing collar. It was submitted that the entirety of the evidence was to the effect that the gunman's outer garment was open down to just below his chest, but fastened at neck level so only an oval of face was visible (not including the chin) and he could not have seen a pale blue or white or cream garment at collar level. The judge was therefore wrong to have made this point; it was also unfair and gave the defence no opportunity to comment. We reject this criticism.
i)
The judge correctly reminded the jury of the evidence of what PC Hunt said he saw as we have already set out.
ii)
His gesture in demonstrating the matter for the jury was intended to be helpful, as we think it was. However, even if, contrary to our view it was not, he had directed the jury that they were the judges of the facts and it did not matter what he, the judge, might think of the facts.
34.
The third ground of criticism was what was summarised as the selective approach of the judge to the running capabilities of the gunman and Amartey; this was, it was submitted, another example of his unfair approach. PS Rixon had described the gunman as not being a very fast runner, having a funny gait and not running athletically or being fit; he was a body builder rather than an athlete. PC Hunt’s evidence was to similar effect, but he had the impression that the man was reaching inside his clothes for something. There was evidence that the appellant had been a good sprinter at school, suffered from no injury and regularly trained at a gym on speed work as opposed to body building. The defence relied on this as showing the gunman was not the appellant; the prosecution contended that the person the officers saw was a person with several layers of clothing and this explained his slowness in running. The judge after referring to these respective contentions commented that whether the clothing may have slowed the gunman up or the fact that fumbling for something may have slowed him up was something for the jury to consider.
35.
It was submitted that it was unfair for the judge to have commented on the effect of several layers of clothing on the gunman's ability to rum quickly, but then to have failed to make any reference to the clothing worn by Amartey, the speed at which he was able to run and PS Rixon's inability (although himself a runner) to catch Amartey notwithstanding the fact that the evidence was that Amartey was bigger in build and less athletic than the appellant and was wearing the same clothing as the gunman. Again it is necessary to examine this in context:
i)
The summing up fairly pointed out the difficulties in the prosecution case arising from the fact that the appellant was athletic and fit and the prosecution answer to that, namely the layers of clothing and the fumbling to find the gun.
ii)
He fairly put the respective cases. The judge did not have to contrast this evidence with the position of Amartey, as there was no evidence in relation to his athletic ability or that of the police officer that chased him.
(ii)
The footwear the gunman was wearing and the sock(s)
36.
PC Hunt gave a detailed description of the footwear of the gunman, the essence of which was that it was black, something like a casual shoe with some white trim to the sole and white stitching on the shoe and the toe. As we have set out, a sock or pair of socks were found near the route where the gunman had been; the CCTV evidence at the Humberstone Lodge showed the person agreed to be the appellant as wearing white footwear. It was the prosecution case that the sock(s) found were those discarded by the appellant who had worn them over white trainers; they invited the jury to infer that as Amartey had been identically dressed to the appellant and dirty wet socks had been found at the factory where Amartey was arrested, the jury could infer that the appellant had been wearing socks over his trainers and discarded them; this explained why what PC Hunt had seen was essentially black footwear and why the CCTV had shown the appellant in white footwear.
37.
The way in which the investigation was conducted in relation to the sock or socks identified to the police officer in the vicinity of the clothing was plainly open to criticism; no sock or socks were recovered and the jury had to rely on the recollections of the witnesses.
38.
The first ground which we have grouped under this heading was that the judge sought to undermine what the defence contended was a major discrepancy in the identification evidence, namely the detail of PC Hunt's description of the gunman's shoes, by emphasising the short period of time PC Hunt had to observe the shoes, despite the graphic detail PC Hunt was able to give. Again this criticism is misconceived. It was a matter for the jury to consider whether what PC Hunt saw were black socks over trainers or simply trainers; it was for them to decide if there was the discrepancy contended for by the defence. It was right for the judge to emphasise the short period of time PC Hunt had to see the gunman and the consequence that this point might have an effect in undermining the alleged discrepancies in the identification or the strength of the identification.
39.
The second criticism made was that the judge wrongly directed the jury that
a pair
of socks was seen by the scenes of crime officer (Mr Chauhan) and by one of the gardeners (Mr Bullough) on the route the appellant took. It was submitted that the evidence was inconsistent as to whether
a
sock or
a pair
of socks were seen; the judge failed to remind the jury of the evidence of the scenes of crime officer, Mr Chauhan, that he saw only one sock. In addition the judge made no reference to the evidence of PC Walkinshaw that the sock or socks he saw were so ancient and mouldy that he considered they were unlikely to have any link to the events. Again we can detect no unfairness on the part of the judge and this criticism is unfounded.
i)
We accept that the judge generally referred in his summing up to
a pair
of socks, but he did remind the jury of the evidence of Mr Chauhan that he could not recall whether it was one or two socks. Whether it was a sock or a pair of socks was a matter entirely for the jury.
ii)
The fact that the socks had not been recovered and the criticism of the police in this respect (“the somewhat shambolic state of affairs”) was expressly pointed out; it was not necessary for the judge to remind the jury of the detail of the evidence of PC Walkinshaw which explained his decision. In any event, he had reminded the jury that if he left something out which they considered significant, they should take it into account.
40.
The third criticism was that the judge suggested that an interpretation of the evidence was that the socks recovered from the factory (attributed to Amartey) were similar to the socks not recovered, but observed by Mr Bullough and pointed out to PC Walkinshaw. It was submitted that there was in fact no evidence of similarity and that the judge had invited the jury to speculate that this added support to the proposition that PC Hunt was in fact mistaken in his description of the shoes and that the gunman had been wearing socks over shoes. This criticism is misconceived.
i)
It was an obvious inference open to the jury that Amartey had been wearing the socks that were wet and soil stained; the inference was that he had worn them over his trainers. There was evidence that the sock or socks seen near the route the gunman had taken were so mouldy and ancient to be ignored.
ii)
The judge in this part of his summing up was merely reminding the jury of the prosecution case that if the condition of Amartey’s socks enabled the inference to be drawn that they had been worn over his trainers, it was open to them to draw a similar inference in respect of the appellant. The judge quite properly told them that that was a matter for them.
41.
The fourth criticism was that the judge put forward a suggestion (said never to have been made by the prosecution) that the appellant returned to the scene later that day to recover the discarded socks. Again this criticism is misconceived.
i)
The judge was in fact referring to the question put by the prosecution to the appellant in cross examination.
ii)
The judge very properly reminded the jury of the case made on behalf of the appellant in answer to that suggestion. No criticism could properly be made of what the judge said.
(iii)
The CCTV evidence
42.
As we have set out, it was agreed that the person shown on the CCTV images at the Humberstone Lodge was the appellant. During cross-examination the prosecution put to the appellant that the CCTV film of the appellant showed him with a gun in his hand; no evidence was adduced by the prosecution to support that suggestion. It was submitted that the judge had agreed before the summing up that he would tell the Jury to disregard that suggestion, but he failed to do so in clear and unequivocal terms.
i)
The CCTV evidence showed the appellant walking past the Humberstone Lodge fiddling with both hands at his waist band; the prosecution suggested to him in cross examination that he was putting the gun away.
ii)
It was not accepted by the prosecution that the judge agreed to deal with the matter in any particular way; nothing was said to the judge at the conclusion of the summing up in respect of this.
We again cannot accept any criticism can be made of the judge in these circumstances; certainly there is nothing whatever to warrant this issue being used as an example of an unfair and unbalanced summing up.
(iv)
The gunshot residue
43.
It was submitted that the judge dealt with the evidence of a gunshot residue expert, Mr Keeley, in a partial and unbalanced manner; it was contended that he failed to remind the jury that by the time exhibit DC03 (the blue waterproof jacket rolled together with the T shirt) was examined Mr Keeley in August 2004 (as we have set out), it had been through a number of pairs of hands (probably 5) including a DNA scientist in December 2002, as evidenced by the exhibit label, before it reached him. Nor, it was submitted, were the jury reminded of Mr Keeley’s evidence that he could not be certain (because of the way the two items were collected and packaged) that any discharge residue on the T shirt did not originate from the jacket. Again this criticism is unfounded:
i)
The judge did remind the jury of the delay and the condition in which they had been sent to Mr Keeley; the defence accepted the integrity and continuity of the exhibits.
ii)
The judge did remind the jury of the evidence of Mr Keeley in relation to the question as to whether the residue had originated from the jacket and that it was a matter for them to consider.
(v) The gloss on the directions of law
44.
The first submission we have grouped under this heading was that the judge in directing the jury as to inferences to be drawn from silence in interview interpolated into the standard Judicial Studies Board direction his own comments which were only adverse to the appellant. We reject this criticism. The judge gave very clear directions on the law and on the nature of inferences. He reminded the jury very clearly of the appellant’s explanations for remaining silent; it is simply not correct to say that the judge added comments that were only adverse to the appellant. The passages read as a whole were entirely fair.
45.
The second submission is that when giving the “lies” direction (R v Lucas
[1981] QB 720
) the judge failed to identify each and every lie which it was alleged the appellant had made; he had devoted disproportionate time to a lie (the purpose of his presence at the scene on the day of the shooting) which was not relevant to the issues the jury had to decide. We reject this criticism. The judge again gave very clear directions on the law relating to lies which were rightly not criticised. The appellant had put forward different defence case statements and told numerous lies; the judge identified the principal lies; it is difficult to understand how it can have been unfair to the appellant not to have spelt out each of the other lies. The lies in relation to the day of the shooting were important and it was right for the judge to have dealt with their significance; it was not disproportionate. To recite each and every lie could only redound to the disadvantage of the appellant; the principle to be adopted by the jury was clearly and entirely adequately explained.
(vi)
The evidence in relation to the other Audi
46.
We turn to consider the grounds in relation to the connection with an earlier Audi; it became clear no criticsm could be maintained in relation to the admissibility of this evidence when the appellant was disputing his presence at the scene as he did after the second defence statement was served and during the whole of the prosecution evidence. The only criticism maintained was the way in which the judge dealt with that evidence after the appellant accepted in his evidence that he was present at the scene.
47.
As we have set out in paragraph 19 above, on 31 January 2002 the police discovered another stolen Audi S3 vehicle from outside an address linked to the appellant.
In
the car the following items were found:
i)
two Donnay jackets which were identical to the ones found on the 25 February 2002, although DNA found on the jackets did not match that of the appellant or David Amartey;
ii)
a jacket with a damp T-shirt in the pocket containing DNA which matched that of David Amartey and a pair of black, soiled socks which were similar to those allegedly worn by David Amarty over his trainers on the 25 February 2002;
iii)
A T-shirt in the boot containing DNA that matched that of the appellant;
iv)
Two CD's, a coke can and a hotel receipt from which the appellant's fingerprints were recovered.
48.
The prosecution sought to adduce the above evidence and submitted that it was an affront to common sense not to admit it because:
i)
the similarity of the Audi found in January to the Audi used by those involved in the events of 25 February 2002;
ii)
the items found were highly probative as when compared with the items discarded on the 25 February 2002 the similarity was highly suggestive that the same individuals were responsible for the items on both occasions.
49.
The appellant applied to exclude the evidence in relation to the Audi seized on 31 January 2002 on the grounds of (a) relevance, and (b) it would be highly prejudicial in that it might suggest to the jury that the appellant and Amartey were robbers/armed robbers, or worse. It was not probative of the main issue to be decided which was to establish who had fired the gun and what intent that person had. In the course of argument, the judge made the point to counsel for the prosecution that having ordered a separate trial for the charge against Amartey and the appellant of conspiracy to rob on the grounds that it might be prejudicial to Amartey, evidence in relation to this Audi could be prejudicial as it brought back into the case the question of the association between the appellant and Amartey.
50.
The Judge in his ruling stated that he was initially attracted to both defence submissions, but had concluded the evidence was relevant and the probative value outweighed its prejudicial effect. The evidence relating to the Audi seized in January was probative of the fact that those who could be shown to be connected in more than one way with that vehicle and with the items of relevance in that vehicle were the same people involved with the Audi used in the incident on the 25 February 2002. The evidence was therefore relevant to establishing the presence of the appellant at the incident on 25 February 2002. He had also concluded that, given the evidence, which was admissible in relation to the discarding of the clothing and items found on the 25 February, the admission of the evidence of the Audi seized on 31 January was unlikely to add to the obvious curiosity that the jury might have in regard to the activities of the men in question. It could be argued that in any event the evidence could suggest that the two men in question might be sophisticated criminals which was unavoidable given the nature of the case. The evidence from the January Audi did not materially add to that picture and could not be said to add in a material way to the prejudice which might be caused to the appellant's case.
51.
In the summing up the judge dealt with the evidence briefly and reminded the jury that the prosecution contended it was relevant and significant because of the items found in it; whether the points made were of significance were a matter for the jury.
52.
In the grounds of appeal, criticism was made of the ruling. That was not pursued in the oral argument, rightly, because the evidence was clearly relevant to proof of the appellant’s presence at the scene. In the oral argument, the criticism was directed to the way in which the judge dealt with the issue in summing up; it was contended that he should have directed the jury that, as the appellant had admitted his presence on 25 February 2002, the evidence in relation to the Audi seized on 31 January 2002 was no longer relevant to any issue open for decision and they should therefore have disregarded it. It was said that it was important to do this, given the risk of prejudice to the appellant as the jury might speculate that the appellant and Amartey were up to no good and not concentrate on the issue in the case as to whether it was the appellant who had fired the gun.
53.
We do not accept this submission. Although we accept that the primary purpose for which the evidence had been admitted was no longer relevant as the appellant had admitted his presence on 25 February 2002, his actions on the day were very much in issue; to those issues, the evidence, for the reasons advanced by the prosecution and referred to by the judge in his summing up remained relevant; the significance or weight to be attached to them, as the judge properly pointed out, was for the jury.
Conclusion in relation to the summing up
54.
We have, quite apart from these specific criticisms, considered the summing up as a whole; we consider that the directions of law were lucid and clear, the respective cases of the prosecution and defence properly laid before the jury and a clear summary of the evidence was given. No criticism could properly or fairly be directed at this summing up. It was accepted the conduct of the trial was fair; we have concluded that the way in which the judge summed the case up was fair.
55.
This ground of appeal fails for the reasons we have set out; we therefore turn to the second main ground of appeal.
The judge’s decision to continue with the trial after the attack on him
56.
It was submitted to the trial judge that he should discharge the jury and order a fresh trial before another judge, as justice would not be seen to be done because PS Rixon had entered the judge’s room shortly after the attack and because the jury would be unable to continue to try the case fairly in the light of what had happened. He was invited to ask the jury if they could continue to try the case fairly.
57.
The Judge dismissed the application to discharge the jury that same day, as we have stated; his reasons can be briefly summarised:
i)
He accepted that the jury would have found what happened a frightening and shocking experience.
ii)
It was not necessary for him to decide whether the actions of the appellant were, as the prosecution submitted, an example of the appellant trying to manipulate the proceedings.
iii)
There was an overriding principle that the entire system of criminal justice could not operate if, for whatever reason, a defendant was able to dictate to the Court that a trial should be aborted after committing a grave contempt of court and choosing to vault from the dock and attack a Judge. This principle was of equal standing with that which established that a defendant was entitled to a fair trial and should also be seen to have a fair trial. Otherwise any defendant who, rightly or wrongly, formed the view that things were not going his way could bring about a termination of the proceedings by his own deliberate behaviour.
iv)
He was perfectly satisfied that the appellant could continue to have a fair trial. It was unfortunate that PS Rixon had been in his room but there was no logical reason why his presence of just a few minutes, when discussing security matters, could have any bearing on whether the appellant could be seen to have a fair trial.
v)
Furthermore, although the jury might well have been affected in some way by the appellant’s conduct they would be directed to ignore what had happened, not to hold it against him and to try the case on the evidence alone. In the circumstances of the present case it was not appropriate to enquire of the jury what (if any) views they had about what had occurred or whether their judgement had-been affected; the position in
Brown
(to which he was referred and to which we refer below) was different. This jury had already been told twice that there would be no further evidence and they would be further directed to ignore the incident. The Judge emphasised that what had occurred in the courtroom was entirely as a result of the appellant's own decision to improperly vault from the dock, run through the courtroom and attack the presiding Judge. In such circumstances he could not see how he could order otherwise than that the trial should continue
.
58.
It was contended on the appellant’s behalf to this court, as we have set out, that although the appellant’s attack on the judge was inexcusable, it was explicable by reason of the unfairness of the summing up. In essence he was protesting that the summing up was depriving him of a fair trial and not seeking to abort the trial. In those circumstances the judge should have enquired of the jury whether in the light of the events in which they had undoubtedly been frightened, they felt they were unable to decide the case impartially.
59.
Particular reliance was placed on the appellant’s behalf on the decision of this court in
R v Brown (Robert Clifford)
[2001] EWCA Crim 2828
. Two jurors complained about remarks that had been made to them out the court during the luncheon adjournment by a person they presumed was the defendant’s brother and a friend. Statements were taken from the two jurors; the jurors were asked as a body if what had happened would adversely affect their view of he evidence and if anyone thought he might be, he was to indicate that. No juror answered affirmatively. The judge was asked to discharge the jury on the basis that although there was no actual bias, there remained, judging the issue form the standpoint of a fair minded observer, a danger of bias. He declined to do so on the basis, that although the responsibility of the defendant for what had happened had yet to be investigated, there was a prima facie case that that was so; the jury could reach an unbiased verdict.
60.
The court in
Brown
referred to the decision of the Court of Appeal in
R v Medicaments No 2
[2001] 1 WLR 700
where the effect of the European jurisprudence in relation to bias and the common law test laid down in
R v Gough
[1993] AC 646
in these circumstances was summarised in the following terms by Lord Phillips MR giving the judgment of the court:
“85 .... The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.
86 The material circumstances will include any explanation given by the judge under review as to his knowledge or appreciation of those circumstances. Where that explanation is accepted by the applicant for review it can be treated as accurate. Where it is not accepted, it becomes a further matter to be considered from the viewpoint of the fair-minded observer. The court does not have to rule whether the explanation should be accepted or rejected. Rather it has to decide whether or not the fair-minded observer would consider that there was a real danger of bias notwithstanding the explanation advanced. Thus in
R. v. Gough
, had the truth of the juror's explanation
[we interpose that this was that she had not appreciated that she lived next to the defendant's brother and alleged co-conspirator until after the jury delivered its verdict]
not been accepted by the defendant, the Court of Appeal would correctly have approached the question of bias on the premise that the fair-minded observer would not necessarily find the juror's explanation credible”.
61.
In
Brown,
the court made clear at paragraph 31:
“
We fully understand any judge's reluctance to discharge a jury in circumstances for which a defendant bore material responsibility, although there are no doubt gradations of responsibility, starting with deliberate misconduct by a defendant aimed at achieving a discharge in circumstances where a trial was going badly, or at achieving a favourable verdict, and ranging downwards in seriousness from those situations. Counsel for the appellant thus, rightly in our view, accepted before us that it cannot be open to a defendant to obtain the discharge of a jury by deliberately creating some ground of aggravation or discord between him and the jury, whether inside or outside court. But, in order for a judge to rely on the appellant's responsibility for events occurring as a ground for not discharging a jury, the circumstances giving rise to such responsibility must, it seems to us, either be agreed or ascertained by the judge to exist. They cannot be assumed, simply because there is a prima facie case which the defendant disputes.
”
62.
In the circumstances in
Brown,
this Court concluded that that there was no firm basis for treating the defendant in that case as responsible for the problems with the jury; the dispute was unresolved and the judge had made an error in proceeding as he did. A fair minded and objective observer
would therefore have had considerable doubt whether all the members of the jury would have been able so to compose themselves as to view the appellant and his defence in an appropriately dispassionate frame of mind
.
63.
In the present case, two grounds were relied on as necessitating the discharge of the jury. The first was the presence of PS Rixon in the judge’s room for a short while after the attack; the police sergeant had gone there with a more senior officer as an immediate reaction to the attack on the judge; given these circumstances and the fact that the judge was in the concluding stages of the summing up, it is fanciful to believe that any fair minded or dispassionate observer could have thought this had any affect on the fairness of the trial.
64.
The second ground was the judge’s refusal to enquire of the jury into the effect of the appellant’s actions on them. As we have set out above, the trial judge in this case concluded that the appellant’s actions had been entirely the result of his own choosing. That cannot be disputed; it was the defendant’s own decision to attack the judge as he was summing up. As we have said, however, it was submitted that the appellant considered he was not getting a fair trial and that his actions were therefore explicable; he was not trying to abort the trial, but merely protesting at what had happened. In those circumstances, there should have been an enquiry.
65.
In the present case, we cannot see how it could possibly be disputed that the appellant was responsible for what had happened. It was manifest from his actions. There was no need for an enquiry into his responsibility, as there was nothing to enquire into. Moreover, there could be no excuse for what he did; if the summing up had been unfair, the remedy lay in this court. No defendant can pre-empt that course by seeking to disrupt the trial.
66.
As we have already made clear, we reject the criticism made of the summing up; it was entirely fair. We are sure that the actions of the appellant were only explicable by his desire to abort the trial.
67.
It is self evident that no defendant can obtain from actions such as this the termination of his trial and a re-trial before a new tribunal. No fair minded observer would conclude that continuing with the trial was unfair or perceived to be unfair in such circumstnaces. There was therefore no enquiry to be made of the jury; they were bound to continue with the trial. They were properly directed to try the case on the evidence they had heard and pay no regard to the attempt to disrupt the trial.
68.
Indeed, as the judge correctly observed, if a defendant was able to stop a trial and obtain a new trial by acting in the way this appellant did, it would have the potential of making trial by jury in this country unworkable.
69.
This ground of appeal therefore also fails and is dismissed. We have also considered whether in all the circumstances the conviction is safe. We have no doubt but that it was. | ```yaml
citation: '[2006] EWCA Crim 470'
date: '2005-12-14'
judges:
- LORD JUSTICE THOMAS
- MR JUSTICE McCOMBE
``` |
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 502
Case No:
201203064 D2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 8th March 2013
B e f o r e
:
LORD JUSTICE LAWS
MR JUSTICE KEITH
HIS HONOUR JUDGE WIDE QC
(Sitting as a judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
KIM 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 7422 6138
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Miss O Davies
appeared on behalf of the
Appellant
Mr A D Harris
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE KEITH: On 3rd June 2011 at Leicester Crown Court, the appellant pleaded guilty to three counts of dishonestly making false statements with a view to obtaining benefit. She was sentenced to four months' imprisonment suspended for 12 months with unpaid work and programme requirements. An application for a confiscation order was made, and on 16th December 2011 Judge Rogers made a confiscation order against the appellant in the sum of £8,394.99, to be paid within six months, with four months' imprisonment in default of payment. She now appeals against the confiscation order with the leave of the single judge. All references in this judgment to sections of an Act are references to sections of the
Proceeds of Crime Act 2002
.
2.
The facts were these. On 20th February 2003 the appellant applied to Leicester City Council for housing benefit and council tax benefit. She said in the form that she had no savings or investments (count 1). She said the same thing in a later form dated 15th March 2004 (count 2), as well as on 20th May 2006 when she was visited by a Council official to verify her claims and she told the official that she had only two accounts (count 3). All those statements were untrue. She had several accounts over the years, together with significant savings. At the time of the first false statement, she had savings of £1,500. At the time of the second, she had savings of over £24,000. She had roughly the same amount of savings at the time of the third false statement.
3.
In the light of her savings, the appellant had not been entitled to any benefit at all. The total amount she had received came to a sum in excess of £23,000. In September 2010, she repaid £10,000, and she then repaid the equivalent of £40 a month from December 2010 to June 2011. She also repaid a sum in excess of £6,000, but that was, at least in part, attributable to payments which had been made to her which did not form part of the indictment. That resulted in an outstanding balance of £12,364.06. Since the benefits to which count 3 related came to just under that – £12,039.32 – the prosecution limited its application for a confiscation order to count 3 and to that amount.
4.
There was no dispute that the recoverable amount, and therefore the amount which the confiscation order should require the appellant to pay, was £12,039.32. To use the language of section 7(1), that was her “benefit from the conduct concerned”. It was then for the appellant to show that the amount available to her was less than that. If it was, then that amount became the recoverable amount: see section 7(2).
5.
The appellant's case was that by the time of the hearing of the application for the confiscation order, she had no available assets. She had spent all the money she had. Sums in excess of £16,000 had been used to repay the Council, and the balance had gone on her day-to-day living expenses, on paying off the sums due on her credit cards and on money which she had given to members of her family. The sums of money she had given to members of her family were to be treated as gifts because section 78(1) provides:
"If the defendant transfers property to another person for a consideration whose value is significantly less than the value of the property at the time of the transfer, he is to be treated as making a gift."
Those gifts came to £8,394.99, though it is not clear to us how that sum was calculated because the appellant was not able to particularise many of the gifts she claimed to have made.
6.
As it was, the judge found that she had no hidden assets, and he accepted her evidence that all her savings had gone, because he said in terms that he accepted her evidence “as to her own current situation”. He made no specific finding about the gifts she claimed to have made, but since he did not say that he was rejecting her evidence on the topic, he must be presumed to have proceeded on the assumption that what she had said about giving members of her family money had been correct.
7.
Section 9(1) is the governing provision when it comes to determining the amount which is available to a defendant for the purposes of deciding what the recoverable amount should be. It 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."
In the context of the present case, any gifts made by the appellant after 20th May 2006 were tainted gifts: see section 77(5)(a). It was not disputed by the appellant's solicitor that the gifts which the appellant had admitted making were tainted gifts. However, it was argued that there was no prospect of the appellant being able to recover the sums she had given, and since she therefore had no prospect of being able to meet any confiscation order in the sum of £8,394.99, she would inevitably be in default of such a confiscation order. It was argued that in those circumstances the gifts should be treated as having been of no value, and that therefore a confiscation order only in a nominal amount should be made. The judge disagreed.
8.
This appeal therefore addresses the circumstances when a tainted gift within the meaning of section 9(1)(b) should be regarded as having no value. The question of how you value “free property” within the meaning of section 9(1)(a) was considered in
Najafpour
[2010] 2 Cr App R (S) 38
. In that case, the offender had been convicted of money-laundering. It was common ground that he had benefited from his general criminal conduct in the sum of £10m, but that sum dwarfed his available assets, and the court therefore had to determine what his available assets were. One of his assets was a sum in excess of £40,000 which he was owed by an Iranian living in Iran, and which the judge found to be “money which on any likelihood he is not going to get”. One of the arguments advanced on his behalf was that the court should not have treated this sum as an available asset as it could not in practice be recovered. The Court of Appeal rejected that argument, but it held at the same time that although it was an available asset, it should be treated as being an asset of no value.
9.
The court reached that conclusion after considering what Lord Bingham had said in
May
[2008] 1 AC 1028
at [35]:
"From the 1986 Act onwards, the courts have been required to reinforce confiscation orders by the imposition of a term of imprisonment to be served in default of payment. But it has been recognised that a defendant may lack the means to pay a sum equal to the aggregate of the payments or rewards he has received, or the value of the property or pecuniary advantages he has obtained. It has also been recognised that it would be unjust to imprison a defendant for failure to pay a sum which he cannot pay. Thus provision has been made for assessing the means available to a defendant and, if that yields a figure smaller than that of his aggregate benefit, making a confiscation order in the former, not the latter, sum."
10.
In the light of that, Elias LJ in giving the judgment of the court in
Najafpour
said at [33]-[34]:
"33. If it is impossible to recover the debt then it would be quite inconsistent with the structure of
the Act
as explained by the judgment of Lord Bingham in
May
to trigger the default sentence. A defendant is not to be imprisoned if he satisfies the court that he simply does not have the assets available: see the decision of this court in
Chen
(4th December 2009) [
[2009] EWCA Crim 2669
]. So if an asset is in fact of no financial value, it must be assessed as such.
34. We anticipate that this situation will arise but rarely. In many and perhaps most cases a court may well at the point of determining the Confiscation Order be sceptical about assertions by a defendant that monies due are irrecoverable. The court may quite properly wish to have evidence from the defendant of the steps he has taken to recover the sums before he is able to satisfy the court that the debt is in practice worthless. In those circumstances the court will make a confiscation order and the amount will include the value of the debt, and the defendant will have to seek a certificate of inadequacy at a later date. But where, as here, the judge is fully satisfied when making the order that the debt will not be recovered, he should assess the value of the asset at nil."
11.
Najafpour
therefore deals with how you value the defendant's “free property” within the meaning of section 9(1)(a). It does not deal with how you value “tainted gifts” within the meaning of section 9(1)(b). We shall come shortly to whether a tainted gift which cannot be recovered by the defendant has no value, but it is important to note that in this case the judge did not find that the money which the appellant had given to members of her family could not be recovered. The judge noted that the appellant had not made “any real attempt to recover” the money. That was in part due to what the judge described as “a personal choice in the difficult family circumstances”, but he said that it “may also [have been] a realisation that it would be a fruitless exercise on her part”. He was not finding that attempts to recover the money would be futile. He was just saying that that may have been what the appellant thought. It is true that he went on to find that “her family members are very limited in terms of their own personal resources and would not be able easily to pay money to her or to return goods”, and that “such goods as there were in any event are likely now to be old and used and of very little tangible value”. That amounts to a finding that what members of her family bought with the money she gave them may not be worth that much, and that it would not be easy for them to raise the money to repay her. But there was no finding that the money could not be recovered if the appellant put her mind to it, or if, to use the words of the judge, she had made “rather greater efforts than the present”.
12.
Having said all that, though, we recognise that the judge said in terms that there was no need for him to decide whether the money could be recovered. What he said was:
"So an application of the statutory provisions seems to me to lead to this inevitable result: that once items are included within the definition of 'tainted gifts' there is no need for an investigation to be made as to whether in fact there is any prospect of the items being returned or their value being recovered."
His reading of the statutory provisions was unaffected by what was said in
Najafpour
, if only because
Najafpour
was not dealing with tainted gifts under section 9(1)(b), but with one of the defendant's assets to which section 9(1)(a) related, and whether the value of an asset of that kind was affected by its lack of recoverability.
13.
We agree with the judge for two reasons. First, there is a specific statutory regime governing the valuation of tainted gifts. It is in section 81, which is headed "Value of tainted gifts". There is nothing in section 81 which links the value of the gift to its recoverability, even though it contemplates the situation where the recipient of the gift has parted with it. There is no equivalent provision relating to the valuation of “free property”, and the basic rule in section 79 about valuing property focuses only on the market value of the property. It does not address the value of the debt owed to the defendant which it may be difficult or impossible for the defendant to recover. It was therefore open to the court in
Najafpour
to decide for itself whether the recoverability of such a debt was relevant to the valuation of “free property” of that kind.
14.
Secondly, the whole point of including assets which a defendant has given away as one of the components in assessing the amount which a defendant has available was to prevent a defendant dissipating his assets by giving them away. If he is to be able to say that they are of no value because he cannot get them back, that would defeat what the inclusion of tainted gifts in section 9(1) was seeking to achieve. Since you cannot sue the recipient of a gift for its return, there may be many occasions when gifts cannot be recovered. It cannot have been intended for those gifts which the recipient is prevailed upon to return to be included as part of the offender's available assets, but not those which the recipient cannot be persuaded to give up.
15.
For these reasons, this appeal must be dismissed. | ```yaml
citation: '[2013] EWCA Crim 502'
date: '2013-03-08'
judges:
- LORD JUSTICE LAWS
- MR JUSTICE KEITH
- HIS HONOUR JUDGE WIDE 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 2101
Case No:
200906264 D4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Thursday, 2 September 2010
B e f o r e
:
LORD JUSTICE RICHARDS
MR JUSTICE COLLINS
MR JUSTICE COULSON
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
KEITH MILES
- - - - - - - - - - - - - - - - - - - - -
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)
- - - - - - - - - - - - - - - - - - - - -
MISS L MATTHEWS
appeared on behalf of the
Appellant
MR C QUINLAN
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE RICHARDS:
On 10 November 2009, at Bristol Crown Court, the appellant was convicted on 14 counts of indecent assault, one of attempted rape and two of rape. On 8 February 2010 he was sentenced by the trial judge, HHJ Horton, to a total of 19 years' imprisonment. He now appeals with the leave of the single judge against conviction on count 9, a count of rape. Other grounds of appeal against conviction have not been renewed, following a refusal of leave by the single judge. There is also an application for leave to appeal against sentence in respect of certain counts of indecent assault, an application which has been referred to the court by the Registrar.
2.
The offences of which the appellant was convicted go back a long way, to between 1967 and 1986. He had three children by his first marriage; JP, DP and TP. Following a divorce in 1972 he married Cathy (nee EP), by whom he had a further three surviving children; CM, ST and JM. In addition, Cathy had three nieces; JM, LD, and VR. The principal case against the appellant was that he had systematically and repeatedly sexually abused JP, JM, LD, VR, CM and ST over a number of years during their childhood. The counts concerning VR were withdrawn from the jury but the appellant was convicted on the other counts.
3.
In addition, he was charged with the rape of Cathy's mother, EP, at a date between 1973 and 1982. That was the subject of count 9. The nature of the allegation was that he had taken her to see Cathy in hospital after the birth of one of Cathy's babies and he had raped her in the car on the way back.
4.
The various matters came to the attention of the police only in 2008. They postdated the time in January 2008 when the appellant re-married, sold the family house and changed his will in favour of his new wife, so that his children would receive only what was left on her death. He alleged that there was a conspiracy of lies against him as a result of his re-marriage and the change in his will, and that the allegations by EP on count 9 formed part of that conspiracy.
5.
The principal evidence on count 9 was in the form of a video taped police interview of EP herself. The interview took place on 23 January 2008. EP was 84 years old at the time. She died soon afterwards, on 18 March 2008, long before the trial which started in October 2009. Her interview was admitted in evidence at the trial pursuant to the hearsay provisions of the
Criminal Justice Act 2003
.
6.
In the interview EP said that she used to suffer from agoraphobia, as the appellant must have known, and she would not go out very much. When Cathy had had a baby she wanted to go and see Cathy in hospital but did not want to go alone. The appellant said he would take her. On the way back he took a different route from normal and told her that she could either have sexual intercourse with him or walk home. It was dark, she did not know her way back home, and she was terrified of having to walk home alone. Accordingly, she let him have intercourse with her in the car. She told him she thought it was disgusting. He did not use a condom and he ejaculated inside her. Afterwards he dropped her off at home. She said she had not told anybody about the rape at the time because she thought they would not believe her and she did not want to upset Cathy. The allegations emerged after Cathy's death in 2006.
7.
The judge gave a detailed and careful ruling on the admissibility of the video interview. He dealt with the various defence submissions concerning the unreliability of the evidence, to which we will return. He considered the statutory conditions in
section 116 of the Criminal Justice Act 2003
and the general question of fairness under
section 78 of the Police and Criminal Evidence Act 1984
, drawing for this purpose on the factors listed in
section 114
of
the 2003 Act
. As to the importance of the evidence in question he said that without the evidence there was nothing to sustain count 9 and, looking beyond count 9, that the witness also gave important evidence to support the contemporaneous and consistent complaint from JM when JM had been 7 or 8 years of age. The judge considered that the circumstances in which the statement was made told in favour of its admission, because this was a video interview which enabled the jury to assess the demeanour and quality of the witness and better able to understand the points that could be made in relation to her unreliability. The witness could not be cross-examined and her account could, therefore, not be tested in that sense, but it could be measured against any evidence given by the appellant himself or by others in relation to the reliability and character of the witness, together with the comments of counsel and the warnings that would be given in summing up, and any matters that might be considered under
section 124
of
the 2003 Act
to protect the appellant's position and enhance the quality of any evidence he could present against EP's evidence.
8.
The judge then turned to the principles to be found, at that time, in the judgment of the Court of Appeal in
R v Horncastle and others
[2009] EWCA Crim 964
, subsequently endorsed by the Supreme Court (see
[2010] 1 Crim App R 17
). It was held in that case that the provisions of
the 2003 Act
concerning the admission of hearsay evidence are consistent with the requirements of a fair trial or, as Lord Phillips put it at paragraph 108 of the judgment of the Supreme Court, they “strike the right balance between the imperative that a trial must be fair and the interests of victims in particular and society in general that a criminal should be immune from conviction where a witness, who has given critical evidence in a statement which can be shown to be reliable, dies or cannot be called to give evidence for some other reason."
The judge concluded that the conditions in
section 116
of
the 2003 Act
were met and that it would be fair and in the interests of justice to admit the evidence.
9.
Both counsel have provided this court with full and extremely helpful skeleton arguments. Miss Matthews, appearing on behalf of the appellant, has been very concise in her oral submissions. It was entirely appropriate to adopt that course because there was nothing that could usefully be added to the very clear written submissions that she has made and to which this court has given careful consideration. We have not found it necessary, in the circumstances, to hear oral submissions from Mr Quinlan on behalf of the Crown.
10.
The case advanced by Miss Matthews on the appellant's behalf is that the judge was wrong to reach the decision he did to allow the interview to be admitted into evidence. A number of points are made, going largely to the reliability of what EP said in that interview.
11.
It is said that she would have been around 50 years of age at the time when her daughter Cathy's children were born and she was allegedly raped in the car on the way back from hospital. Yet towards the end of her interview she gave some rather confused answers to the effect that the rape occurred after her husband had left her and that this was when she was aged between 70 and 76. Moreover, towards the start of the interview, when asked when Cathy was married, she said she did not remember all the dates and "My mind has gone haywire. I have been ill quite a lot you know and I can't even remember what yesterday was sometimes". At the very of the interview, after the questioning about her age and the date of the rape, she said "I do get confused a lot".
12.
The point is also made that her medical records, which were available for the trial, made no reference at the material time to agoraphobia, although there was a later comment about it. Further, in 1977, during the period embraced by the count relating to the alleged rape, she was convicted of shoplifting and, at that time, had over 200 other cases taken into consideration. It is suggested that such conduct, shoplifting, is wholly inconsistent with the alleged agoraphobia. There had also been an earlier conviction in 1965 for shoplifting. Miss Matthews makes the valid point that this would have been an obvious area for cross-examination had EP been alive and able to appear as a witness at the trial.
13.
It is submitted, by reference to those various matters, that she would in fact have been a most unreliable witness and that it was not possible properly to test or assess her evidence, a point which gains greater force from the fact that we are dealing here with an incident alleged to have occurred some 30 years or more previously.
14.
For those reasons, it is submitted that the interview should not have been admitted and that its admission into evidence rendered the conviction on count 9 unsafe.
15.
The rival submissions of Mr Quinlan, as they appear from his skeleton argument, are to the effect that all the matters in question were properly considered by the judge. Mr Quinlan points out that the indictment was amended at trial so that count 9 covered the window of 1973 to 1982, during which Cathy gave birth to her various children. He submits that that period is consistent with the detail of the allegations made by EP in her interview and with the evidence which supported it. It was inconsistent with her assertion late in the interview that she was raped after her husband had left her, but that inconsistency did not itself render her account unreliable. It was a matter before the jury and for the jury to evaluate in deciding whether to accept her account.
16.
As to the passages in which the witness suggested she was confused, these did not go to the central issue of whether the alleged rape happened and, again, those passages were before the jury for them to assess. As the judge observed in his ruling, apart from the replies and errors in respect of dates, no other aspect of her behaviour depicted on the video was relied on in support of the contention of unreliability. Nor was there any medical or other evidence that she was unfit or not competent to give evidence or that she was otherwise unreliable.
17.
The submission is made that her evidence was capable of being tested and was tested. The inconsistencies were there to be assessed; evidence was led of her conviction for shoplifting; the appellant himself gave evidence denying the rape; all these matters were there for the jury to assess. Further, the appropriate safeguards were observed and no complaint is made about the way that the judge ultimately directed the jury on this issue. He drew the jury's attention to the various matters that put the defence at a disadvantage and to the points that could be made on behalf of the defence.
18.
In addition, our attention is drawn to the fact that EP's account had some other evidence to support it. The appellant's own evidence supported it as to opportunity and timing: he said in evidence that he drove her to hospital though he denied having done so on his own. There was evidence from a police officer confirming that the details given by EP about the location of the rape were consistent with the position on the ground. Her assertion about agoraphobia was supported by the evidence of her granddaughter, JM, who also gave evidence that EP had made a complaint or disclosure of the incident to her when she, JM, was about 16 years of age, which was in 1983. The jury were entitled to take this into account when considering reliability.
19.
There is a further submission that although EP was the only adult complainant, the other evidence of sexual impropriety, if accepted by the jury, was capable of supporting her allegation, another matter in respect of which the jury were correctly directed by the judge.
20.
We have given careful consideration to the arguments advanced on both sides. It is clear to us that the judge did the same in reaching his decision to admit the evidence. It was, as we have said, a fully reasoned decision and, in our judgment, it was a properly balanced and sustainable decision.
21.
There is no reason to dismiss EP summarily as an unreliable witness. The extent to which her reliability was affected by her own evident confusion about her age at the time of the alleged incident, and her other comments about forgetfulness and confusion, was capable of being assessed by the jury. There were also other ways in which her account could be tested and her reliability assessed, as counsel for the prosecution has submitted. As counsel has also submitted, there was some separate support for her evidence, albeit that evidence stood as the central plank of the case on count 9.
22.
It is of course true she could not be tested by cross-examination and that this was a serious limitation, but it was one that the judge took fully into account in reaching his decision and in relation to which, when it came to his summing up, he gave a full and proper direction to the jury.
23.
Looking at the matter overall, we are satisfied that the judge was entitled to admit EP's interview into evidence and that its admission did not render the appellant's trial unfair or the conviction on count 9 unsafe. The appeal against conviction is therefore dismissed.
24.
The sentence appeal requires an extension of time and leave to appeal, both of which we grant. The appeal relates to counts 10 to 14, the offences against LD. It reflects a point noted by the Registrar and drawn to the attention of counsel.
25.
The offences in question were contrary to
section 14 of the Sexual Offences Act 1956
and were committed before 16 September 1985, so that the maximum sentence for the offences was 2 years' imprisonment unless the victim was under the age of 13 at the time and her age was stated in the indictment. LD's age at the time was not stated in the indictment - a deliberate decision, because of the nature of her evidence as it appeared on the face of the papers. Accordingly, the maximum sentence on each of counts 10 to 14 was 2 years' imprisonment. Regrettably, this was not drawn to the attention of the sentencing judge who in consequence, by an oversight, imposed sentences of 4 years on each of those counts, concurrent with one another but consecutive to the sentences on the other counts.
26.
Mr Quinlan for the Crown accepts that an error was made, though it should be stressed that it was not an error for which he was responsible, since he had identified the correct maximum sentence at the time and had, he tells us, included it in a note for counsel who attended the sentencing hearing when Mr Quinlan himself was unable to attend it. Nonetheless, he rightly apologises on behalf of the Crown that the matter was then overlooked at the hearing.
27.
In the circumstances, we will allow the appeal against sentence by quashing the sentences of 4 years' imprisonment on each of counts 10 to 14 and substituting sentences of 2 years' imprisonment in each case, those sentences to remain concurrent with one another but consecutive to the sentences on the other counts. The result is that the total sentence to be served by the appellant is reduced from 19 years' to 17 years' imprisonment.
28.
Thank you very much. The standard reporting restrictions in respect of the victims apply, I do not think that anything further needs to be said; no specific further order is needed.
29.
MR QUINLAN:
No. Thank you, my Lord. | ```yaml
citation: '[2010] EWCA Crim 2101'
date: '2010-09-02'
judges:
- LORD JUSTICE RICHARDS
- MR JUSTICE COLLINS
- MR JUSTICE COULSON
``` |
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 1261
Case No:
2008/06941 A7
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
MR JUSTICE RODERICK EVANS
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
25/06/2009
Before :
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE COLLINS
and
MR JUSTICE OWEN
- - - - - - - - - - - - - - - - - - - - -
Between :
R
- v -
Daniel James
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr C. Nicholls QC for the Appellant
Miss S. Whitehouse for the Prosecution
Hearing dates : 11
th
June 2009
- - - - - - - - - - - - - - - - - - - - -
Judgment
The Lord Chief Justice of England and Wales:
1.
Daniel James is 46 years old. He was born in Iran, and came to the United Kingdom as a teenager. In 1986 he became a British citizen, and so he held both British and Iranian nationality. In 1987 he joined Territorial Army and signed the Official Secrets Act. In March 2006 he was sent to serve in Afghanistan as an interpreter with the British forces attached to the International Security Assistance Force (ISAF). From May 2006 he acted as an interpreter for General Richards, the Commanding Officer of ISAF who was based in Kabul. His role was to act as interpreter at meetings and to translate documents and speeches. He did not have direct access to the most sensitive of General Richards’ work but he was in a unique position to overhear operational and strategic information.
2.
To begin with his conduct was satisfactory, but before long there was a decline in the standards of discipline. He was dissatisfied with his rank of corporal, and felt that he should have been promoted. That was the background to the offence of which he was convicted on 5
th
November 2008 in the Central Criminal Court before Roderick Evans J, that on 2
nd
November 2006, for a purpose prejudicial to the safety or interests of the State, he communicated to another person information that was calculated to be or might or was intended to be directly or indirectly useful to an enemy. On 28 November he was sentenced to 10 years’ imprisonment, and an appropriate order was made under
section 240
of the
Criminal Justice Act 2003
.
3.
The jury failed to reach verdicts on two further courts in the indictment, collecting documents useful to an enemy, and wilful misconduct in a public office. The prosecution did not seek a re-trial on those counts. They were ordered to remain on the file on the usual terms. As Roderick Evans J observed, and we endorse, the sentence to be imposed on the appellant was required properly to reflect the true criminality and culpability of the single offence of which he was convicted.
4.
The crucial feature of this particular conviction is that the appellant was trusted to work in a highly sensitive environment, while serving abroad in the context of an active and continuing armed conflict which involved this country, the men and women who serve in its armed forces, and this country’s allies. That context provides the significant aggravating feature of the offence.
5.
The appellant met the Iranian Military Attaché in Afghanistan, probably at the Iranian Embassy in August 2006, while he was on duty with General Richards. In September he began an email contact with the Military Attaché, which lasted until December when he was arrested. There were also some mobile telephone communications between the two men. At first the contact appeared to be merely courtesy contact. However, on 2
nd
November 2006 an email from the appellant to the Military Attaché included a number of observations such as “I have got a computer for you, the one you told me”, “I have taken 7 more pictures from those whose job is black”, “In the North Iran/Iraq border they are setting up a military camp. All the ground forces are there. Take care of that side. I don’t know the exact situation, but it is possible that it is close to a city called Alamara”. “I have taken a copy of my own passport”, “About my friend who saw you (about buying) he is waiting for the Defence Minister to sign it and then he will come to you” and finally “Many thanks. Any other work that you may have, I am at your service”.
6.
The appellant believed that the information that he was giving to the Military Attaché would be useful to him and that he would be pleased to receive it. The information in the email exchanges was imprecise and general, and the evidence suggested that the references in the emails did not, of themselves, provide any great cause for concern. Their author appeared to have a rather exaggerated sense of his own importance, and in the result no actual damage to operations was caused by the emails. However the fact of the communications caused actual damage to relationships between the various forces serving with NATO as well as with the Government of Afghanistan, and his activities undermined the role and position of the United Kingdom Armed Forces. There was, of course, the potential for very serious damage to the safety and operation of United Kingdom and Allied forces if the appellant’s activities had not been detected. As it was, he was arrested on 19 December 2006. When interviewed he made no comment.
7.
In his sentencing remarks Roderick Evans J carefully explained his approach to the facts disclosed in the evidence. It was not suggested on the appellant’s behalf that his assessment was inaccurate or unfair to the appellant. The judge concluded that the appellant intended that the information he passed to the Military Attaché would be useful to an enemy. When he sent the email on 2
nd
November he had already formed a clandestine relationship with the Military Attaché, who was a senior representative of the Iranian Authorities in Afghanistan and would have become the appellant’s handler or point of contact. The judge accepted that the first approach had been made by the Iranians to the appellant, choosing him because of his responsibilities as interpreter to the Commanding Officer of ISAF. As he had direct personal access to him and was present at meetings where topics of great sensitivity were discussed, he was in a unique position to assist the Military Attaché. In addition he would be susceptible to any such approach. First, he was of dual Iranian and British nationality, second, he had become disenchanted with the army, and third, his narcissistic personality, which gave him a grossly inflated idea of his own importance and abilities, made him that much more susceptible to the approach. The judge accepted that there was some force in the suggestion made on the appellant’s behalf that he was obviously unsuited to the position in which he found himself.
8.
The judge examined the damage caused by the email communication. He recognised that the relationship with the handler was in its infancy, that the appellant was offering services rather than being tasked, and that there was no direct damage to operations as a result. However the judge was concerned about the “immense” potential for serious harm which the appellant’s activities involved. The fact of his relationship with his Iranian contact had damaged trust between NATO and the Afghan Government and had the potential of inhibiting the sharing of information and intelligence between allies. The gravest part of the offence was the fact that it occurred while the appellant was serving in a war zone. The further aggravation was his belief at the time that the Iranians were supporting those in Iraq who were attacking British and American forces serving there.
9.
The judge concluded that a deterrent sentence was required, and there could in any event be no discount for a guilty plea.
10.
The argument in support of the appeal begins with the premise that the maximum sentence for the offence of which the appellant was convicted is 14 years’ imprisonment. From there Mr Colin Nicholls QC submitted on behalf of the appellant that the count of which he was convicted was not the most serious offence with which he was charged. He developed the submission that the offence of communicating information alleged in count 1 was not nearly as serious as the allegation in count 2 that the appellant collected information of a high degree of sensitivity. He challenged the suggestion advanced by the prosecution when explaining why the Crown would not seek a re-trial on counts 2 and 3, that count 1 was the most serious count. Mr Nicholls invited us to consider what level of sentence would have been appropriate if the appellant had been convicted on count 2 alone. He drew attention to a number of sentencing decisions, and focussed particular attention on
R v Smith
[1996] 1 CAR(S) 202 where the sentence for communicating information was reduced to 5½ years’ imprisonment, while the longer consecutive sentence for collecting information was unchanged.
11.
Turning to the specific circumstances of the offence Mr Nicholls emphasised that there was no evidence that the lives of any British soldiers was put at risk by the activities of the appellant, and that there were a number of significant mitigating features which taken in the entire circumstances of the case demonstrated that the appellant was not a “professional” spy.
12.
Our attention has been drawn to three sentencing decisions where, inevitably, the facts are different, and in any event and unusually, they span a period over 25 years from today. What is striking about these sentences is that they address the issue of totality, and that consecutive sentences were thought appropriate where the total effect of concurrent sentences would have been an insufficient punishment.
13.
Prime
[1983] 5 CAR (S) 127 underlines the importance of deterrence as an essential ingredient of the sentencing decision in a case where information of value to a foreign power was or was intended to be disclosed “it is much better that spying should never start than that spies should subsequently confess”. Here, of course, there was no confession. The necessity for deterrence was identified in this observation by Lawton LJ:
“Anyone, particularly those in the Armed Services and Government Service who is tempted, whether by money, threats of blackmail or ideology, to communicate sensitive information to a potential enemy, should have in mind what happened to this applicant. This is particularly so nowadays when, because of the developments in the gathering and storing of information by electronic means, those in comparatively lowly positions often have access to material which could endanger the security of the state if it got into the wrong hands.”
14.
Schulze and Schulze
[1986] 8 CAR (S) 463 involved foreign nationals present in this country in order to carry out spying activities, who were arrested before they had in fact collected or communicated any damaging information. They were sentenced to 10 years’ imprisonment. Although no harm was done, the sentences were upheld. It was an aggravating feature that they had come to this country for the purposes of spying: on the other hand, unlike the present appellant, they were not traitors.
15.
R v Smith
,
referred to earlier in this judgment, did indeed involve an element of treachery. The appellant was employed at a research centre which involved Government defence contracts, and over a period of about 22 months, he communicated technical information to agents of a foreign intelligence service. He was sentenced to a total of 25 years’ imprisonment. The sentence was reduced to 20 years’ imprisonment.
16.
Smith’s
security rating was relatively low. However he received at least £20,000 for communicating material and the court believed that the material must have been of value. That said, the sentence had to reflect the fact that such material as was disclosed had not endangered the lives of British subjects. Significantly, and by way of postscript to the judgment, the court emphasised the need for deterrent sentences. Lord Taylor CJ underlined that:
“Anyone who is prepared to betray his country must expect that he will receive a long sentence. It makes no difference that there may be variations in the political situation worldwide, or in the existence or non-existence of the Cold War, or any other possible source of war or threat to the United Kingdom in the future. Treachery is treachery. It must be deterred and it must be punished.”
17.
Having considered these authorities we shall assume for the purposes of Mr Nicholls’ argument that in this case the act of communication which actually took place was, as he argues, a lesser act than the acts of collection of information for the purposes of onward transmission alleged in count 2. We shall simply record that in our judgment if the appellant had been convicted on both counts the court might well have had to consider consecutive sentences to reflect his culpability.
18.
We repeat and endorse the observations of Lord Taylor CJ in relation to any case where a member of the Armed Forces, however junior, serving abroad in a theatre of military operations, chooses to disclose information to anyone which may be of use, directly or indirectly, to an enemy of this country or prejudicial to the interest and safety his colleagues and companions serving in a war zone and at daily risk of death or serious injury. The element of intended betrayal of serving colleagues makes this a very serious offence indeed. Fortunately, cases like these are very rare. When they do occur, there must be no doubt that even if the information disclosed is not proved to have caused any actual damage, and was brought to a halt before any such damage may have occurred, the deterrent element in the sentence is absolutely fundamental. In fact although no individual serving soldier was directly affected by the appellant’s activities, they did have a direct impact on the military relationships between NATO forces and the Afghan Government, and this alone might well have made the task of serving soldiers lengthier and more hazardous.
19.
The court has a duty to those members of the Armed Forces risking life and health and safety through loyal service to the interests of this country to provide such protection as can be provided in the fortunately very rare cases indeed of possible treachery from those working alongside them and who are treated as trusted colleagues. The sentence imposed after the trial in this case was not manifestly excessive. In our judgment it properly reflected the deterrent element which necessarily must govern every sentencing decision in cases of treachery.
20.
For these reasons this appeal against sentence was dismissed. | ```yaml
citation: '[2009] EWCA Crim 1261'
date: '2009-06-25'
judges:
- MR JUSTICE OWEN
``` |
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. [2022] EWCA Crim 1685
IN THE COURT OF APPEAL
CRIMINAL DIVISION
CASE NO 202104039/A4
Royal Courts of Justice
Strand
London
WC2A 2LL
Tuesday 13 December 2022
Before:
LORD JUSTICE DINGEMANS
MRS JUSTICE CUTTS DBE
HIS HONOUR JUDGE PICTON
(Sitting as a Judge of the CACD)
REX
V
OSITA ALAGBAOSO
__________
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 N MOHINDRU KC
appeared on behalf of the Appellant
MR R BARRACLOUGH KC
appeared on behalf of the Crown
_________
J U D G M E N T
LORD JUSTICE DINGEMANS:
Introduction
1.
This is the hearing of an appeal against sentence with the leave of the full court. The appellant, who had before these matters no previous convictions, is now a 20-year-old man having been born on 10 December 2002.
2.
The appellant pleaded guilty to an offence committed on 25 January 2020 of wounding Kaseem Ibrahim with intent contrary to section 18 of the Offences Against the Person Act. The time at which the plea was entered meant that the appellant was entitled to a discount of 10 per cent for the plea. The appellant was convicted on 28 April 2021, after a trial in the Crown Court at Maidstone, of the offence of murder of Jamie McFarlane committed on 14 March 2020. On 23 November 2021 the appellant was sentenced to detention at Her Majesty's Pleasure with a minimum term of 20 years, less time spent on remand on count 2 (which was the murder) and a concurrent term of 54 months' detention on count 1.
3.
Two co-defendants were convicted of perverting the course of justice and sentenced for those offences. The grounds of appeal are first, that in determining the minimum term the judge erred in concluding that the offence was pre-planned and that the appellant formed an intention to kill, and that insufficient weight was given to the provocation that the appellant had been subjected to. The second ground of appeal is that the sentence of 54 months for count 1, which was the wounding with intent, was not in accordance with the guidelines for the offence of wounding with intent and the principles to be applied when sentencing children and young people. The third ground is that in considering totality a minimum term of 20 years was manifestly excessive.
4.
The full court identified that they were interested in the point about the 54-month sentence and its relationship with the final sentence of 20 years, but granted leave on all grounds.
Factual circumstances
5.
The offending related to gang rivalry on the streets of Ashford in Kent. The appellant, then aged 17 years, having had his 17th birthday on 10 December 2019, and Joseph Matimba were part of a gang called the "No Plan B" (NPB) and the deceased was a member of another gang called the "K Block". All three had previously been friends but there had been a falling out over some fake bank notes which were used in a transaction.
6.
On 25 January 2020 the deceased sent a message threatening the appellant and in return the appellant taunted the deceased. The exchange of threats and taunts included the deceased threatening to kill the appellant.
7.
Later on 25 January 2020, Kaseem Ibrahim was sitting on a bench in Ashford Town Centre when he was approached by the appellant who had part of his face covered. The appellant said, "Where's the money?" and produced a knife. It was not recovered but was described as being about 14 inches in length. He stabbed at Mr Ibrahim, but Mr Ibrahim tried to run. As he did so the appellant stabbed him in the thigh and attempted to stab again. Mr Ibrahim managed to run off and the appellant gave chase.
8.
Mr Ibrahim attended hospital where he was treated for a stab wound to the back of his right upper thigh. The wound was washed and stitched and he was discharged. This was the wounding with intent to which the appellant pleaded guilty.
9.
Between the stabbing of Mr Ibrahim on 25 January and the murder of the deceased on 14 March 2020, there were a number of incidents between the two rival gangs during which both gangs instigated trouble. It included threats of violence being made and on one occasion members of the K Block chased Mr Matimba with machetes through a shopping centre in the town. One of the deceased's associates called Bright was particularly threatened in messages sent by the appellant and in one message he says: "I'm slicing you. See that shit stain on your face [a reference to a birth mark]. You'll have another one to the other side when my Rambo on move."
10.
Shortly after midday on 14 March 2020 the deceased was murdered on Arlington Road in Ashford. Telephone messages later recovered indicated that both the deceased and the appellant were engaged in separate drug dealing around the time. The appellant, who was armed with a kitchen knife and a Rambo-style knife, spotted the deceased and he ran towards him. The appellant pushed the deceased causing him to fall and then stabbed him twice with the kitchen knife. The knife broke. The deceased managed to run off but the appellant pursued him to a residential car park where there were other persons around. The appellant pulled out the Rambo knife but then turned around and walked away. The deceased collapsed and died at the scene. He had suffered two stab wounds to the back. The fatal wound went through the chest cavity, cut the edge of the spine and a rib before entering the left lung. The stab track measured some 17cm. The force used to inflict the fatal wound was described by the pathologist as moderate to severe. This was the offence of murder.
11.
After the killing the appellant met up with his co-accused Mr Matimba who lived in the area and they walked towards the town centre. On their way they hid two knives, one a Rambo knife and after belonging to Mr Matimba, under a railway bridge. In the town centre they went to a disabled toilet where the appellant changed his tracksuit bottoms. Outside KFC they met with the second co-accused, Mr Tejan. He drove both the appellant and Mr Matimba to an address in Canterbury. Later the appellant sent a message saying: "NPB to da world and back", along with an image of the deceased lying dead. That image had been uploaded to social media.
Sentencing Remarks
12.
So far as count 1 was concerned, the judge said he had regard to the guideline for wounding with intent. He considered that it was Category 3 harm, albeit towards the high end of the lowest category, because it was not life-threatening (Category 1) or grave (Category 2) and that there was culpability A with the use of a weapon. That gave for an adult a starting point of five years with a range of four to seven years. The judge noted that as the appellant was just 17 at the time of the offence the sentence would require modification under the Definitive Guideline for Sentencing Children and Young Persons. The judge then went on to say that the sentence was five years, reduced by 10 per cent which equated to six months to give the sentence of 54 months for count 1. The judge said that he treated count 1 as an aggravating factor for the sentence for murder and made the sentence of 54 months concurrent.
13.
The sentencing guidelines for children and young persons suggest a sentence of between half and two-thirds of that imposed on an adult would be appropriate where the offender is aged between 15 and 17 years, although any reduction is not to be undertaken as a mechanistic exercise. It is established that developmental age is as important as chronological age and we note that the appellant suffers from a speech and language disorder and had the benefit of an intermediary through the trial. Dr Conning, a clinical psychologist, had assessed the appellant as having significant ongoing difficulties and said that his overall level of cognitive function was in the borderline range. The judge, who saw and heard the appellant give evidence, said that if Dr Conning had seen the appellant give evidence she would have had to modify her opinion. The judge did not consider that the appellant's mental impairment reduced his culpability significantly.
The decision
14.
So far as the first ground of appeal is concerned and the issue of whether the judge was right to say that this was planned and that there was an intention to kill, in our judgment the judge, who had heard a long trial, was best-placed to determine the circumstances in which the murder took place and was entitled to conclude that this was a premeditated and unprovoked attack. It is right to point out, as Mr Mohindru has done in his helpful submissions, that parts of the sentencing remarks refer to defensive and attacking mode, but what is plain is that the judge found that there was planning. So far as the attack is concerned, once the deceased had been seen and the chase initiated, the force used to inflict the stab wounds, breaking the blade of the kitchen knife and subsequent chase with the Rambo knife, was capable of evidencing an intention to kill and the judge was entitled to make that finding.
15.
It is the second and third grounds of appeal that have caused the most difficulty because the judge was entitled to uplift the minimum term on count 2, treating count 1 as an aggravating factor and imposing a concurrent sentence on count 1 to reflect the principle of totality. The difficulty is that we do not know what sentence the judge thought was appropriate in relation to the murder alone.
16.
The judge thought that the appropriate sentence for the wounding with intent was five years before discount for plea. In our judgment, the judge was entitled for an adult to increase the starting point of five years because it was to the high end of the lowest category, as he had already identified, and reflect both aggravating features, and there were many aggravating features and mitigating factors (including age) before coming to a final sentence of five years before then discounting for plea. It is apparent that the judge did not add on the whole of the sentence for wounding with intent to the appropriate sentence for murder because that would inevitably have led to a sentence which would have exceeded the 20 years.
17.
Whichever way one approaches the sentences, the task we have to do is to step back and consider whether or not the judge's approach disclosed either an error of law or a sentence which was manifestly excessive. So far as error of law is concerned, we consider that the judge's approach was permissible under the guidelines in the manner that we have set out. So far as the issue of manifestly excessive is concerned, we have considered the matter with particular care. This was a trial judge who had heard the trial, who had seen all of the criminality that was proved. This was immensely serious offending which caused serious harm and, as the prosecution put it, there was extreme violence. It was plainly right for the judge to add on a part of the sentence for wounding with intent and that was because there was separate criminality and separate harm against a separate individual. If this court deconstructs the judge's sentence, doing the best we can, into sentences of 18 years plus two years in addition for the wounding with intent, one is still left with the sentence of 20 years. We consider that the sentence was severe but we are unable to say that it was manifestly excessive. We are very grateful to Mr Mohindru and Mr Barraclough for their helpful submissions.
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: '[2022] EWCA Crim 1685'
date: '2022-12-13'
judges:
- LORD JUSTICE DINGEMANS
- MRS JUSTICE CUTTS DBE
- HIS HONOUR JUDGE PICTON
``` |
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
[2022] EWCA Crim 1317
No. 202202220 A2
Royal Courts of Justice
Tuesday, 13 September 2022
Before:
LORD JUSTICE SINGH
MR JUSTICE FRASER
MR JUSTICE HENSHAW
ATTORNEY GENERAL'S REFERENCE:
Under Section 36 Of The Criminal Justice Act 1988
REX
V
MARK ANTHONY WILSON
REPORTING RESTRICTIONS APPLY:
Sexual Offences (Amendment) Act 1992
__________
Computer-aided Transcript prepared from the Stenographic Notes of
Opus 2 International Ltd.
Official Court Reporters and Audio Transcribers
5 New Street Square, London, EC4A 3BF
Tel: 020 7831 5627 Fax: 020 7831 7737
[email protected]
_________
MR S PERKINS
appeared on behalf of the Respondent
MR B HOLT
appeared on behalf of the Solicitor General
________
JUDGMENT
LORD JUSTICE SINGH:
Introduction
1
This is an application on behalf of His Majesty's Solicitor General for permission to refer a sentence to this court on the ground that it was unduly lenient under s.36 of the Criminal Justice Act 1988 ("the 1988 Act").
2
The principles to be applied on such application are well established and have been summarised as follows:
(1) The judge at first instance is particularly well placed to assess the weight to be given to competing factors in considering sentence.
(2) A sentence is only unduly lenient where it falls outside the range of sentences which the judge at first instance might reasonably consider appropriate.
(3) Leave to refer a sentence should only be granted by this court in exceptional circumstances and not in borderline cases.
(4) Section 36 of the 1988 Act is designed to deal with cases where judges have fallen into gross error: see, for example,
Attorney General's Reference (Azad)
[2021] EWCA Crim 1846, [2022] 2 Crim App R (S) 10 at para.72 in a judgment given by the Chancellor of the High Court.
3
The respondent offender in the present case was sentenced for a large number of offences to which he had pleaded guilty in the Magistrates' Court. There were 27 charges in all. On committal for sentence, he was sentenced by HHJ Stead at the Crown Court at Teesside on 15 June 2022 to a total of six years and eight months' imprisonment. The charges against the offender had been brought in three tranches. The first ten charges formed the basis of committal S20210372. He entered guilty pleas at York Magistrates' Court on 22 June 2021. The five charges which formed the basis of committal S20210349 were the subject of pleas on 16 August 2021 at the same court. The 12 charges that were the basis of committal S20220034 were the subject of guilty pleas at the same court on 3 February 2022.
4
In brief, the charges related to the offender communicating with, predominantly children, using various social media applications. He demanded indecent images of some of the children and, on occasion, threatened them with publication of this material if they did not send him further images. The facts are set out in detail at para.9 to 54 of the final reference before this court, but it is unnecessary for present purposes to rehearse the details here. It should be noted, however, that there were a large number of offences affecting many victims, including ten named victims, as well as others who clearly could not be identified because of the nature of the image offences. The offending spanned a period of some four years between 2017 and 2021. There were also disturbing elements of coercion and the making of threats that the offender would disclose to the children's parents what they had been doing on social media. On one occasion, the offender pretended to be a 10-year-old girl himself. We also note that some of the offences under committal S20220024 were committed while he had been released by the police pending investigation of earlier offences.
The Sentencing Process
5
The offender was born on 15 September 1986 and was aged 35. He had no previous convictions. The sentencing judge had several reports before him. These included a psychiatric report prepared by Dr James Todd on 18 October 2021. This said that the offender has a longstanding diagnosis of Autistic Spectrum Disorder. He was himself exposed to sexual abuse at an early age. The report concluded that the offender's experiences had resulted in behavioural problems that could be described as Attachment Disorder and Conduct Disorder. A later second report was obtained, but this was not served because it did not support the recommendation that there should be a Hospital Order made under s.37 of the Mental Health Act 1983.
6
The judge also had a pre-sentence report prepared on 6 September 2021 and an addendum to that report of 1 April 2022. The report expressed concern about the offender's behaviour, in particular because his offending had occurred over a long period between 2017 and 2021 and the offender sought to belittle his motivations. There was according to the report a "clearly established behaviour linked to sexual offending and threatening behaviour via electronic communication all linked to children". The offender was assessed in the report as posing a high risk of re-offending. He was found to pose a medium risk of committing a serious further offence in the next two years. He was assessed as a high risk of serious harm to children. In the addendum report, the view was expressed that his behaviour was unlikely to change.
7
The judge also had, and we have seen, victim personal statements from two of the victims. They spoke to the continued impact on both victims of the offender's conduct.
8
The numerous offences in this case fell into the following categories:
(1) Causing or inciting a child under 13 to engage in sexual activity (non-penetrative) for which the maximum penalty is 14 years' imprisonment. There were two charges of this kind.
(2) Causing or inciting a child aged 13 to 15 to engage in sexual activity (non-penetrative) for which the maximum penalty is again 14 years' imprisonment. There was one charge of this kind.
(3) Distributing or making indecent images of children for which the maximum penalty is 10 years' imprisonment. There were 14 charges of this kind.
(4) Sending an electronic communication which was grossly offensive for which the maximum penalty was two years' imprisonment. There were four charges of this type.
(5) Disclosing a private photograph without the consent of an individual with the intention of causing that individual distress for which the maximum penalty is two years' imprisonment. There was one charge of this type.
(6) Engaging in sexual communications with a child for which the maximum penalty is two years' imprisonment. There were five charges of this type.
9
There are relevant sentencing guidelines in relation to some but not all of those offences. The judge had the benefit of a detailed sentencing note on behalf of the prosecution. He also had submissions on behalf of the prosecution and in mitigation on behalf of the offender. To some extent, criticism is now made of the way in which the case was presented before the judge by counsel for the prosecution, although, in fairness, that has not been at the heart of the submissions made on behalf of the Solicitor General.
10
In arriving at sentence, the judge selected as the two most serious offences the charges of causing or inciting a child under 13 to engage in sexual activity (non-penetrative) contrary to s.8 of the Sexual Offences Act 2003. He imposed a sentence of four years' imprisonment on those two charges concurrent to each other, but consecutive to the other sentences. For the offence of causing or inciting a child aged between 13 and 15 to engage in sexual activity (non-penetrative) contrary to s.10 of the 2003 Act the judge imposed a sentence of two years' imprisonment but made this concurrent. For the offence of disclosing a private photograph without the consent of the individual with the intention of causing that individual distress contrary to s.33 of the Criminal Justice and Courts Act 2015 the judge imposed a sentence of eighth months' imprisonment made consecutive. A sentence of eighth months was also imposed for the offence of making an indecent image of a child contrary to s.1 of the Protection of Children Act 1978, but this was made concurrent. For the offence of distributing an indecent image of a child contrary to s.1 of the 1978 Act a consecutive sentence of eighth months was imposed.
11
Finally, it should be noted that for the offence of sending an electronic communication which is grossly offensive contrary to s.1 of the Malicious Communications Act 1988 a sentence of 16 months was imposed made consecutive. The judge made the sentence as high as it was because there was an element of racial aggravation. For the other offences, shorter sentences were imposed which were all made concurrent. The net result was that the consecutive sentences were as follows: four years' imprisonment; sixteen months' imprisonment; eight months’ imprisonment, and another sentence of eight months' imprisonment. That made a total of 80 months or six years and eight months. It was and remains common ground that it was appropriate for the judge to give full credit for the early guilty pleas. The sentence was therefore the equivalent of a ten-year sentence (120 months) if there had been a trial.
The Sentencing Remarks
12
The judge noted there were so many separate charges before the court of differing types that it was not possible to deal justly with the case by fixing a sentence for each of the charges and making all of them consecutive, even though the offending in most instances was separate in the sense of involving different complainants or different activities. The judge made it clear that he had read with care the pre-sentence report and its addendum and the report of Dr Todd. The judge expressly had regard to the principle of totality. He said that it was justifiable to impose some consecutive sentences. He said the approach he would take was to breakdown the offending into categories of offence rather than concentrating upon the different charges which followed after three sets of criminal investigations against the offender. The judge was of the view that the most serious of the offences concerned causing or inciting sexual activity of a child under the age of 13. He was right to do so. The judge was well aware of the seriousness of the offences in this case. He noted that some of the offences were as serious as can be imagined of offences of their kind.
13
Before the judge, it was the prosecution's submission that two most serious offences fell within Category 3B of the relevant guideline. The guideline recommends a starting point of five years' custody with a range of three to eight years. As we have noted, the judge imposed a sentence of four years' imprisonment on each of those two charges, but that of course reflected the early guilty pleas. He also made them concurrent to each other. The judge was aware that it would not be impossible to impose consecutive sentences, for example in relation to the making and possessing of indecent images of children. He chose, however, to make them concurrent for two reasons: first, the principle of totality and, secondly, in order to reflect the mitigation available to the offender in respect of his personal situation, capacity and difficulties. In relation to one offence, as we have said, the judge imposed a sentence of 16 months' imprisonment, which reflected the maximum penalty of two years after trial for such an offence. He did so because of the racial aggravation in that case.
14
The judge expressly addressed the issue of dangerousness at page 6F to G of his sentencing remarks:
"... it will be apparent from what I have said so far that I do not intend to apply the dangerousness provisions now enshrined in section 280 of the Sentencing Act. I have considered those matters, as I am duty bound to do so but, in all the circumstances, which include the fact that the defendant had not otherwise offended, he now being thirty-five, and also the fact that he has admitted these matters, and also the fact that he did not in fact make direct contact with any of the complainants in this case, I certify that I do not intend to apply the dangerousness provisions applicable though they otherwise are."
Submissions on behalf of the Solicitor General
15
On behalf of the Solicitor General there are two main submissions which are made by Mr Holt:
(1) The judge erred in failing to make a finding of dangerousness in respect of the offender.
(2) The overall sentence did not adequately reflect the entirety of the offending behaviour. In particular, it is submitted that it was wrong in principle for all the sentences imposed under S20220024 to run concurrently to the other sentences.
16
Other more specific criticisms are made in relation to two specific charges in relation to categorisation, for example, but Mr Holt candidly accepted at the hearing before us that those were unlikely to make any material difference to the overall outcome of this application.
17
It is submitted by Mr Holt that there was ample material before court to find the offender dangerous. In particular:
(1) The persistent offending against a number of victims.
(2) The contents of the reports that had been prepared about the offender.
(3) The lack of any genuine remorse.
18
It is submitted that the accounts provided by the offender to the report writers showed a contrived account that was ultimately not advanced by him. He had suggested that he had a benign motivation for his offending, although it is and has been readily accepted on his behalf that that did not provide a defence. He had suggested that he committed the offences in order to deter children who were making themselves vulnerable on the internet by revealing sexual images of themselves.
19
It is acknowledged that this court has shown a reluctance to interfere with the findings by a sentencing judge in relation to dangerousness where the judge has correctly applied the principles: see
R v Johnson
[2006] EWCA Crim 2486 at para.11 in which the judgment was given by the then President of the Queen's Bench Division. He said in relation to applications for reference by the Attorney General that:
"The Reference will not succeed unless it is shown that the decision was one which the sentencer could not properly have reached." [Para.11(i)]
20
Nevertheless, it is submitted that where a sentence has been found to be unduly lenient, it is open to this court to substitute a finding of dangerousness: see
R v Thomas and Bonner
[2022] EWCA Crim 665 at para.39.
21
The second main submission and the one on which Mr Holt has focused his oral submissions before us today is that the overall sentence was simply too lenient, in particular because there were concurrent sentences imposed for all the offences under committal S20220034. It is submitted that there should at least have been consecutive sentences in relation to some of these offences. By reference to the sentencing guideline on totality, it is readily accepted by Mr Holt that a just and proportionate sentence is not reached simply by adding up individual sentences. A reduction is appropriate in order to reflect the overall gravity of a defendant's offending behaviour.
Submissions for the Respondent
22
On behalf of the respondent offender, Mr Perkins submits that the judge was entitled to reach the conclusion that the offender was not dangerous. This was particularly in the light of the traumatic nature of his own early years; the particular difficulties associated with ASD; the absence of prior offending; factors pointing away from dangerousness, including the absence of any identified psychiatric condition, although in oral submissions Mr Perkins has rightly corrected that to accept, in the light of Dr Todd's report, that there is an identified psychiatric condition; and the absence of any grooming and/or direct contact offending. Mr Perkins points out that the judge gave this sentencing exercise careful consideration, adjourning it when there was insufficient time to hear it on the first occasion. He also retired for over an hour after the hearing and delivered reasoned sentencing remarks. Mr Perkins has reminded this court of the terms of s.308 of the Sentencing Act 2020 and he submits that the judge correctly had regard to all of the factors which he was required to consider by the legislation. We accept those submissions concerning the issue of dangerousness.
23
As this court has said on numerous occasions, including in
Johnson
, it is not its role on an application for reference such as this to substitute its own assessment of dangerousness for that of the sentencing judge. This court's role is the important but limited one of asking whether the judge has erred in principle and whether the conclusion reached was properly open to him. We do not consider that this is a case in which there would be a proper basis for this court to interfere with the assessment formed by the sentencing judge after careful consideration of all the relevant factors.
24
Next, Mr Perkins submits that the overall sentence passed was equivalent to a total sentence of 10 years after trial and that that was not unduly lenient, despite the number and different types of offence in this case. He also submits that the offences committed under S20220034 were committed between April 2020 and August 2020 and so broadly overlapped with those committed under committal S20210349 (May to September 2020). He submits that it would arguably have been unjust if the judge had imposed consecutive sentences for offences which had been committed contemporaneously with admitted offences, yet delayed in investigation and notification to the CPS reviewing lawyer. Overall, Mr Perkins submits that this was a complicated sentencing exercise conducted conscientiously by an experienced judge of the Crown Court.
25
We recognise that this was a difficult sentencing exercise, but, with great respect to the judge, we have reached the conclusion that the overall sentence in this case was unduly lenient in accordance with the principles we have identified at the outset of this judgment. In particular, it was wrong to make all of the offences under committal S20220034 concurrent, even having regard to the principle of totality. The number of different victims, the duration of the offending and its seriousness lead us to the conclusion that it was not reasonably open to the sentencing court to make all of those sentences concurrent. On the other hand, it is common ground that justice would not be served by simply making all of the sentences consecutive.
26
In the circumstances, what we propose to do is to take the sentence passed on the most serious charge under committal S20220034, which was charge two (causing or inciting a child under 13 to engage in sexual activity – non-penetrative), that is for four years' imprisonment, and make that consecutive rather than concurrent. In our judgment, that would lead to a total sentence which reflects the overall justice of the case.
Conclusion
27
For the reasons we have given, we grant the application for permission to refer this sentence to this court under s.36 of the 1988 Act. On that reference we make the sentence of four years' imprisonment on charge 2 under committal S20220034 consecutive to the other sentences. That means that the total sentence imposed on the offender is therefore 10 years and eight months' imprisonment.
__________ | ```yaml
citation: '[2022] EWCA Crim 1317'
date: '2022-09-13'
judges:
- LORD JUSTICE SINGH
- MR JUSTICE FRASER
- MR JUSTICE HENSHAW
``` |
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 1610
Case No:
2001105879A4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
THE CROWN COURT AT COVENTRY (HHJ ROSS)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
17/07/2012
Before :
THE PRESIDENT OF THE QUEEN’S BENCH DIVISION
MR JUSTICE WALKER
and
MR JUSTICE OPENSHAW
- - - - - - - - - - - - - - - - - - - - -
Between :
Rian Michael ILES
Appellant
Regina
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Ms Katy Thorne
(instructed by
GT Stewart
) for the
Appellant
Mr Benedict Leonard
(instructed by
the Crown Prosecution Service
) for the
Respondent
Hearing date: 30 April 2012
- - - - - - - - - - - - - - - - - - - - -
Judgment
Mr Justice Walker:
Introduction
1.
This is yet another case in which this court is compelled to warn of the dangers associated with the complexities of criminal justice legislation. In the present case that warning arises in two different respects.
2.
First, the complexities have caused difficulties for judges, court staff, prosecution and defence advocates and legal advisers, and defendants. Those difficulties could be very substantially reduced if the patchwork of criminal justice legislation were overhauled and replaced. Youth justice is one of several areas in which such difficulties are particularly acute. This case adds to the legions of examples of the importance of all concerned taking care to check the court’s powers and jurisdiction, and ensuring that cases involving young people are progressed speedily both at first instance and on appeal.
3.
Second, the complexities are such that there appears to have developed a practice under which the Magistrates’ Courts adjourn summary only matters, knowing the offender is due to appear at a Crown Court on other matters, and invite the Crown Court to enable the summary cases to be dealt with at the same time by the expedient of arranging for a Circuit Judge to sit as a District Judge. Such a practice has advantages, but there are dangers. Therefore before this practice is followed, the Magistrates’ Court must carefully consider whether this is in the interests of justice and ensure that there is power to do so. A Crown Court judge who is invited to deal with two sets of proceedings in this way must decide whether it is appropriate in the light of submissions from both the prosecution and the defence. For this purpose it must be kept firmly in mind that when sentencing as a District Judge the sentence is imposed by the Magistrates’ Court, and consideration must be given not only to advantages but also to dangers that may arise because (1) the judge would, as regards the Magistrates’ Court matters, be limited to the powers of a Magistrates’ Court, powers which must be carefully checked by counsel and the court; and (2) sentences that the judge imposes when sitting as a Magistrates’ Court would have a different route of appeal from that applicable to sentences imposed by the judge when sitting in the Crown Court. If the invitation is accepted, then consideration must again be given to these dangers at the stage of deciding what sentence should be imposed by the judge when sitting as a Magistrates’ Court.
4.
The present case concerns a youth who was 16 at the time of his offending. So far as this court is concerned it began in September 2011 when new solicitors for the applicant lodged at the Crown Court an application for leave to appeal against sentence, for an extension of time, and for legal assistance. The sentence was said to have been imposed by HHJ Ross sitting at Coventry Crown Court in respect of offences of “arson, criminal damage x 2, bladed article, abh, offensive weapon, s4 POA.” It had been passed on 8 October 2010, nearly a year earlier. The sentence was described as “4 years detention and 3 years extended licence – 128 days on remand to count”. The new solicitors had been instructed in January 2011, but funding and other difficulties had prevented them from assembling the necessary material prior to September 2011. Certain matters were then thought to require clarification. The result was that papers eventually came before the single judge in December 2011 with a note from the Criminal Appeal Office explaining that the extended sentence imposed on count 1 (which concerned an offence of criminal damage) was unlawful. The reason
for it being unlawful
was that criminal damage is not a specified offence and cannot therefore be the subject of an extended sentence.
5.
It had by this time become clear that in the Crown Court there had been a single indictment, T20100218, with two counts. The first of these counts concerned one of the criminal damage offences for which leave to appeal against sentence was sought. The second count concerned the offence of arson for which leave to appeal against sentence had been sought. The remaining offences were not on the court record as Crown Court matters. In that regard, the sentencing remarks on 8 October 2010 by HHJ Ross explained that he sat on that day alone in order to pass sentence on the offences in the indictment, and also sat with two justices in order to pass sentence on the remaining matters as a youth court.
6.
The single judge noted that the application suggested that the extended sentence was excessive, but he did not agree. However, as the extended sentence on count 1 appeared to be unlawful it needed to be considered by the full court. Because the sentence was in his view not otherwise open to criticism the single judge refused a representation order.
7.
The result was that the entire application for leave to appeal against sentence was referred to the full court. In the absence of a representation order Ms Thorne indicated that she would appear pro bono in order to seek leave to argue that the extended sentence on count 2 was manifestly excessive. The matter was initially planned to come before the full court on 21 March this year. At that stage it was seems to have been appreciated that the Youth Court on 8 October 2010 had imposed sentences of detention, and that these were unlawful: the only sentences that could have been passed by the Youth Court for these offences, given that the applicant was under 18 at the date of his conviction, were detention and training orders. Unlawful sentences by the Youth Court cannot be remedied by this court. In order to quash the Youth Court’s unlawful sentences it was envisaged that the court would reconvene as an Administrative Court. However the constitution of this court proposed to deal with the case on 21 March 2012 was thought to be unable to do this and the matter was put back.
8.
The case thus came before us on 30 April 2012. By this stage there were three further developments. First, it was thought that the applicant’s expected release date (i.e. the date when the applicant could expect his period of licence under the Crown Court sentence of 8 October 2010 to begin) was imminent. Second, the Registrar had very recently granted Ms Thorne a representation order, advising her that issues arose not only as to the invalidity of the Crown Court sentence on count 1 and the Youth Court sentences of detention, but also as to the ability of the Youth Court to commit the criminal damage offence to the Crown Court for trial and as to whether the Crown Court, when identifying a custodial term for the purpose of passing an extended sentence on count 2, could take account of the offending that gave rise to the sentences imposed by the Youth Court. Third, the Registrar had equally recently invited the prosecution to appear at the hearing in order to assist on these points. At the hearing Ms Thorne and Mr Leonard appeared for the applicant and the prosecution respectively. Neither of them had appeared below. Each produced helpful written notes for us, both before and after the hearing. We are grateful to them for their assistance.
9.
At the conclusion of argument we indicated that we would announce our decision at once and would give reasons later. We stated that sitting as a Divisional Court we quashed the decision of the Youth Court committing the applicant for trial to the Crown Court on what became Count 1 of the indictment, along with the sentences imposed by the Youth Court on 8 October 2010, for which lawful sentences would be substituted. Sitting as the Court of Appeal Criminal Division we granted leave to appeal against the sentences imposed by the Crown Court on 8 October 2010, and treated the hearing of the application as the hearing of the appeal. On Count 1 we allowed the appeal, quashed the sentence and made no further order. On Count 2 we allowed the appeal, quashed the sentence, and in its place imposed a sentence of 2 years 6 months detention pursuant to s.91 of the Powers of Criminal Courts (Sentencing) Act 2000. This accordingly became the total sentence imposed by the Crown Court, and was subject to a direction that credit be given for the full period of time spent in custody on remand of 128 days.
10.
We now give our reasons for our decision.
The commission of the offences
11.
The offences dealt with by the Crown Court occurred on 13 May 2010. Late that evening police officers attended Stoke Park School, following a report that someone was smashing windows there. They found the appellant running from the scene and arrested him. The appellant had smashed 22 windows with a crowbar and by kicking. One of the windows had been prised open, and within the English block an attempt had been made to start a fire. That block was found to be full of smoke. A deodorant can was found in the corridor. It was wrapped in some kind of material and set alight. In interview the appellant admitted causing the damage and attempting to set fire to the school because he had been banned from attending the school prom. He was given police bail with a curfew.
12.
At the time of the attack on the school the appellant was living with his aunt and her husband, Mr. and Mrs. Jones. They were acting as foster carers for the appellant after his mother had died. He continued to live with Mr and Mrs Jones after the attack on the school and while on police bail. During this period the appellant committed offences on 22 to 23, 27 and 30 May 2010. All these offences were dealt with by the Youth Court.
13.
At around 9 p.m. on 22 May 2010 the appellant returned home. Mrs. Jones was angry with him as he was in breach of his curfew and he appeared to be drunk. There was an argument and the appellant stormed out. He returned a few hours later but continued to argue with Mrs. Jones. He stormed out again taking a knife with him. He went outside and stabbed two tyres on Mrs. Jones’ car and also kicked a wing mirror. The appellant went back inside and continued to argue. Mrs. Jones was very frightened but the appellant did not threaten her. Mr. Jones then returned home and found the appellant being aggressive towards his wife. Mr. Jones, fearing for his wife’s safety, punched out at the appellant. The appellant retaliated and there was a struggle during which Mr. Jones received a cut to his head which bled. The appellant left the house again and made his way to a public house. There he picked up a pool cue and was heard to make threats against Mr. Jones. The police were called and found the appellant in a nearby street with the pool cue in his hand. Officers told him to drop the cue but he refused and tried to run off. The appellant then turned and made threatening gestures towards the officers. The officers used a taser to overpower him and he was arrested. In interview he eventually admitted that he was going to use the pool cue on Mr. Jones. He was bailed again.
14.
On 27 May 2010 the appellant had a meeting with his youth worker. During that meeting the youth worker became concerned with what appeared to be the appellant’s obsession with knives. The applicant also threatened to kill his cousin Karl.
15.
At 10.20 p.m. on 30 May 2010 the appellant went to the home of Mr. and Mrs. Jones. He had others with him. He was armed with a pool cue and was wearing a Halloween mask. He made threats and the police were called. When they realised the police had been called the appellant and the others ran off.
The court proceedings
16.
With the benefit of Mr Leonard’s researches after the hearing we have more detailed information about the court proceedings than was available to us on 30 April 2012.
17.
As regards the events of 13 May 2010, the CPS file indicates that the appellant was charged with arson and criminal damage. When he first appeared for these offences before the justices, which appears to have been on 2 June 2010, they concluded that the arson was a grave crime and was so serious that it could not be dealt with in the youth court. Jurisdiction was declined under s.24 of the Magistrate’s Courts Act 1980 and the matter was adjourned for committal for trial to the Crown Court.
18.
The eventual committal hearing is recorded as having taken place on 13 August 2010. A memorandum of entry for that day notes that the appellant was in custody. It records the position in relation to the offence of arson as follows:
1. Arson
On 13/05/10 at Coventry in the County of West Midlands committed arson in that, without lawful excuse, you destroyed by fire walls and carpets to the value of £100.00 belonging to Stoke Park School intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged
Contrary to sections 1(1), 1(3) and 4 of the Criminal Damage Act 1971.
…
Mode of Trial: Court directs trial by jury – 02/06/2010
Results
Committed to CC in custody
Committed for trial under section 6(2) Magistrates’ Court Act 1980 to Coventry Crown Court ...
19.
The same memorandum of entry records the position in relation to the offence of criminal damage as follows:
2. Criminal damage to property valued under £5000
…
On or about 14/05/10 at Coventry in the County of West Midlands without lawful excuse, destroyed windows to the value of £5000 belonging to Stoke Park School intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged
Contrary to sections 1(1) and 4 of the Criminal Damage Act 1971.
…
Results
Committed to CC in custody
Committed for trial under section 6(2) Magistrates’ Court Act 1980 to Coventry Crown Court ...
20.
On 24 May 2010 the appellant appeared before the justices in relation to the events of the night of 22 to 23 May 2012. He pleaded guilty on that day to offences of criminal damage (to the tyres), possession of a bladed article in a public place, assault occasioning actual bodily harm, possession of an offensive weapon, and threatening behaviour. The matter was adjourned for sentence.
21.
On 10 June 2010 the appellant appeared before the justices and pleaded guilty to the offence of making threats to kill on 27 May 2010 and the offence of affray on 30 May 2010. Those matters, too, were adjourned for sentence.
22.
The Crown Court’s record sheet for indictment T20100218 stated that the appellant had been arraigned before HHJ Ross on 13 August 2010 and had pleaded guilty on that day to both counts. There was a further hearing before HHJ Ross on 23 September 2010 prior to the sentencing hearing on 8 October 2010.
23.
Indictment T201000218 made no mention of the value of damage to property on either count.
Information before the court when sentencing
24.
The appellant was born on 23
rd
November 1993 and was thus sixteen and a half years of age at the time of these offences. He had previously been convicted in April 2010 for assault on a constable. He had also received reprimands in January 2007 and January 2008 for affray and possessing alcohol in a sports ground.
25.
A letter had been written by the appellant to the court. It said that he realised that what he had done was irresponsible and dangerous. After spending a period of time in jail with other criminals he did not want to end up like them. He expressed a determination to “stay off the beer” and said he would like to make his mum proud and join the army.
26.
A pre-sentence report which was before the court can be summarised as follows. The appellant said his offending began when he discovered his aunt had contact with his father and kept it from him. He was angry that she had not told him. The appellant showed very little empathy and no remorse. Social Care had been involved with his family since 2005 and the appellant was subject to a care order. The appellant admitted that he drank to intoxication and said he had tried various drugs. The opinion of the author was that he required a lot of work on his anger management. The appellant was likely to re-offend and the risk of harm was very high. Nevertheless the author of the report recommended a youth rehabilitation order with a supervision requirement, a curfew requirement and an electronic monitoring requirement.
27.
The court also had reports from a psychiatrist and a psychologist. The main points made by the psychiatrist were these. The appellant was not suffering from a mental illness and did not suffer from a psychotic or mood disorder. There was nothing to suggest a hospital disposal. However he did fulfil the criteria for a conduct disorder. The opinion was expressed that since the death of the appellant’s mother his difficulties had been exacerbated. His lack of concern for the well being of others was of some concern.
28.
The psychologist said that the appellant presented with delinquent predisposition and was at risk of behavioural disorder diagnosis. His aggressive behaviour had been present for a number of years. This had increased since the death of his mother. He presented a risk of re-offending due to his experiences, distorted beliefs and attitude. However he was motivated to engage with intervention and treatment.
The sentencing remarks
29.
As noted earlier, when sentencing on 8 October 2010 HHJ Ross began by saying that he sat alone in order to pass sentence on the offences in the indictment, and sat with justices in order to pass sentence on the remaining matters as a youth court.
30.
The judge said at an early stage in his remarks that the sentence was going to be a sentence under the dangerousness provisions. He stated that in relation to the counts of arson and criminal damage he was satisfied that the appellant posed a significant risk of committing further specified offences which would cause serious harm. The judge continued that in relation to the arson and criminal damage matters “the minimum term would be one of four years’ detention.” He added:
But obviously I reflect in my sentencing the impact that the other matters would have in reaching that aggregate figure.
31.
Turning to the events of 13 May 2010, the judge said that what the appellant did arose out of a grudge, and there was no doubt that the appellant had every intention of burning down that block of the school. He had expressed disappointment in failing to achieve that aim and it was also noted he had caused massive havoc smashing many windows. The school was unoccupied but there could have been risk to fire-fighters, the caretaker and the police officers.
32.
As to events after 13 May 2010, the judge noted that they were committed while the appellant was on bail and that was an aggravating feature. While drunk and in breach of his curfew the appellant stabbed two tyres on Mrs. Jones’ car, left Mr. Jones with a nasty cut to his head, armed himself with a pool cue and uttered threats, and threatened police officers with the pool cue before he was overpowered. His confrontation with the police demonstrated vividly his attitude. Only five days later the appellant threatened to kill his cousin and he intended that his youth worker would take that threat seriously. The affray on 30 May had many aggravating features. He was once again on bail, the attack was on a home, he was the leader of a group, he was armed with a pool cue, and he had worn a mask to frighten.
33.
The Judge stated that as what he referred to as a “minimum term” was appropriate for the arson and criminal damage on the indictment, the sentences for the other offences would be concurrent to the “minimum term”. The pleas of guilty, the appellant’s youth, and totality were all borne in mind and those sentences came to 12 months detention. The judge explained that this comprised concurrent sentences. As regards sentences for offences on 22 to 23 May 2010, they were criminal damage (to the tyres), two months’ detention; possession of a bladed article, nine months’ detention; assault occasioning actual bodily harm, 12 months’ detention; possession of an offensive weapon (the pool cue), nine months’ detention; threatening behaviour (the incident with the police), four months’ detention. Also concurrent with these sentences and with each other were sentences of nine months’ detention for threats to kill and for affray.
34.
The judge then returned to what he continued to call the “minimum term”. Working from a figure of 4 years he noted that the appellant had already spent the equivalent of nine months on remand and that brought it down to three years and three months. The judge’s conclusion was that, bearing in mind the appellant’s age, he had to order a “minimum tariff” of 19 months. He asked both counsel to check his methodology and arithmetic, and went on to explain his reasons for setting an extension period of 3 years and for his finding of dangerousness. He then asked counsel for both prosecution and defence whether he may have fallen into error and received responses to the effect that neither of them had detected any error. The judge thanked them for their assistance and commented this was one of the most difficult sentencing exercises he had tackled.
35.
Overnight the judge appreciated that he had fallen into error in thinking that he should fix a “minimum term” or “minimum tariff”. On his instruction the sentence was recorded as a sentence of 4 years’ detention with extended licence of 3 years.
Jurisdiction of the Crown Court
36.
Section 24 of the Magistrate’s Courts Act 1980, [as in force on 13 August 2010] provides:
24.— Summary trial of information against child or young persons for indictable offence.
(1) Where a person under the age of 18 years appears or is brought before a magistrates' court on an information charging him with an indictable offence other than one falling within subsection (1B) below, he shall be tried summarily unless—
(a)
…
the offence is such as is mentioned in subsection (1) or (2) of section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (under which young persons convicted on indictment of certain grave crimes may be sentenced to be detained for long periods) and the court considers that if he is found guilty of the offence it ought to be possible to sentence him in pursuance of subsection 3 of that section; or
(b) he is charged jointly with a person who has attained the age of 18 years
and the court consider it necessary in the interests of justice to commit them both for trial;
and accordingly in a case falling within paragraph (a) or (b) of this subsection the court shall commit the accused for trial if either it is of opinion that there is sufficient evidence to put him on trial or it has power under section 6(2) above so to commit him without consideration of the evidence.
(1A) Where a magistrates' court—
(a) commits a person under the age of 18 for trial for an offence falling within subsection (1B) below; or
(b) in a case falling within subsection (1)(a) above, commits such a person for trial for an offence,
the court may also commit him for trial for any other indictable offence with which he is charged at the same time if the charges for both offences could be joined in the same indictment.
(1B) An offence falls within this subsection if—
(a) it is an offence of homicide;
(b) each of the requirements of section 51A(1) of the Firearms Act 1968 would be satisfied with respect to—
(i) the offence; and
(ii) the person charged with it,
if he were convicted of the offence
(c) section 29(3) of the Violent Crime Reduction Act 2006 (minimum sentences in certain cases of using someone to mind a weapon) would apply if he were convicted of the offence.
(2) Where, in a case falling within subsection (1)(b) above, a magistrates' court commits a person under the age of 18 years for trial for an offence with which he is charged jointly with a person who has attained that age, the court may also commit him for trial for any other indictable offence with which he is charged at the same time (whether jointly with the person who has attained that age or not) if the charges for both offences could be joined in the same indictment .
(3) If on trying a person summarily in pursuance of subsection (1) above the court finds him guilty, it may impose a fine of an amount not exceeding £1,000
or may exercise the same powers as it could have exercised if he had been found guilty of an offence for which, but for section 89(1) of the said Act of 2000, it could have sentenced him to imprisonment for a term not exceeding—
(a) the maximum term of imprisonment for the offence on conviction on indictment; or
(b) six months,
whichever is the less.
(4) In relation to a person under the age of 14 subsection (3) above shall have effect as if for the words £1,000” there were substituted the words “£250.”
37.
It is common ground that the appellant was properly committed to the Crown Court for trial on the charge of arson under section 24(1)(a) above. Arson is a grave crime as defined in section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. Under section 24(1) the justices – if they are satisfied that the requirements of section 24(1)(a) are met – are to make such a committal under section 6(2) if the requirements of that subsection are met. There is no complaint about the appellant’s committal for trial under that subsection in this case. There is accordingly no need to consider the possible alternative route of sending for trial under section 51A of the Crime and Disorder Act 1998.
38.
Criminal damage is not a “grave crime” in the sense described above. The appellant could, however, be committed for trial in the Crown Court in respect of the charge of criminal damage if it fell within section 24(1A)(b). In the light of the material submitted to us following the hearing at our request we conclude, contrary to our initial decision, that this provision entitled the justices to take the course that they did. The reason is that the offence of criminal damage is an indictable offence. Section 22 of the Magistrates’ Courts Act 1980 lays down a procedure under which it must be tried summarily where the value of the destroyed property, or of the damage to property, does not exceed £5,000 – but by section 18(1) of that Act this procedure is confined to offenders who have attained the age of 18. The result may seem surprising at first sight, but it should be noted that there are in any event powers under section 40 of the Criminal Justice Act 1988 to add summary only offences to an indictment. Powers of sentencing are not enlarged under s 40. That being so, it seems to us that the effective position will be the same in a case where committal is under s 24(1A)(b), for it would be wrong to impose on a young offender a sentence more severe than that applicable to an adult – compare the decision of Bean J in
P v. Leeds Youth Court
[2006] EWHC 2527 (Admin)
.
39.
In these circumstances, the answer to the query raised by the Registrar is that the committal for trial to the Crown Court of the criminal damage offence was lawful. In our capacity as a Divisional Court, we recall our order insofar as it quashed the committal for trial to the Crown Court of the criminal damage offence.
The appropriate sentence in the Crown Court
40.
Under section 228(2A) of the Criminal Justice Act 2003 in a case like the present the court may impose an extended sentence of detention only if the term that it would specify as the appropriate custodial term would be at least four years. The judge when sentencing implicitly acknowledged that the offence of arson on its own could not properly result in such a custodial term. He relied on the other offending in order to arrive at the necessary figure. One of the questions identified by the Registrar was whether the Crown Court, when identifying a custodial term for the purpose of passing an extended sentence on count 2, could take account of the offending that gave rise to the sentences imposed by the Youth Court. We do not need to decide that question, and we leave it over for determination in a case where the answer will affect the outcome of the appeal. It does not affect the outcome in the present case because, even taking account of all the other offending, a custodial term of 4 years would in our view have been manifestly excessive. The offences involved alarming violence and threats of violence. Bearing in mind the appellant’s age, however, they were not in such a category as would warrant a custodial term of 4 years. It was for that reason that we quashed the extended sentence imposed by the judge.
41.
In its place we imposed on count 2 for the offence of arson a sentence under s 91 of the 2000 Act of 2 years 6 months’ detention. Ms Thorne accepted that a determinate custodial sentence, albeit for a term significantly less than 4 years, was appropriate. We have been assisted by a report prepared for this court which explained how, after seriously disruptive behaviour during the period to August 2011, the appellant appeared to have settled down. In considering the appropriate determinate term we have regard to
the principal aim of the youth justice system (to prevent offending by
children and young persons), to the welfare of the appellant, and to the Definitive Guideline
Overarching Principles
–
Sentencing Youths
issued by the Sentencing Guidelines Council in November 2009. We
note that the arson did not cause substantial monetary damage, but it was nevertheless a grave offence carrying obvious dangers not merely to property but also to human life. When arriving at a term of 2 years 6 months we did not take into account the appellant’s criminality in committing the offences which were dealt with in the Youth Court. In that regard we have not sought to determine whether the Crown Court has power to do so. We simply record that those offences were committed by the appellant, will have been punished by the sentences which we set out (in our capacity as a Divisional Court) at paragraph 42 below, and are not matters for which the Crown Court sentence seeks to punish the appellant. Since the hearing we have recalled our order quashing the committal on count 1, and thus a question might arise as to whether the sentence for arson might appropriately be increased to take account of the criminal damage associated with it. In the circumstances of the present case we do not think it would be appropriate to do so. In relation to the criminal damage on count 1 our order will be revised so as to impose no separate penalty.
The sentences in the Youth Court
42.
Our reasons for our order as a Divisional Court quashing the Youth Court sentences have been given above: there was no power in the Youth Court to impose sentences of detention. Under section 43(1) of the Senior Courts Act 1981 we do not quash the convictions in the Youth Court, but instead we substitute sentences which we arrive at after having regard to
the principal aim of the youth justice system (to prevent offending by
children and young persons), to the welfare of the appellant, and to the Definitive Guideline
Overarching Principles
–
Sentencing Youths
issued by the Sentencing Guidelines Council in November 2009. We
replace the sentences for the offences on 22 to 23 May 2010 with the following: on offence 1, criminal damage (to the tyres), no separate penalty; on offence 2, possessing a bladed article, no separate penalty; on offence 3, assault occasioning actual bodily harm, a detention and training order for a period of 8 months; on offence 4, possession of an offensive weapon (the pool cue), a detention and training order for a period of 4 months, and on offence 5, threatening behaviour (the incident with the police), no separate penalty. For the offences on 27 and 30 May 2010 we replace the sentences with the following: offence 1, threats to kill, a detention and training order for a period of 4 months, on offence 2, affray, a detention and training order for a period of 4 months. All these sentences run concurrently to each other. They all commence with effect from 8 October 2010, and thus run concurrently with the replacement sentence of 2 years 6 months’ detention imposed by the Crown Court.
Conclusion
43.
Once Ms Thorne had advised that the extended sentence imposed on 8 October 2010 was wrong in principle and manifestly excessive the case needed to be progressed urgently. There was a real risk that if the appeal succeeded the sentence substituted by the court would involve a period in custody prior to release on licence which would by that time already have been exceeded. In the event, the appellant’s disruptive behaviour while in custody led to a further sentence being imposed. The result may be that the appellant has not served a significantly longer period in custody than would have been appropriate in the light of our decision.
44.
It is particularly regrettable that in the present case, when HHJ Ross sought assistance from counsel then appearing, his attention was not drawn to the difficult questions which arose. It is at least possible that in that event some of the problematic features in the present case might not have arisen. | ```yaml
citation: '[2012] EWCA Crim 1610'
date: '2012-07-17'
judges:
- 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}
======
| Neutral Citation Number:
[2011] EWCA Crim 1712
Case No.
2010/02112/D4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Thursday 30 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 -
THOMAS DENNIS GREGORY
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4
Telephone No: 020 7404 1400; Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr M Tregilgas-Davey
appeared on behalf of the Appellant
Mr R Tutt
appeared on behalf of the Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
THE LORD CHIEF JUSTICE:
1. This is an appeal against conviction by Thomas Gregory, who, following a ruling made by His Honour Judge Field in the Crown Court at Swindon that
section 1(1) of the Firearms Act 1968
created an absolute offence, pleaded guilty on re-arraignment to possessing an altered firearm without a firearm certificate, contrary to
section 1(1)(a)
of the
Firearms Act 1968
, and possessing a firearm when prohibited, contrary to section 21(1) of the same Act.
2. On 17 March 2010, after a
Newton
hearing, he was sentenced to four years' imprisonment on count 1 and three years' imprisonment on count 2, to run concurrently. An appropriate direction in relation to time spent on remand was made.
3. The essential facts can be briefly summarised. On 12 August 2009 the appellant and his mother were observed going into a wood in Wiltshire. About an hour later they emerged. The appellant was the front seat passenger of the car driven by his mother. The car was stopped. In the boot of the vehicle a sawn-off shotgun was found. The prosecution case on count 1 was that the appellant had entered the wood to collect the sawn-off shotgun. As to count 2, he was prohibited from possessing a firearm because he had been sentenced to a period of four years' detention in June 2003.
4. When the case was listed Judge Field was invited to consider whether the offence alleged against the appellant was an offence of strict liability, or, without the precise refinements of the difference being analysed, an offence of absolute liability, and in particular whether the facts asserted by the appellant gave rise to any defence. In essence, and based on his interview with the police, the appellant asserted that he had stopped to urinate while walking in the woods and noticed a package which, on closer examination, he realised was a firearm. He said that he had picked it up, walked 100 yards or so back to his mother's car with it, and put it into the boot of her car. His original intention was to keep it, but his mother prevailed on him to hand the firearm in to the police. They were on their way to the local police station to hand in the weapon when they were stopped.
5. The judge ruled that
section 1(1) of the Firearms Act 1968
created an absolute offence and that the mental state of the appellant was irrelevant. The Act provided a number of different exemptions from criminal liability which were not covered. He continued:
"So notwithstanding the fact that the [appellant] said this is most unfair, that he was genuine in his intention to take the weapon straight to the police, once he is prosecuted he is bound up with this particular section which .... creates an absolute offence."
6. The judge therefore ruled that there was no defence to the charge, although he indicated that the circumstances would be highly relevant to sentence and that if the appellant pleaded guilty, the case would proceed to a
Newton
hearing for decision whether his account of these events was true, or whether, as the prosecution contended, the appellant had visited the particular spot with the specific intention of recovering the weapon and thereafter keeping it for himself.
7. Following the judge's ruling the appellant pleaded guilty and gave evidence at a
Newton
hearing, consistent with his account in interview. His mother, who had also been interviewed at the time when the car she was driving was stopped, gave evidence to similar effect. The judge made a number of findings of fact. The appellant had not come across the gun by chance. Nor had he proposed immediately to take it to the police station.
8. For present purposes, the outcome of the
Newton
hearing is not relevant. The submission is that in his ruling before the appellant pleaded guilty the judge erred in law when he concluded that on the basis of the facts disclosed during the police interview, there was no defence. The submission is that Parliament could not have intended to criminalise an individual who took possession of a firearm in order to hand it over directly to the police. That does not quite reflect what the appellant intended. He was certainly in possession of the firearm, and for a time at least he did not intend to hand it in to the police. He intended to keep it for himself.
9. The original basis for the appeal was that the judge was wrong to conclude that
section 1(1)
of
the 1968 Act
created an absolute offence and that the mental state of the appellant was irrelevant.
10. In our judgment the effect of the judge's ruling was correct, although it was wrong for him to describe the offence as one of absolute liability. To be in possession of a firearm without a firearm certificate is an offence of strict liability. The authorities are consistent and numerous. They are conveniently summarised in
R v Zahid
[2010] EWCA Crim 2158
, adopting
R v Deyemi and Edwards
[2008] 1 Cr App R 25
. In
Zahid
this court certified that a point of law of general public importance was involved in the decision. The point certified was:
"In a case where the defendant has accepted a package into his possession, and the package is found to contain prohibited ammunition, does the prosecution have to prove that the defendant knew that the package contained ammunition, or was reckless that the package might contain ammunition and nonetheless retained possession, in order to sustain a charge under section 5(1A)(f) of the
Firearms Act 1968
?"
Leave to appeal to the Supreme Court was refused. The Supreme Court has recently rejected the application for leave to appeal. The strict liability principle is unchanged.
11. The original hearing of the present appeal was postponed, pending the consideration of
Zahid
by the Supreme Court. In the light of that decision the original argument, as developed before Judge Field, and then in this court, was no longer pursued. Instead a new argument was developed: that the defence of duress of circumstances would have been open to the appellant; accordingly, the guilty plea was entered on a flawed basis, and the conviction is unsafe.
12. The defence of duress of circumstances is of strictly limited ambit. Nevertheless, it is possible to envisage circumstances in which, in the context of possession of a firearm, it, or a defence of necessity, might arise. In argument Walker J invited consideration of a situation in which a member of the public, witnessing a man firing a gun in a school room, disarms him and seizes hold of the weapon. A similar situation would arise if a bank robber drops his gun and a member of the public seizes hold of it and runs away with it to a safe place to keep it until the police arrive. We do not propose to give a ruling on these hypothetical cases. They must be decided in the light of their individual facts when they arise. We simply observe that in such extreme circumstances it may not be sufficient or fair to the public-spirited citizen to assume that because he or she would never be prosecuted and that, if a prosecution were mounted, the case would be disposed of by an absolute discharge, the possible duress/necessity defence would be bound to fail. But even these hypothetical facts do not exist here. There is and never has been any doubt that there was a time when the appellant was voluntarily in possession of the firearm, and that he remained in possession of it, intending to keep it for his own use. For a time, at any rate, even on the best possible view of his account, he had no altruistic or public-spirited intention, and there were no circumstances which created the slightest duress. None was suggested in his interview; none was suggested on his behalf prior to the judge's ruling; and in reality, even when he gave evidence at the
Newton
hearing, he did not suggest any duress of circumstances.
13. Accordingly the ruling made by the judge was not only correct in the context in which he was considering it, but, on the facts on which he based his ruling, no defence was disclosed. The plea was a properly informed and voluntary one. The conviction is safe.
14. We end by reminding ourselves that in this case the police and CPS never accepted for a moment that the appellant was in possession of the firearm for any altruistic motive. They had good reason for rejecting any such notion. The appellant was rightly prosecuted. His explanation was carefully considered at the
Newton
hearing. If Judge Field had not been sure that he should reject the evidence of the appellant and his mother, the sentencing outcome would have been very different. But at the conclusion of the hearing he rejected their accounts and he passed sentences which properly reflected the appellant's criminality.
________________________________ | ```yaml
citation: '[2011] EWCA Crim 1712'
date: '2011-06-30'
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}
======
| No:
200701502/B3
Neutral Citation Number:
[2007] EWCA Crim 2757
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Monday, 15th October 2007
B e f o r e
:
LORD JUSTICE TOULSON
MR JUSTICE GIBBS
HIS HONOUR JUDGE WIDE QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
CASIM SCOTT
- - - - - - - - - - - - - - - - - - - - -
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 N Rudolf
appeared on behalf of the
Appellant
Miss G Ong
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE TOULSON: The appellant arrived at court over an half-an-hour late for surrendering to custody. The reason he was late was that he had overslept.
2.
On those simple facts the questions of law raised by this appeal are whether he was guilty of an offence under
section 6 of the Bail Act 1976
and whether the judge was wrong in requiring that the matter be put to him.
3.
The appellant had been charged with a firearm offence and three drug offences. He had been committed on bail to appear at Snaresbrook Crown Court at 10.00 am on 29th January 2007. The matter was listed for a plea and case management hearing.
4.
The case was called on at 10.15 but the appellant was not there. For practical reasons the case was transferred to the list of another judge, His Honour Zeidman QC. When the matter was called on before him, there was still no sign of the appellant. The judge was on the point of issuing a bench warrant when the appellant walked in. The judge put the case back until later in the morning and refused bail in the meantime.
5.
When the case came back before him it was argued on the appellant's behalf that half-an-hour's late was a de minimis failure to comply with the conditions of his bail and that no Bail Act offence should be put to him. The judge rejected that argument. The Bail Act offence was then put to the appellant and he pleaded guilty. He also pleaded guilty to the other offences with which he was charged. He was remanded on conditional bail until sentence. As a matter of record, when he appeared for sentence he received a community penalty for the substantive offences and no separate penalty in respect of the Bail Act offence. The reason why the appellant is concerned to challenge the judge's decision to put the matter to him was that he now has, on his record, a conviction for failure to surrender, albeit that the record will also show that no penalty was imposed.
6.
That is the background. The first issue is whether the appellant had a defence to the charge of failing to surrender. That involves a question of construction.
Section 6(1) of the Bail Act 1976
provides:
"If a person who has been released on bail in criminal proceedings fails without reasonable cause to surrender to custody, he shall be guilty of an offence."
The expression "surrender to custody" is defined in section 2(2) as meaning "surrendering himself into the custody of the court ... at the time and place for the time being appointed for him to do so."
7.
The question of construction is whether those words are to be interpreted as meaning literally 'at the appointed time' or whether there is some flexibility to be implied so that the words should be interpreted as meaning "at or about the appointed time" and, if so, what is the permitted margin.
8.
In the 2007 edition of Archbold the following note appears at paragraph 3-30:
"Although 'surrender to custody' means surrender 'at the time and place for the time being appointed for him to do so' (see s 2(2))..., it appears that the
de minimis
principle should be applied if a defendant is only marginally late. In
R v Gateshead Justice ex parte Usher
[1981] Crim LR 491 DC, it was held that being seven minutes late did not constitute the offence..."
The editorial note adds "sed quaere, if this occurred more than once (let alone deliberately) without excuse."
9.
Mr Rudolf, on behalf of the appellant, relied on that passage in his argument before the judge. We do not have a full transcript of the judgment in
Ex parte Usher
, and the report in the Crim LR is brief. It reads as follows:
"The applicants, with others, were bailed by police to appear on August 15, 1980 before justices for an offence under
section 25 of the Theft Act 1968
. The applicants did not appear at court at the appointed time so warrants were issued. When the applicants arrived they were seven minutes late but the warrants were not withdrawn so they were required to attend the police station to be bailed. On September 19 the justices' clerk put a charge to the applicants for absconding while on bail, contrary to
section 6 of the Bail Act 1976
. The desire to enter a not guilty plea was refused and the proceedings adjourned to October 24. On that day the clerk opened with the charge and then entered the witness box and gave evidence that the applicants had not been present on August 15, he then returned to his seat and conducted legal argument with the applicants. The justices convicted the applicants and they were fined."
10.
On an application to the Division Court for an order of certiorari to quash the justices' order, it was held as follows:
"Held, allowing the applications, that
section 6
made it an offence to fail without reasonable cause to surrender to custody, and that a delay of seven minutes could not be said to amount to such an offence; that section 1 of the Magistrates' Courts Rules 1968 provided which persons may lay an information and that did not include justices' clerks, to do so would mean that the clerk became the prosecutor which was wrong. Accordingly, because of these and other irregularities the convictions would be quashed."
11.
The court seems therefore to have been influenced in that case by a combination of factors. For that reason, and because we do not have a full transcript, we consider, with respect, that it is not a very satisfactorily authority and should not be taken as establishing any general principle.
12.
Mr Rudolf properly drew to our attention this morning a brief report of a decision of this Court in the case of
R v Jordan
(4th October 1988) in which it was held that a defendant who arrived 20 minutes late could not be said to be de minimis in answer to a charge under
section 6 of the Bail Act 1976
.
13.
Looking at the matter as one of statutory construction, in our view, the proper construction of the Act is that surrender to custody must mean, as the Act provides, "at the appointed time and place" and does not admit by any permissible process of statutory interpretation some additional gloss to allow some unidentified further margin.
14.
It was submitted by Mr Rudolf that there is a general principle of the criminal law, which can be described as a de minimis principle, so that where a statute regulates behaviour by reference to a limit whether in time or amount, a minor transgression would afford a defence in law. On this argument, the haulier who uses on the road a lorry which is overladden by only a small amount would have a defence in law to a charge of breach of a traffic regulation governing the maximum permitted loading of vehicles; a person who exceeded the speed limit by only a small amount would have a defence in law to the charge of speeding; a person who drove with only a small amount of excess of alcohol in his blood would have defence in law to a drink driving charge, and so on. Unsurprisingly Mr Rudolf was not able to cite any authority to support such a broad submission, and we reject it. If the proper interpretation of
section 6
of the Bail Act is as we consider it to be, it follows that the mere fact that a defendant is only slightly late cannot afford him a defence.
15.
There was, however, a second stage to the appellant's argument. It does not follow that because a defendant is in breach of
section 6
of the Bail Act, the court must necessarily put the offence to him; the court plainly has a discretion. It was submitted that it is a reviewable discretion and the exercise of that discretion by the judge in this case was Wednesbury unreasonable. The judge gave these reasons for requiring the matter to be put to the appellant and for distinguishing
ex parte Usher
:
"Two points need to be made. First of all, half an hour is considerably longer than seven minutes and, secondly, times have moved on since 1981. There are far more reasons now to apply case management to criminal proceedings. We have criminal procedure rules, the whole atmosphere has changed and for a defendant once granted bail not to turn up on time is a serious matter. He was granted bail on the footing that he would be here. What sentence is justified if he were to plead guilty or to be found guilty is an entirely different matter and I will deal with that in a proper way, but there is a real public interest in putting these matters when defendants do not turn up on time so that, for example, it is on their record so that a future court when deciding whether to grant bail has an opportunity of taking into account the fact that on a previous occasion he was late. That is a relevant circumstance and if it is not on his record, if the matter has not be put to him, it may well be a court in the future would have no knowledge as to his previous bail history."
We are prepared for the sake of argument to accept the possibility that there could be circumstances where a defendant's late arrival at court was so truly marginal that it would be
Wednesbury
unreasonable to pursue it but it would be a rare case. In this case the judge cannot, in our view, possibly be considered to have acted unreasonably, let alone in the
Wednesbury
sense, in the view that he took.
16.
The Practice Direction on failure to surrender to bail
[2004] 1 WLR 589
states as follows:
"The failure of the defendants to comply with the terms of their bail by not surrendering can undermine the administration of justice. It can disrupt proceedings. The resulting delays impact on victims, witnesses and other court users and also waste costs. A defendant's failure to surrender affects not only the case with which he is concerned, but also the courts' ability to administer justice more generally by damaging the confidence of victims, witnesses and the public in effectiveness of the court system and the judiciary. It is, therefore, most important that defendants who are granted bail appreciate the significance of the obligation to surrender to custody in accordance with the terms of their bail and that courts take appropriate action if they fail to do so."
Even if a delay is small it can still cause inconvenience and waste of time. If a culture of lateness is tolerated the results can be cumulative and bad for the administration of justice. If the message given to this appellant had been that being half-an-hour late did not really matter, it would have been the wrong message to him and to other people.
17.
Mr Rudolf has put before us a number of points which were frankly mitigation points. They were factors which no doubt led to the decision not to impose a penalty on him. They did not afford any good reason why the judge could be said to have acted unreasonably in requiring a charge to be put. It was submitted that it was disproportionate and draconian that it should now be on his record that he failed to surrender at the appointed time. Why so? It is a matter of fact he did fail to attend at the appointed time. It was submitted that this could have an unduly harsh effect in the future because another court might refuse him bail. If the message received by defendants is that a failure to answer to their bail on time may have an adverse effect on obtaining bail in future, we cannot see this as a cause for complaint. In our judgment this is an appeal with no merit at all; it is dismissed.
18.
MR RUDOLF: May I address just one point because the judgment has altered significantly, in one sense, the law, because effectively you have overturned
Usher
, or what people thought
Usher
at least meant. I have not discussed this with my learned friend, it has occurred to me now. Would you be prepared to certify to their Lordships' House a question based upon the application of the de minimus principle, bearing in mind, as your Lordship pointed out, how many statutes with limbs and constraints that create offences there are, so that this can be considered, and I have formulated something. It simply says: "Can the de minimus principle afford a defence to the charge of
section 6(1) of the Bail Act 1976
?"
19.
LORD JUSTICE TOULSON: For my part alone, I would be wholly unwilling to certify a question in such terms, it would be to invite their Lordships' House to consider writing an essay on the criminal law.
20.
MR RUDOLF: So be it.
21.
LORD JUSTICE TOULSON: If you wish this Court to consider some more merrily formulated question, we will consider it but I am not encouraging you to do so.
22.
MR RUDOLF: Thank you.
(The Bench Conferred)
23.
LORD JUSTICE TOULSON: We are not giving you encouragement, but we think that the fair and appropriate thing is that you should have an opportunity to consider what you really want to say; it is not easy drafting when on your feet. If you want us to consider certifying some question of importance, it will be for you I think to formulate it in writing, send it to us and we will deal with the matter on paper.
24.
MR RUDOLF: Certainly, thank you. | ```yaml
citation: '[2007] EWCA Crim 2757'
date: '2007-10-15'
judges:
- LORD JUSTICE TOULSON
- MR JUSTICE GIBBS
- HIS HONOUR JUDGE WIDE 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:
200502569 D1
Neutral Citation Number:
[2006] EWCA Crim 1656
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Date:
Friday, 16th June 2006
B E F O R E:
LORD JUSTICE MOSES
MR JUSTICE KEITH
HIS HONOUR JUDGE GORDON
(SITTING AS A JUDGE OF THE COURT OF APPEAL)
- - - - - - -
R E G I N A
-v-
ANTHONY WILLIAM CHAPMAN
- - - - - - -
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 B THOROGOOD
appeared on behalf of the APPELLANT
MR I LEADBETTER
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE MOSES: As long ago as 30th October 2002, at the Crown Court at Truro, this applicant was convicted of one count of indecent assault on a female and of four counts of indecency with a child for which, about one month later, he was sent to prison for four years. The lapse of time is such that he has already served that sentence. But he seeks before us leave as an applicant to extend the time for appeal and to appeal against his conviction. It will be appreciated that this application and appeal is seriously out of time but, before considering whether such permissions as he requires should be given, it is necessary for us to consider the facts as they were alleged against him, his response to them and the merits of the grounds of appeal he seeks to advance.
2.
The facts concern a young girl who was his daughter's stepchild, the daughter of his daughter's husband. She was born on 10th November 1984. She complained in her video evidence that she had been sexually abused from about the age of five. The burden of the evidence that she gave in her video interview related to a period from the time when she was eight, in about 1992, up to about the time some four years later, in 1996 or 1997, but she did say that there had been a earlier occasion when she had been indecently assaulted as it emerged during the course of her evidence during the video interview. It is unnecessary to detail the full account which she gave of the gross indecency which she alleged but it involved masturbation in front of her and of her, at the applicant's instigation, assisting him in masturbating, as she alleged. She also alleged that there had been an earlier occasion when he put his hand inside her knickers and touched her private parts. She had not complained about it at the time. It had happened, she said at first, 30 to 35 times in all, although later she had said it had happened two or three times a month but the occasions had diminished when she became 12 or 13. It had emerged during the course of difficulties she was having, particularly in relation to her boyfriend. She had had a difficult life with her stepmother; her little brother had, she said, at the time of a major proportion of these incidents, been in foster care. The account she gave was, as we have said, not revealed at the time: she complained to nobody until she had mentioned it at the age of 16, in other words much later.
3.
As a result, the applicant was interviewed in November 2001; over ten years since the earlier incident. He was a man of good character who is now 55. He completely denied these offences, as he was to do one year later, when the trial took place. He had lived, as he accepted, next door to where the complainant lived for a period of time. There is now some doubt about precisely how long that was but there was a period when he did live next door. His essential defence was that he would have had only very limited opportunity to be alone with her and thus commit these offences. He was in full-time work in 1989, with very little contact with her at all. He did accept that on a very few occasions he baby-sat for the girl, but that was some years later, for 20 or 30 minutes or less, but there would be members of his family or friends present in his home where most of the offences were alleged to have taken place. He said that the complainant was usually with friends or other members of the family, playing, during that period.
4.
Other witnesses were called to confirm his evidence: his wife, who described their relationship as fantastic and, indeed, said that, most of the time, other people would be in the house, for example their son, who spent a lot of time there. Others also confirmed that account to the jury. There was the clear evidence of good character adduced on his behalf -- he was a man who had never been in trouble before and had a positively good character, a hard-working, caring family man.
5.
The grounds of this appeal present a most unfortunate state of affairs. This applicant has had the benefit of good legal service, both from a solicitor, instructed in 2005, and from his counsel, Mr Thorogood, neither of whom acted for this applicant before. But we describe this application as unfortunate because it turns on what are contended to be serious defects in the fairness of the trial, flowing from inadequacies in the directions that the judge gave to the jury. The first relates to the directions which he ought to have given to the jury in relation to the lapse of time between the allegations made by the complainant and the time when this applicant was interviewed in November 2001, with the trial a year later. The lapse of time in this case, as in so many others, between the facts giving rise to the complaint and the interview of this applicant in November 2001, had considerable impact on his defence. As we have said, his defence was that nothing untoward had taken place; it was a complete denial. He said, as we have pointed out, that he had very little opportunity to be alone with the complainant and had only baby-sat on a few occasions for short periods. The delay clearly prevented any precision in the evidence which he could give, still less which any witness to be called on his behalf could give. Moreover, as is clear from the nature of the cross-examination of the complainant, it was part of the applicant's case that the complainant had been looked after by a stepfather's niece, a girl called Zhalini, between 1992 and 1994. She could not be called to give evidence because she died in 2004. Moreover, in the house where most of the offences were alleged to have taken place, where this applicant lived, there lived also his father. He spent most of the day downstairs and might have given further evidence to support the defence case of lack of opportunity. He died in 1994. These were quite specific disadvantages under which the defence laboured as a result of the delay. Moreover, there was, as in so many other cases like this, a general disadvantage of the defence arising from the inability to adduce evidence of the demeanour of the complainant, perhaps with the defendant or on her own, which might suggest that she did not give the appearance of suffering in the way she described that she was suffering. It also diminished the possibility of identifying features to suggest either exaggeration or fabrication.
6.
These specific and general features of the difficulties which the defence faced cried out for the customary direction to the jury as to the difficulties which the defendant laboured under by reason of the delay. It is of particular importance to appreciate that the customary direction is focused on the difficulties caused by delay to the defendants. The problems caused by the delay, as
R v Percival
teaches (see The Times 20th June 1998 and a transcript of 19th June 1998), are not of equal importance to the prosecution or the defence. The warning, if it is necessary to be given, should be directed to the problems caused to the defence by the delay. That is not to say, as this court has said previously, that such a direction must be given in every case, nor to be prescriptive as to the precise content of the direction. Each case will depend upon its own facts, which will dictate the nature of the direction and, indeed, whether it is necessary to give any direction at all. Nor, as this court has frequently remarked, will a failure to give such a direction necessarily affect the safety of the conviction. This case does not disclose as substantial a delay as in many others, but, for the reasons given both in general and in particular to the facts of this case, such a direction was necessary.
7.
We recall the decision of this court in
R v M
[2000] 1 Cr.App.R 49, important, not least, because of the fact that the judgment was given by the then Vice President, Rose LJ. He pointed out that, usually, it will be desirable to give a clear warning as to the impact of delay on the memory of witnesses and the difficulties which may have resulted to the defence. He pointed out that such direction need not be given in every case. But in cases where such a distinction is necessary, as this court pointed out in
Percival
, it was not merely a question of the adverse effect of delay on both prosecution and defence: it was important to instruct the jury as to the difficulties faced by the defence.
8.
In the instant case, not only did the judge fail to give any warning, he appears positively to have encouraged the jury to disregard the delay. In his summing-up, he said this:
"Of course, all these things were a long time ago. The indictment goes back to as early as 1989. But you will no doubt have noticed that the defendant was interviewed in November last year, so it is very nearly a year since he has been interviewed. I do not know what the delay has been about, members of the jury. Whatever the delay was, it has not been relevant either to the prosecution case or to the defence case, otherwise we would have heard about it, so do no worry yourselves on that account. Whatever the reasons were for the delay, they are not important so far as your decision in this case is concerned."
9.
It appears that the judge was referring to the irrelevant delay since the interview and the trial, but there is a real risk, by virtue of his reference to 1989 in the second sentence of that passage, that the jury may have been misled into thinking he was referring to the delay back in 1989. On their face, those words seem to be saying that the jury should disregard that substantial period of delay, whereas, for the reasons we have given, they should have been instructed as to the significance of that delay and the adverse impact upon the defence.
10.
That error was, in our view, exacerbated by the judge's apparent encouragement to view the complainant's evidence in a favourable light because of the difficulties that she faced by reason of the delay. In a passage shortly before the passage we have read in the judgment, the judge refers to the discrepancy between her evidence in saying that the occasions of abuse had happened between 30 to 35 times and later two or three times a month. He said this:
"The maths are very difficult to get hold of in a situation like this and it may very well be that she is wrong about the number of times and other details. The human memory simply is not capable of that sort of accuracy ... if you are sure that in substance she is accurate about the basis of this whole thing, then you would be entitled to rely on her evidence to convict the defendant on the indictment."
11.
This direction was directly contrary to the learning in
Percival
. The impact of the delay trenches on the fairness of the trial so far as the defendant is concerned and it is that feature of which the jury should be instructed in cases where the issue of delay should form part of the judge's directions.
12.
The judge's errors and failure to follow the guidelines set down by the Judicial Studies Board do not stop there. In relation to character, the applicant, as we said, was 52, with no previous convictions and of good character. The judge said this:
"The last small, not at all small, very important, but short matter of law to mention before I move on the facts is that the defendant is, as we lawyers say, a man of 'good character'; he has no previous convictions, and you have heard witnesses testify to his character as a decent family man. If, of course, you are sure that [N] has told in substance the truth, then that cannot save him, but it is highly relevant in his case for two reasons. He can say and does say through his counsel, 'I am a decent, respectable man. I go into the witness box and take the oath and tell you what happened. You can believe what I say as a decent family man.' In other words, it enhances his credibility as a witness. And, secondly, he can say, obviously, 'I am a decent respectable family man, I would not do what I am being accused of and there is nothing in my life before that suggests that I would.' But it begs the essential question of where the truth lies, and that is for you to discover."
13.
This direction was, in our view, inadequate in two respects. The first, if it stood on its own, might not be fatal. It is important that a judge should instruct the jury that they are required to take into account good character in the defendant's favour in two specific respects. The defect in this summing-up is that it tended to suggest that the relevance was something upon which his counsel relied rather than as something which they must take into account. That, of itself, may not have led to the view that this was defective, but the final sentence in the passage that we have quoted was, in our view, a serious defect. It significantly undermined the effect of what had gone before. In saying, probably meaninglessly, that that passage begs the essential question of where the truth lies, since it begged no such question at all, the judge failed to direct the jury that this evidence of good character was, as many decisions of this court teach, of evidential significance. The essential importance of good character evidence is that the jury should not reach a concluded view as to the truthfulness of a complainant's evidence without taking into account the two important features of the good character of the defendant, both of which are relevant to the assessment of the truthfulness of the complainant's account. In other words, the process by which the jury reached a conclusion as to the truth of the allegations requires, in accordance with proper directions from a judge, the jury to take into account the good character of the defendant. The vice in the directions given by this judge was that it sought to separate those two issues.
14.
There was a further defect, in our view, in the directions given by the judge. As we have indicated, the complainant's evidence was given by a pre-recorded video and she was cross-examined through the video link. The judge said in his summing-up:
"You have also witnessed a young person giving evidence through a video-link. That is entirely routine these days. There is nothing special about this case in that regard."
That is correct, so far as it goes, but it did not follow the specimen directions of the Judicial Studies Board. That is not to say that every judge must slavishly follow the precise words contained in that guidance but the defect in the summing-up in fact given in this case is that no explanation was given to the jury as to why it was necessary to do so, in other words to enable the witness to be more at ease, nor was any warning given that it should not be considered prejudicial to the accused.
15.
There was a further serious defect in the failure of the judge to draw attention to certain comments made by the questioners during the course of the interview with the complainant. As commonly occurs, words were uttered by the interviewers designed to put the witness at rest, to give her peace of mind and to encourage her. Such words were spoken during the course of the interview, for example, the complainant said:
"...I just don't want it to happen to my sisters.
Q. Okay. Nobody deserves to happen to them. You've got the perspective right; he is wrong, not you."
Other similar expressions were uttered by the interviewers. It was, in our view, in this particular case incumbent on the judge, if those matters were to be before the jury -- and we make no criticism of the decision to allow them to go before the jury -- to warn the jury that the apparent approbation of the interviewers was not any indication as to where the truth lay.
16.
All these defects in the summing-up are most unfortunate, but they lead to our conclusion that this applicant did not have a fair trial. What then should be done? There was, as we have said, substantial delay between the trial and the attempt by this applicant to obtain assistance from his current solicitors, but we are persuaded that that was due to the fact that his then counsel gave only oral advice and did not draw attention to any of the defects which in our view were quite apparent in the summing-up. We have had no explanation as to why that was. His counsel then is now a judge. But, in our view, it was incumbent upon his counsel at the time to identify the defects which we have identified: it is not difficult to discover them; they must have been even more apparent to anyone who was listening. We take the view that the substantial delay was due to the inadequacies of the advice that he was given at the time. The applicant is not a sophisticated man, with any experience of criminal procedure. Others, particularly his wife, sought to obtain assistance and eventually they were well served by his current solicitor and counsel. There has been no delay attributable to him since he sought advice. But the consequence has been that he has served his sentence and therefore it would be wholly wrong to order a new trial.
17.
Yet one must not forget that the complainant herself will have suffered as a result. She has never had her accusations tested in accordance with a fair and proper trial. So she too suffers if the appeal is allowed in consequence of the delay.
18.
We are satisfied that the verdicts are unsafe, by reason of the serious defects we have identified in the summing-up. In those circumstances, we shall allow the application, extend time for leave to appeal, give leave to appeal and allow the appeal. It would, as we have said, now be wrong to order a retrial. It is in those circumstances we allow the appeal but we do not do so without making one thing quite clear. Our decision today has no relevance to the truth or otherwise of the allegations. They simply have not been tested in accordance with a fair and proper trial procedure. We require, therefore, an appropriate person to obtain a transcript of this judgment and to tell the complainant precisely what has happened and to explain carefully to her why that has happened. That person should explain the reasons for allowing the appeal and why we do not mean that she has been disbelieved but rather that the procedure by which the conviction resulted was wrong. Equally, we should make clear to this appellant, and his family, that nothing we have said means that we are making any comment one way or the other on the truth of the allegations. They simply have not been properly tested. He was subjected to an unfair trial procedure and it is now too late to test those allegations since he has already served a prison sentence.
19.
We should mention that other grounds were raised. In particular, it was sought to adduce evidence of an expert in memory. We say nothing as to the appropriateness or otherwise of such evidence, had it been necessary to consider it.
20.
For the reasons we have given, the appeal is allowed. | ```yaml
citation: '[2006] EWCA Crim 1656'
date: '2006-06-16'
judges:
- LORD JUSTICE MOSES
- MR JUSTICE KEITH
- HIS HONOUR JUDGE GORDON
``` |
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 2126
No:
201901122/A4 & 201901123/A4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Wednesday 27 November 2019
B e f o r e
:
LORD JUSTICE HOLROYDE
MRS JUSTICE LAMBERT DBE
HER HONOUR JUDGE MUNRO QC
(Sitting as a Judge of the CACD)
R E G I N A
v
PETER CLARKE
MATHEW BOWERS
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.
Miss K Beswick
appeared on behalf of
Clarke
Mr S Nikolich
appeared on behalf of
Bowers
J U D G M E N T
(Approved)
1.
LORD JUSTICE HOLROYDE: Peter Clarke and Mathew Bowers appeal by leave of the single judge against sentences of four years' imprisonment imposed following their guilty pleas to burglary of commercial premises.
2.
On the night of 8 January 2019 the appellants and two others travelled across the Pennines from Oldham to Hebden Bridge in order to carry out what was clearly a well-planned burglary. They travelled in a car which had been taken without the owner's consent. They also had a van which they parked some distance from the scene of the burglary for later use in removing the stolen goods. They were equipped with sledgehammers and crowbars and were wearing masks to conceal their identities. They broke into a Co-Op store and stole cigarettes valued at £12,000. In doing so they caused damage which would cost £5,000 to repair and which prevented the shop from opening for business for a time, with a consequent loss of takings estimated at £11,000. Passers-by saw and heard what was going on: they were not directly threatened by the burglars, but it must have been a disquieting sight and sound.
3.
The police were alerted and, with the aid of the police helicopter, the car was pursued as it left the scene at high speed. Bowers, who was disqualified, was the driver. After about 15 miles the burglars abandoned the car and fled on foot. All were arrested.
4.
Interviewed under caution, the appellants made no comment. However, they both pleaded guilty at early stages of the proceedings in a magistrates' court. They were committed for sentence to the Crown Court. Clarke was charged with the burglary alone. Bowers was charged with the burglary and also with aggravated taking of the vehicle, dangerous driving and driving whilst disqualified.
5.
All four men came before the Crown Court for sentence on 11 February 2019. No pre-sentence reports were thought to be necessary in the appellants’ cases and none are necessary now.
6.
Both the appellants have long criminal records starting when they were teenagers. Clarke, now aged 32, had been sentenced on 28 previous occasions for a total of 55 offences. Offences of dishonesty and driving offences feature prominently in his antecedents, together with a number of offences of criminal damage and repeated breaches of court orders. He first committed burglary of non-dwelling premises in 2004. In 2015 he was sentenced to two years' imprisonment for house burglary. His longest previous sentence of imprisonment (three years eight months) was imposed in 2015 for conspiracy to burgle houses. His most recent appearance had been on 6 March 2018, when he was sentenced to 15 months' imprisonment for two offences of handling stolen goods and driving offences.
7.
Bowers' previous convictions were equally numerous. They included many driving
offences, together with offences of damage, disorder, violence and breaches of court orders. He first burgled non-dwelling premises when he was a juvenile. His longest previous sentence was three-and-a-half years' imprisonment imposed in 2008 for house burglary. He received a short prison sentence for burglary in 2014 and in April 2018 he had been sentenced to 12 weeks' imprisonment for an offence of battery.
8.
The judge observed, justifiably, that all four defendants before him were hardened criminals who understood the score. He indicated that he would treat all four the same and would therefore pass concurrent sentences for all the offences. He also allowed the same credit for the guilty pleas, notwithstanding that they were entered at somewhat different times.
9.
The judge placed the offence of burglary into Category 1 of the relevant definitive sentencing guideline. The offence involved greater harm because significant loss was caused. A number of higher culpability factors identified in the guideline were present: the premises were targeted, there was a significant degree of planning and premeditation, the offenders were equipped for burglary and they were operating as members of a group. The judge said at page 2A of the sentencing remarks:
i.
"So those are all features which put this at the very top of the most serious category of commercial burglary; there is not really any other way around that. That is without taking into account the aggravation of each of you having a very bad record for burglary. So obviously from that point of view that is further aggravation in relation to the sentence; I have to take that into account as well."
10.
The judge accepted that there were some mitigating features, that each of the offenders had some redeeming features and that for each of them there was a possibility of rehabilitation in the future. There was however no alternative to immediate imprisonment for this offence.
11.
The judge concluded that the appropriate sentence after trial for the offence of burglary would have been six years' imprisonment. Giving full credit for the guilty pleas, he therefore sentenced as follows. In Clarke's case, four years' imprisonment for the burglary. In Bowers' case, four years' imprisonment for the burglary, a concurrent sentence of 12 months' imprisonment for the aggravated vehicle taking, a further concurrent sentence of 12 months' imprisonment for the offence of dangerous driving, and licence endorsement but no separate penalty for driving whilst disqualified. Thus the total sentence of imprisonment in Bowers' case was four years and he was ordered to be disqualified from driving for three years and until he passed an extended retest.
12.
Each of the appellants submits that those sentences were manifestly excessive in length.
Miss Beswick for Clarke and Mr Nikolich for Bowers have assisted the court with their well-focused submissions. They realistically accept that the burglary falls into Category 1 of the guideline and that there were a number of aggravating features. They submit however that the offence was not so serious as to justify a sentence at the top of the range before considering the aggravating feature of the appellants' respective previous convictions. It is further suggested that the previous convictions should not in any event have increased the sentence by as much as they did.
13.
We have reflected on these submissions. Under the Sentencing Council's Definitive Guideline, Category 1 has a starting point of two years' custody and a range from one to five years. The guideline provides, as the judge rightly pointed out, that "a case of particular gravity reflected by multiple features of culpability or harm in Step 1 could merit upward adjustment from the starting point before further adjustment for aggravating or mitigating features."
14.
It must however also be noted that five years' custody is the top not only of the category range, but also of the offence range for non-domestic burglary. By
section 125
of the
Coroners and Justice Act 2009
, a sentencer must follow a relevant guideline unless satisfied that it would be contrary to the interests of justice to do so.
15.
For the reasons which the judge identified, this was clearly a serious case of non-domestic burglary. The judge was fully entitled to reflect the presence of multiple features of high culpability by moving upwards from the starting point, before then making a further increase to reflect the serious aggravating feature of the appellant's respective previous convictions. Such limited mitigation as was available could carry only very limited weight. The judge was therefore entitled to impose in each of these cases a sentence which was high in the category range. But with respect to him, we cannot agree that the offence could properly be regarded as lying "at the very top of the most serious category" before considering the previous convictions. Serious though this offence of burglary undoubtedly was, it fell short of that level. The judge did not specifically address in his sentencing remarks the requirement to sentence within the offence range unless it would be contrary to the interests of justice to do so. In our view, it was not properly open to him to say that it would be contrary to the interests of justice to impose a sentence within the offence range.
16.
In our judgment, the appropriate sentence for the burglary after a trial would have been four-and-a-half years. We see no reason to differ from the judge's approach of treating both these appellants the same, and we see no reason to differ from his allowing of full credit for their respective guilty pleas. Thus, in our judgment the appropriate sentence for the offence of burglary should in each case be one of three years' imprisonment.
17.
In relation to Bowers, we see no reason to alter the concurrent sentences for the related offences. The reduction in the total sentence does however necessitate a reduction in the length of the disqualification having regard to the provisions of section 35A and 35B of
the
Road Traffic Offenders Act 1988
and to the decision in
Needham
[2016] EWCA Crim 455
.
18.
We therefore allow these appeals to the following extent. In Clarke's case, we quash the sentence of four years' imprisonment for burglary and substitute a term of three years' imprisonment. In Bowers' case, we quash the sentence of four years' imprisonment for burglary and substitute a sentence of three years' imprisonment. The prison sentences imposed for two other offences remain unaltered, as does the order that there be no separate penalty but licence endorsement in respect of the disqualified driving. However in respect of the offence of aggravated vehicle taking, we quash the order for disqualification for three years and substitute an order that Bowers be disqualified from driving for a period of two-and-a-half years and until an extended retest is passed. The period of disqualification comprises a disqualification of 12 months for the offence itself, with an extension of six months under section 35A and an uplift of 12 months under section 35B.
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 2126'
date: '2019-11-27'
judges:
- LORD JUSTICE HOLROYDE
- MRS JUSTICE LAMBERT DBE
- HER HONOUR JUDGE MUNRO 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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```
=====
{context}
======
| Case No:
201601153 A2
Neutral Citation Number:
[2016] EWCA Crim 1939
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOOD GREEN
HER HONOUR JUDGE GREENBERG QC
20140833
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
16/12/2016
Before :
LORD JUSTICE GROSS
MR JUSTICE KING
and
MR JUSTICE SWEENEY
- - - - - - - - - - - - - - - - - - - - -
Between :
R E G I N A
Appellant
- and -
WANDERSON DA SILVA
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Tania Panagiotopoulou
(instructed by
EBR Attridge LLP Solicitors
) for the
Defendant
The Crown
did not attend and was unrepresented
Hearing date: 18/08/2016
- - - - - - - - - - - - - - - - - - - - -
Judgment
Mr Justice King:
1.
This came before us on the 18
th
of August 2016 as an appeal against sentence limited to the order that the Appellant pay £2,800 prosecution costs, payable at the rate of £200 per month. This costs order was made as part of the sentence passed on the 8
th
of February 2016 in the Crown Court at Wood Green before HHJ Greenberg QC. The remainder of the sentence was a 12 month community order comprising a supervision and 150 hour unpaid work requirement, and a victim surcharge order in the sum of £60.
2.
The costs order was made following the Appellant’s conviction on the 14
th
of January 2016 after trial on one of two counts of voyeurism. He was acquitted on the other count. The trial had taken place over 3 days beginning on the 11
th
of January.
3.
The trial was a retrial. The Appellant had originally stood his trial between the 6
th
and 10th of July 2015 on an indictment containing 4 counts relating to the same alleged victim, a young girl living in the same lodging address as the Appellant, and to events dating back to April/May 2014. Two of the counts alleged voyeurism on separate occasions on respectively the 18
th
of April 2014 and 6
th
of May 2014 when it was alleged that the Appellant had been observing the girl while she was taking a shower. The jury could not reach verdicts on these counts. Hence the retrial. He was however acquitted on the other two counts alleging exposure and sexual assault.
4.
In summary therefore the Appellant had over two trials and as regards the four counts which he had originally faced, been convicted of one but acquitted of the other three.
Legal framework
5.
The power to make the costs order in this case derives from
section 18(1) of the Prosecution of Offences Act 1985
. It arises where the defendant has been convicted of an offence before the Crown Court but not where he has been acquitted.
6.
The power of the court under
section 18(1)
is to ‘make such order as to the costs to be paid by the accused to the prosecutor as it considers just and reasonable’.
7.
In principle the purpose of any prosecution costs order under
section 18
is to compensate the Prosecution for its costs incurred in prosecuting the defendant to conviction. Any such order should not exceed that which the prosecutor has actually and reasonably incurred in that regard.
8.
Where an accused is convicted only on some of several counts on an indictment it would normally be wrong to make him pay the whole of the prosecution costs. See decisions of this court in
R v BBQ Plc
[2005] EWCA Crim 2297
R v Andrew Splain
2010 EWCA Crim 49
. Some allowance ought to be made for the fact he has been acquitted on others although it does not follow that a strictly mathematical approach should be taken. (
BBQ
at paragraph 56 (vi);
Splain
at paragraph 14 and 15). The amount of the allowance is in the discretion of the court taking into account principles of proportionality and fairness (
Splain
at paragraph 16).
The defendant’s means: ability to pay
9.
It is well established that any order for costs should never exceed the sum the offender is able to pay and that which it is reasonable to expect him to pay. [see
Practice Direction (Costs in Criminal Proceedings
)
2013 1 WLR 3255
at paragraph 3.4
Mountain
(1978) 68 Cr App R 41;
Northallerton Magistrates Court ex parte Dove
168 JP 657].
This appeal
10.
The ground of appeal sought to be pursued before us was that this costs order was neither just nor reasonable when taking into account the partial acquittals and what were described as the very limited means of the Appellant.
11.
The difficulty we found ourselves in was that there was no material before us by which we could ascertain precisely what the £2,800 costs which had been applied for by the prosecution and was granted by the Crown Court, was meant to represent. All we had was this short passage in the sentencing remarks:
‘In addition to that, I see no reason why the taxpayer should foot the bill for your trial. There were two trials albeit you were acquitted of some of the charges in the first trial, but not of course of the charge for which you were ultimately found guilty…
The prosecution application for costs is a modest one and therefore the order I make is that you pay £2,800 prosecution costs’.
12.
Miss Pangiotopoulou who drafted the grounds of appeal and who appeared before us could not assist from her own knowledge since although she had been trial counsel, she had not appeared at the sentencing hearing when the Appellant was represented by different counsel, Miss Ramsden. Miss Pangiotopoulou was able to submit, based on the limited information in the Judge’s sentencing remarks, that that sum represented the whole of that which the Prosecution had asked for, but it did not follow that that sum was meant to represent the whole of the prosecution costs including the costs of both the original trial and the retrial.
13.
Nor did we have any assistance from the prosecution as to how this sum of £2,800 had been arrived at since the prosecution did not appear before us and had not put in any written response to the appeal. We did not have sight of any costs schedule or other written application which may have been submitted in support of any oral application made to the Judge, or of any transcript of the terms in which the application was made to her.
14.
Further it was unclear to us what investigation had been undertaken at the sentencing hearing into the means of the Appellant. The Appellant was a Brazilian national who had been in the UK since 2012. There was a presentence report stating that the Appellant had come to the UK as a migrant worker from Portugal where he had lived for the previous 11 years; that since coming here he had worked in a variety of jobs; that he currently worked full time on shift work as a delivery driver with a take home pay of £630 a fortnight depending on how many parcels he could deliver; that his outgoings included paying his own fuel costs and rent on his shared accommodation where he lived alone. In her written grounds Miss Pangiotopoulou had stated that the Appellant ‘worked as a courier earning approximately £200 per week, and who claimed no benefits. His expenses included rent, and the usual living expenses. He was clearly a man of limited means. He had no savings’.
15.
All that could be gleaned from the sentencing remarks as to the Judge’s approach to the Applicant’s means and ability to pay, was that contained in a short section dealing with time to pay in which the Judge rejected an offer made by Miss Ramsden, on instructions, of £100 a month, and made an order for £200 per month payable on the 1
st
of each month. The judge on enquiry had been told by Miss Ramsden that the Appellant was paid twice a month on the 16
th
and 2
nd
of each month.
16.
In these circumstances we did not proceed with the appeal but gave directions designed to fill the gaps in our understanding of what had happened in the court below and what the costs order was meant to represent.
17.
We indicated that we would reconsider and determine this appeal on the papers once the fruits of our directions had been obtained. This we now proceed to do.
The present position
18.
Consequent upon our Directions we have received the following:
i)
A letter from a Specialist Prosecutor at the Crown Prosecution Service dated the 25
th
of August 2016 enclosing a schedule of costs dated 24
th
of August 2016;
ii)
a transcript of the proceedings on the 8
th
of February 2016 when the application for costs was discussed;
iii)
a note from Miss Panagiotopolou dated 29
th
of August 2016.
19.
It is now clear that the figure of £2,800 applied for by the Crown on the 8
th
of February was an estimate of costs and came from a CPS policy guidance document issued to prosecutors labelled ‘Application for costs against convicted defendants’. That guidance sets out a recommended ‘Scales of Costs’ to be applied for after trial against a convicted defendant with the amount to be sought differing according to the complexity of the case. There are three levels of costs headed ‘Lower’; ‘Average’ and ‘Higher’. In the case of a Crown Court ‘Committal for Trial (Trial)’ the amounts indicated are respectively: £2,800; £3,500; and £4,200.
20.
The Costs Schedule now supplied to this Court does not purport to be a breakdown of the prosecution costs actually incurred in this case. It explains the costs applied for by reference to the CPS policy guidance. The Scales of Costs are said to represent the average costs incurred in a wide range of cases and provide a benchmark by which to estimate cost in individual cases. More complex cases should attract the higher range and relatively straight forward cases the lower range. The scale of costs are indicative of single defendant cases. The figures include all staff preparation costs, including advocacy in magistrates’ courts and time spent in the Crown Court by paralegal officers/assistances. The Crown Court scales
include the costs of committal/transfer/sending
proceedings. However they do not include witness expenses, counsel fees or Crown Advocate’s costs or other specific costs.
21.
As to the costs applied for in this case, the Costs Schedule tells us that this was the lower end of the costs that could be sought and that the Crown ‘has not added any additional expense for witness expenses, counsel fees or any other specific costs’. We are told that the total spent in instructing Prosecution Counsel on this case was £5059.20 which related to both trials but that none of this has been claimed from the Appellant. It is not stated how much of this figure related to the retrial.
22.
In summary the Costs Schedule informs this court that the Crown did not request any costs in respect of the first trial; that the costs sought were confined to the costs of the retrial; that the costs claimed were not the whole of the costs incurred but ‘are a contribution to the costs incurred at the lowest scale’.
23.
The prosecution documents now submitted do not expressly address the issue of the acquittal in the retrial and its impact upon the costs which were claimed.
The proceedings on costs before the Crown Court
24.
The transcript of proceedings show that the court below was not addressed in any great detail on the claimed sum of £2,800, save that the Judge was ultimately informed that this related only to the retrial and was the lowest figure which prosecuting counsel would be instructed to ask for. There was no breakdown as to how the sum was reached. No schedule of costs was produced. The CPS Policy Guidance does not appear to have been shown to the court although it was referred to inferentially by Mr Wilmer who appeared for the Crown at the sentencing hearing. He had not been trial prosecuting counsel.
25.
Miss Ramsden when asked by the Judge what she said about the application for costs, replied that the Appellant had been acquitted of the majority of the counts. When the Judge responded that he had been acquitted not of a majority but one of two, Miss Ramsden asked to which trial the application related, the first one or the second one. It appears to have come as a surprise to both the Judge and Mr Wilmer that this was a retrial. Mr Wilmer intervened to say:
‘
If it assists, it’s the lowest - I don’t think I was aware that there was a previous trial. It’s the lowest possible sum on the tariff proposed by those instructing me. I think the next level up is about £3,500...
’
26.
Following clarification from both Miss Ramsden and the Clerk of the Court, that there had been a previous trial in which the Appellant had been acquitted of sexual assault and exposure but that the jury had been ‘hung’ on the two voyeurism counts, the Judge then expressly asked ‘
is the figure of £2,800 just for the single trial?’
to which Mr Wilmer replied:
‘
Yes. I took the very lowest figure. I assumed it was a relatively brief trial. I knew nothing of any prior…trial so it’s...quite literally the lowest amount I would be instructed to ask for’
27.
The above is the totality of what appears to have been placed before the Judge on what the claimed figure of £2,800 represented.
Investigation as to means
28.
There is a short passage in the transcript in which the Judge having been referred to what was outlined in the pre sentence report, observed that it did not say what the Appellant’s disposable income was, to which Miss Ramsden replied that it cost him £50 a week for the petrol which he had to pay for, and a few pounds a day for his own bus journeys and his rent was a £100 a week.
The Note from Miss Pangiotopoulou
29.
In her note of the 29
th
of August Miss Pangiotopoulou maintains her submission that the order for costs was neither just nor reasonable taking into account the circumstances of the Appellant as well as the partial acquittals.
30.
She has supplied the court with an update as to the Appellant’s financial circumstances obtained from the Appellant with the aid of an interpreter on the occasion of the hearing of the 18
th
of August at which the Appellant was present.
31.
We are informed that the Appellant has changed jobs. He is currently working as a kitchen porter earning £7.20 per hour, before tax. He works a minimum of 24 hours a week and a maximum of 48 hours a week. In addition he works as a cleaner, for 10 hours per week, earning £7.20 per hour, before tax. His expenses include rent of £100 per week, £21.20 travel per week to and from work. He spends approximately £50 per week on food. The usual living expenses, such as telephone bills and credit card payments are additional. He has no savings. He will have no income as a kitchen porter for the last 2 weeks of September as the restaurant which employs him will be closed for refurbishment.
Our Conclusions
32.
We consider that this order for costs cannot stand. In our judgment it was neither just nor reasonable. It may have represented only a contribution to the prosecution costs of the retrial but it did not properly reflect the fact of the Appellant’s acquittal on one of the two counts, or the evidence as to his means and ability to pay. In the court below the investigation into these material factors and the consideration of the impact they might have on any order for costs, was not in depth.
33.
In our judgment the proper order to reflect both the fact that the Appellant was convicted on only one of the counts, and the evidence as to his means, would be one of £1,400 to be paid at the rate of £100 per month.
34.
We accordingly allow this appeal to this extent. We quash the order for costs. We substitute an order that the Appellant pay prosecution costs in the sum of £1,400 payable at the rate of £100 per month on the 1
st
of each month. The first payment is to be made on the 1
st
of February 2017. | ```yaml
citation: '[2016] EWCA Crim 1939'
date: '2016-12-16'
judges:
- LORD JUSTICE GROSS
- 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>
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judges: <list of judge full names>
```
=====
{context}
======
| No. 2013/04451/A7
Neutral Citation Number:
[2013] EWCA Crim 2544
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
Tuesday 8 October 2013
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Thomas of Cwmgiedd
)
MR JUSTICE HENRIQUES
and
MR JUSTICE BLAKE
ATTORNEY GENERAL'S REFERENCE No. 53 of 2013
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
- - - - - - - - - - - - - - - -
R E G I N A
- v -
NEIL WILSON
- - - - - - - - - - - - - - - -
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4A
Telephone No: 020 404 1400; Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - -
Miss S Whitehouse
appeared on behalf of the Attorney General
Miss R Blain
(Solicitor Advocate) appeared on behalf of the Offender
- - - - - - - - - - - - - - - -
J U D G M E N T
Tuesday 8 October 2013
THE LORD CHIEF JUSTICE:
1. Her Majesty's Attorney General applies under
section 36 of the Criminal Justice Act 1988
for leave to refer to the court sentences which he considers to be unduly lenient. The sentences were imposed by His Honour Judge Peters QC upon the offender at the Crown Court at Snaresbrook on 5 August 2013, as corrected subsequently on 12 August 2013. We grant leave.
2. The sentences passed were: eight months' imprisonment for one count of sexual activity with a child contrary to
section 9(1) of the Sexual Offences Act 2003
; a consecutive term of four months' imprisonment for making indecent photographs of a child contrary to
section 1(1)(a)
of the
Protection of Children Act 1978
; and concurrent terms of four months' imprisonment for two counts of possessing extreme pornographic images contrary to
section 63(1) of the Criminal Justice and Immigration Act 2008
. All of the sentences were ordered to be suspended for two years. Requirements for supervision and sex offender treatment were made.
The facts
3. As is customary in cases of this kind, the court has been provided with a detailed summary of the facts in the Reference. It is derived in small part (which is to all intents and purposes immaterial) from the account given by AM, the victim, in a video interview that was conducted the day after the assault. Thereafter, AM refused to assist the police. The substance of the account set out, and the basis therefore upon which the sentencing court and we consider this matter, is derived in large part from the interviews with the offender and from what he said (which was substantially the same) to the author of the pre-sentence report. The case proceeded substantially on the basis of his account. That is a fact relied upon by Miss Blain who has represented the offender in this court.
4. Miss Blain has submitted that we should not take into account three matters set out in the Reference. It seems to us that she is right in her contention. They are not material; they are matters that were not before the sentencing court. When we say "before the sentencing court", we mean in the papers - either in the interview of the offender, in what he told the author of the pre-sentence report, or set out in other uncontested documentation that was before the sentencing court. The fact that counsel who appeared for the Crown Prosecution Service does not expressly mention a fact to the judge is not generally - and certainly not in this case - material. It is the experience of this court that appeals of this kind often arise because matters have not been thoroughly dealt with in a way to be expected of those who appear on behalf of the Crown at the Crown Court. It would be unjust if we could not take into account anything that was before the judge, which was not, in fact, in dispute. The overriding question is whether there is anything which would cause prejudice to the offender. In this case there is not. The account we shall set out is, therefore, uncontested. It was the offender's account, but it is much fuller than that which counsel had put before the judge.
5. The offender is 40 years of age. He was born on 21 October 1972. The victim was, at the relevant time in March 2012, 13 years of age. On Tuesday 6 March 2012 she played truant from school. She went to the town centre at Romford, the town where the offender was then living. She began to ask passers-by for cigarettes. One of those she approached was the offender. He told her that he did not smoke. He said, however, that he would buy her some cigarettes. He went to a shop and returned with cigarettes. She then told him that she was 16 years of age and asked if she could use his home 'phone to contact a family member. He agreed and took her back to his flat in Romford. Although the events that then occurred were charged as the first count on the indictment, that count was not proceeded with. However, as the account of what happened was the offender's own account, and as it is material to an overall assessment of the second visit in relation to which the charge was brought and which he admitted, it is important that we set out what happened.
6. The offender's account was that he and the victim chatted. They then watched television. He hugged the victim to comfort her. He said that she then kissed his neck and placed her hands on his trousers over his penis. He rejected her advances. He did not ask her to leave, but gave her his mobile 'phone number in case she needed someone to talk to.
7. In the days that followed, the offender and the victim exchanged a number of text messages. He told the author of the pre-sentence report that she indicated she was younger than 16 and that he sent material of a sexual nature in the text messages. He explained to the author of the pre-sentence report that he did so because he tried "to scare her with sex". Eventually the offender told the victim that he felt guilty and that they should not continue to contact each other. However, on 12 March the victim posted a note through the offender's door. She also sent him a text message. Contact resumed and further text messages were exchanged.
8. All of that background is highly material to an examination of what happened on the day to which the charge which the offender faced related. That day was Tuesday 20 March. The victim again went to the offender's flat in Romford. When he let her in, she was in school uniform. She asked if she could change. She re-appeared wearing nothing but a T-shirt. The offender says that he told her to put her clothes back on, but that she began to kiss and touch him. She then undid his trousers and masturbated his penis. He subsequently told the police that he had been angry and had told her to stop. She turned round and attempted to lower herself onto his penis. At that point there was contact between his penis and her vagina. He then pushed her away. The victim left. The next day she told a friend what had happened and her friend advised her to tell the police.
9. In consequence, the offender was arrested on 23 March 2012. His computer was seized. On analysis it was found to contain indecent images of children. It is important to note that the images had been viewed between 16 March 2012 and 23 March 2012, that is to say, on dates immediately surrounding the offence we have just described in relation to the victim, AM. He was charged in respect of eight of the images found: two were at Level 1, two were at Level 2 and four were at Level 3. Those at Level 3 included two images of very young female children holding the erect penis of an adult male. There were also found on his computer eleven extreme pornographic images portraying in an explicit and realistic way a person performing an act of intercourse or oral sex with an animal. They included photographs of a naked adult female being penetrated by a dog's penis, and a woman performing oral sex on a horse's penis. The offender was charged with possession of those. Other matters were found, but not charged. We do not take those into account.
10. The offender was bailed. He then moved from Romford to York. On 10 October 2012 the police went to his home in York, having obtained a search warrant. On his computer there were found further extreme pornographic images portraying in an explicit and realistic way sexual intercourse and oral sex between humans and dogs and horses. He was subsequently charged with possession of these extreme images. No charges were brought in respect of other material found on his computer. Again, we do not take that into account.
11. On 24 June 2013 there was a pre-trial hearing at the Crown Court at Snaresbrook in respect of the offences relating to Romford. On that occasion the offender pleaded guilty to the offence of sexual activity with AM on 20 March 2012. He was released on bail. He was warned by the judge that the sexual touching of a child of that age almost invariably involved immediate imprisonment. It was decided that the matter charged in relation to what had happened on the previous occasion would not be proceeded with. A sentencing hearing was fixed for 5 August 2013, when the offender admitted the offences relating to the obscene images found in York. Those matters were transferred to Snaresbrook for sentence. In the meantime, the pre-sentence report to which we have referred was prepared.
12. At the hearing before Judge Peters, the offender pleaded guilty to the offences relating to the images found on his computer in Romford. In the course of the Crown's opening of the facts which we have set out, the judge enquired as to how old the victim would have looked in March 2012. The police officer's view was that she would have looked 14 or 15. When counsel started to describe the meeting on 20 March during which the offence of sexual activity took place, there was the following exchange:
"COUNSEL: They agreed to meet, and he texted back.
JUDGE PETERS: I am sorry to keep interrupting but when you say 'agreed to meet', this is a very much a 50-50 consensual meeting?
COUNSEL: Yes, your Honour. Very much so, and she is undoubtedly, it is fair to say, very sexually experienced, and one hesitates to use the word, but it is a word that has been used in other cases, I think the officer would agree that she may well be what is described as 'predatory' in respect of her activities.
JUDGE PETERS: Yes. Well, as I say, I need to know all these things. She said she was nearly 16.
COUNSEL: Yes, your Honour.
JUDGE PETERS: Whatever that means.
COUNSEL: Initially she said that she was 16 and then she said, 'I am nearly 16'. I was 16 a couple of months ago. I am nearly 16.
THE JUDGE: All right. Thank you."
13. After setting out some the facts, counsel for the Crown drew to the judge's attention the guideline in respect of the offence of sexual activity with a child under 13. We shall refer to that in a moment.
14. In her mitigation Miss Blain relied on the "candour" of the offender's admissions and in particular upon the description given by the Crown of the conduct of the victim. In addition, the judge had before him the pre-sentence report which set out the offender's background and his employment history. He also had details of two previous offences; those are entirely irrelevant.
15. The judge proceeded to pass sentence. He told the offender that he had come as close to going to prison as was imaginable. He said that he took into account the appearance of the victim as described by the police officer. He went on to say that, by his plea, the offender accepted that he knew the victim was under 16 and that allowing her to visit his home was something on which the court had to clamp down. In normal circumstances that would have involved, "a term of significant imprisonment". He added:
"These are prevalent offences and young girls need the protection of the courts by such sentences."
He then added:
"On these facts, the girl involved, I am told, to use the expression, was 'predatory' and was seriously egging you on. That, of course, is no defence when dealing with children, but in all the circumstances I am prepared to impose upon you a suspended prison sentence."
16. In respect of the offences of possession of indecent images and extreme pornography, the judge said that anyone who sought gratification from indecent images of adults with children and extreme pornography needed treatment. Although in normal circumstances a prison sentence would be appropriate, as there was no evidence that the offender had shown any of the items to anyone or exchanged them with anyone, a sentence of immediate imprisonment was unnecessary. He concluded that what was appropriate was treatment on a sex offender's course which would take three years. He therefore imposed a Community Service Order for three years with a condition of undergoing a sex offender's programme concurrent with the suspended sentence of imprisonment.
17. It is well-known that it is the duty of counsel for the Crown to draw to the attention of a judge the extent of the relevant sentencing powers. It appears that at the time neither the judge nor counsel appreciated that the judge had no power to impose the sentence he did, as it is not possible to pass a two year suspended sentence concurrently with a three year community order. When this was drawn to his attention, the judge corrected it at the subsequent hearing when he imposed a suspended term of four months' imprisonment, to run consecutively to the eight month suspended sentence. In the result, therefore, the offender received a sentence of twelve months' imprisonment suspended for two years.
18. Miss Whitehouse, on behalf of Her Majesty's Attorney General, contends that the sentences passed, and in particular that in respect of the offence of sexual activity with a child, were unduly lenient. She submits that the judge adopted an approach that was wrong in principle. Far from it being any mitigation that, on the offender's account, the victim had initiated what happened, that was, in the Attorney General's submission, an aggravating not a mitigating factor. Other criticisms are made of the judge's approach to which we will refer in a moment.
19. On this issue the Attorney General is unarguably right. It has been clear since at least the
Offences Against the Person Act 1861
, and subsequent nineteenth century legislation, that the purpose of Parliament in passing legislation to make it a crime punishable with imprisonment to have sexual relations with those under 16 was to protect those under 16. Indeed the Criminal Law Amendments Act 1885 makes it expressly clear that that was the purpose of the legislation. That can be seen from the preamble to the Act and was made clear by this court in
R v Tyrrell
[1894] 1 QB 710
.
20. That long-standing principle is well-known. The reduction of punishment on the basis that the person who needed protection encouraged the commission of an offence is therefore simply wrong. We agree with the submission of the Attorney General that an underage person who encourages sexual relations with her needs more protection, not less. Accepting that as the basis for sentencing for the reasons we have explained, the fact that the offender took advantage of what he asserted the victim did aggravated the offence. The Attorney General is therefore right to say that the victim's vulnerability was an aggravating rather than a mitigating feature.
21. It is contended by Miss Blain on behalf of the offender that the Crown cannot now assert something different to that which they asserted in the Crown Court.
22.
It is, first, important to clarify what happened. It is clear from the transcript from which we have quoted what counsel told the judge. However, we are told by Miss Whitehouse, on behalf of the Attorney General, that the word "predatory" to describe the victim was not used by either the police in any document provided to the CPS, or by the CPS in any instructions to counsel. The word "predator" had been used only in relation to the offender. How counsel, who is not present today, came to make the remark he did is not a matter into which we can enquire. In any event, it is the duty of the court to sentence on the facts before it. Counsel is there to assist. The fact that counsel makes a fundamental error in introducing a factor that is thought to be relevant cannot in any way affect the power of this court to determine the correct sentence. This is a case where there is no dispute as to what actually happened. It is simply a case where the judge and counsel were in error in thinking it was relevant as a mitigating factor that the sexual activity had been initiated by the victim. For the reasons we have already given, that was wrong.
23. The Attorney General draws attention to other aggravating features. First, the offender must have known that the victim was under 16. By his plea he accepted that. The fact that she may have looked older than her age is irrelevant. Secondly, he must have appreciated her vulnerability. She was in school uniform; she had absconded from school; and she was asking for cigarettes on the street in Romford. Thirdly, the offender preyed on her vulnerability. He encouraged her by buying her cigarettes. He invited her back to his flat. He gave her his mobile 'phone number. On the first occasion she was at the flat, she touched his penis over his clothing. After that, he maintained contact with her. He sent her sexually explicit text messages. Next, there was a very significant age gap between the offender and the victim. Finally, he was in possession of indecent images of children which had been viewed at a time close to the offence. It is plain that the offender had a sexual interest in children.
24. As against all of that, the only mitigating feature is his plea of guilty.
25. The sentencing guidelines applicable to this case are those issued by the Sentencing Guidelines Council. The starting point, as defined in those guidelines, is two years with a sentencing range of between one and four years' custody.
26. It is clear that the judge appreciated that for an offence of sexual touching of this kind a sentence of immediate custody is the sentence that should ordinarily be imposed. There may of course be circumstances where that may not be the just and right sentence. However, in this case, there were no circumstances whatsoever that justified a departure from the principle that a custodial sentence was appropriate. An immediate sentence of imprisonment should therefore have been imposed.
27. We have therefore unhesitatingly reached the conclusion that the sentence was plainly, and without doubt, unduly lenient.
28. In arriving at the sentence which should have been imposed for the offence of sexual activity with a child, taking into account all matters, we give full credit for the offender's guilty plea tendered at the first opportunity. We also take into account the fact that, since the date of sentence, he has attended regularly and properly a number of weekly appointments at the Probation Service. They advise that he is motivated to address his offending behaviour. As we observed to Miss Blain, however, the report is not entirely positive as it is apparent that the offender expresses both resentment and sympathy towards the victim, but still maintains that the sexual activity was initiated by her.
29. We are not in this case dealing with a sentencing guideline. We are reviewing the sentence and taking into account all the circumstances, including the other offences which we have set out, and what has happened since. Taking all of these factors into account, together with the mitigating and aggravating features to which we have referred, we shall substitute for the sentences imposed, a sentence of two years' immediate custody. That sentence will be for the offence of sexual activity with a child under the age of 13. The other sentences of four months' imprisonment imposed by the judge will remain unaltered in their length, but they will be served concurrently. Accordingly, the overall sentence is one of two years' imprisonment.
30. The offender must surrender to custody at Fulford Road Police Station, York by 6pm today. | ```yaml
citation: '[2013] EWCA Crim 2544'
date: '2013-10-08'
judges:
- MR JUSTICE HENRIQUES
- MR JUSTICE BLAKE
- 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}
======
| No:
200805449 A1
Neutral Citation Number:
[2009] EWCA Crim 266
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Friday, 30th January 2009
B e f o r e
:
LORD JUSTICE PILL
MR JUSTICE DAVID CLARKE
MR JUSTICE MADDISON
- - - - - - - - - - - - - -
R E G I N A
v
SHAUN DAVID KING
- - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - -
Mr J Janes
appeared on behalf of the
Appellant
- - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE MADDISON: On 24th April 2008, at the Crown Court at Derby, the appellant Shaun David King, who was 21 years of age, pleaded guilty to three offences and on 12th September 2008, at the Crown Court in Nottingham, he was sentenced by HHJ Hamilton as follows: for an offence of robbery there was a sentence of five years' imprisonment; for an offence of common assault, a sentence of four months to operate concurrently; and for an offence of possessing a class C drug, namely cannabis, a sentence of one month's imprisonment, again to operate concurrently. There was a direction that the days that the appellant had spent remanded in custody should count towards the sentence. Against those sentences he appeals by leave of the Single Judge.
2.
He was co-accused before the court with a man called Haroon Ahmed, now 20, who pleaded guilty to the same charge of robbery and was sentenced to Detention for Public Protection with a specified period of two and-a-half years. There were features in relation to the co-accused which, from the papers available to us, seem amply to have justified the judge's decision to impose an indeterminate sentence in his case.
3.
The relevant facts were quite straightforward. At about 6.30 on the evening of 26th January 2008, the manager of a service station in Derby was on duty on his own when the appellant and Ahmed entered the shop with their hoods up and their coats pulled up in such a way as to obscure their faces save for the area immediately surrounding the eyes. They did not say anything but the appellant jumped over the counter towards the manager and held a large knife in close proximity to the manager's face. He then pulled the manager's head down onto the counter and pushed the knife very close to him. He said, "Open the till or I'll cut your neck. I'll stab you". The judge, who had seen the video, as have we, described the knife as a wicked looking weapon. The manager, understandably in our view, was very frightened and opened the till.
4.
The appellant took between £400 and £500 from the till and Ahmed held out the plastic bag into which the money was placed. Ahmed then told the appellant to take some cigarettes as well, so the appellant dragged the manager to the cigarette display and told him to put cigarettes into the bag. About 40 packets were placed into the bag before the two men left. The appellant grabbed two phones that were on the counter as they did so.
5.
The manager contacted the police and officers attended and traced the appellant and Ahmed to a nearby address, at which they were arrested. When the officer told the appellant he was under arrest, the appellant punched the officer in the face and attempted to head-butt him. A struggle ensued before the appellant was restrained. On arrival at the police station, a small amount of cannabis resin was found in his possession. He prepared a statement denying any knowledge of the robbery.
6.
He came before the court with seven previous court appearances, beginning in 2005, for offences including burglary (both on one occasion of a dwelling and on another occasion of a non-dwelling) and affray. His only previous custodial sentence was 50 days detention in a Young Offender Institution imposed in 2007 for breach of a community order originally made for the offence of affray. In addition, he had been dealt with by reprimand or warning for two offences of assault occasioning actual bodily harm. The judge had before him a pre-sentence report recording that the appellant had expressed remorse but expressing the view that the appellant minimised his responsibility by claiming unrealistically that the offence involved no significant planning and that the knife had been found by coincidence in a street only a very short time before the robbery. The appellant told the probation officer that he had been under the influence of drink and drugs at the time, as indeed he had been at the time of some of his previous offences. The report recognised the inevitability of a custodial sentence and took the view that there was a moderate to high risk of re-offending, particularly if the appellant was under the influence of cannabis and alcohol.
7.
A psychiatric report presented to the judge stated that the appellant was not suffering from any mental illness and expressed the view that, if he were able to tackle his misuse of drugs and alcohol, the risk of further offending would only be low. Finally, the judge had a letter from the appellant referring, amongst other things, to his alcohol and cannabis problems, expressing remorse for what he had done and, in our view, misrepresenting himself as being not a violent person.
8.
Passing sentence, the judge took account of the reports and the letter. He described this as a planned robbery. Ahmed had instigated it and had given the knife to the appellant, who then went over the counter and held the knife to the unfortunate assistant. That, said the judge, must have been a terrifying experience. The knife had been held at close proximity to his face and he could have been seriously injured. The judge referred to the guidelines of the Sentencing Guidelines Council, to which we will return later. He said that there were aggravating features, in the sense that the offence was clearly pre-planned, and he referred also to the vulnerability of the victim, the disguises contrived by the appellants and the fact that the offence was committed at night in the hope of obtaining a substantial reward. The mitigating features, said the judge, were the plea of guilty, the appellant's age and the signs of remorse. Having identified those aggravating and mitigating features, the judge passed the sentence to which we have referred.
9.
On the appellant's behalf, it is submitted by Mr Janes that the judge must have either adopted too high a starting point for the purposes of sentencing and/or failed to give the appellant sufficient credit for his plea of guilty. He observes that the Sentencing Guidelines Council suggest a range the high point of which is seven years for offending of this kind with a starting point of four years for an offender of previous good character. It is not clear from the judge's sentencing remarks exactly what discount he allowed to reflect the plea of guilty and it would have been helpful had he done so, but we are prepared to assume, for present purposes, that the discount adopted was one of one third and that it was proper to adopt such a discount.
10.
We have carefully considered the submissions made on the appellant's behalf but we disagree with them for various different reasons. To begin with, as we have said, the starting point of four years in the guideline is based on a first time offender, which this appellant was certainly not. In addition, the degree of force, the nature of the threats, the degree of fear experienced by the victim and the value of the property taken make this a serious offence of its kind. In addition to that, most of the aggravating features identified on page 11 of the relevant definitive guideline were present in this case. More than one offender was involved. The appellant had adopted a dominant role in leaping over the counter and holding the knife in the way we have described. The victim was restrained to some degree. The offence was clearly pre-planned. The offenders were wearing a disguise. The offence was committed at night. A vulnerable victim was targeted in the sense that he was in the premises on his own and, as the judge said, the appellant and his co-accused clearly had a substantial gain in mind.
11.
The sentence of five years, notwithstanding the multiplicity of aggravating features, could be described as severe but in our judgment it could not be described as manifestly excessive, not least, we would add, at a time of intense public concern about the carrying and use of knives. For those reasons, the appeal, attractively though it has been presented, is dismissed.
12.
LORD JUSTICE PILL: Thank you.
13.
MR JANES: Thank you, my Lord.
14.
MR JUSTICE MADDISON: I should add, and I apologise for not having done so in the course of my main judgment, that the appellant was slightly under 21 at the time that he was convicted. The judge expressed his sentence as a sentence of imprisonment. Because of the appellant's age, the sentence should have been expressed as a sentence of detention in a Young Offender Institution. Simply to correct that irregularity, we allow the appeal to the extent that we substitute a sentence of detention in a Young Offender Institution of five years for that expressed by the judge. | ```yaml
citation: '[2009] EWCA Crim 266'
date: '2009-01-30'
judges:
- LORD JUSTICE PILL
- MR JUSTICE DAVID CLARKE
- MR JUSTICE MADDISON
``` |
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:
201903124/B4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2020] EWCA Crim 1288
Royal Courts of Justice
Strand
London, WC2A 2LL
Wednesday 17 June 2020
B e f o r e:
LADY JUSTICE CARR DBE
MR JUSTICE WILLIAM DAVIS
THE RECORDER OF SOUTHWARK
HER HONOUR JUDGE KARU
(Sitting as a Judge of the CACD)
R E G I N A
v
DWAYNE BATES
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 I Mullarkey
appeared on behalf of the
Appellant
(via video link)
Mr P Morley
appeared on behalf of the
Crown
(via video link)
J U D G M E N T
LADY JUSTICE CARR:
Introduction
1.
On 25 July 2019 in Teesside Crown Court before His Honour Judge Armstrong (“the Judge”), the appellant, now 30 years old, was convicted after trial of theft, contrary to section 1(1) of the Theft Act 1968 (count 2) and handling stolen goods, contrary to section 22(1) of the Theft Act 1968 (count 3). He was acquitted of burglary, contrary to section 9(1)(b) of the Theft Act 1968 (count 1), a count to which the appellant's co-accused Dylan Turner had pleaded guilty in the Youth Court. The applicant was sentenced on 28 October 2019 to eight months' imprisonment on each count, such sentences to run concurrently to each other. On the same day he was also sentenced to 32 months' imprisonment to run consecutively to the overall term of eight months for further offences which are not the subject of this appeal. This is his appeal against conviction on counts 2 and 3 for which leave has previously been granted.
The facts
2.
On 16 April 2018, Sean Scott left his Toyota Hilux vehicle ("the Toyota") parked outside his home address in Verbena Drive, Billingham. When he woke up the following morning he discovered that he had been burgled. Car keys, a wallet, an iPad and other items had been taken from within his home and the Toyota was also missing. He reported the incident to the police.
3.
The Toyota was fitted with a tracking device. In addition police investigation revealed that the Toyota had triggered one of the Automatic Number Plate Recognition cameras as it travelled towards Hartlepool in the early hours of the morning on 17 April. The Toyota was followed closely by a second vehicle, an Audi A4 registered to the appellant's girlfriend, Demi Gales.
4.
The police subsequently attended the home of the appellant's stepmother to find the stolen Toyota parked on the driveway and one of the items stolen during the burglary inside the property. The appellant was inside the address with Dylan Turner and another male. All three were arrested on suspicion of burglary. Police officers attended the home of Miss Gales and searched her vehicle. It contained various items which had been stolen during the burglary.
The indictment and prosecution case
5.
Count 1 averred that the appellant "between the 15th day of April 2018 and the 17th day of April 2018 together with Dylan Turner having entered a building ... as a trespasser, stole therein car keys, wallet, an iPad and a hoover." Count 2 averred that the appellant "between the 15th day of April 2018 and the 17th day of April 2018 together with Dylan Turner stole a Toyota Hilux motor vehicle ... belonging to Sean Scott." Count 3 averred that "on the 17th day of April 2018 dishonestly undertook or assisted in the retention, removal, disposal or realisation of stolen goods namely a Toyota Hilux motor vehicle... a set of keys, a wallet, a hoover, an I-pad, a bag of rugby balls, clothing and a music CD, belonging to Sean Scott, by or for the benefit of another or dishonestly arranged so to do, knowing or believing the same to be stolen goods."
6.
The prosecution put its case in accordance with its opening note on the basis that the
appellant was party to the burglary offence and that:
i.
"…after burgling the address the appellant and his accomplice then also took a Toyota which was parked on the driveway. The taking of the car is not a burglary but a separate offence of theft, so that is why you have an indictment with the two separate offences upon it."
7.
The prosecution put its case in respect of count 3 on the basis that:
i.
"[t]he final count is handling stolen goods. It is an alternative to the burglary. So if you are not sure the defendant took part in the burglary, but you were left sure that he was involved in assisting with the handling of the stolen items after the burglary, then you would find him guilty of count 3."
The defence case
8.
The defence case was that the prosecution had not established that the appellant had committed the offences as alleged or at all. The appellant did not give evidence at trial. In his defence statement it was submitted that he had been in the company of others, including Dylan Turner, on the evening of 16 April 2018. He had consumed a large quantity of illicit substances and could recall that the group had gone out for a drive in his girlfriend's car. He could recall returning to his stepmother's address and discovering that the others had taken various items and the Toyota belonging to Mr Scott.
The summing-up
9.
The Judge provided written directions to the jury which made clear that counts 1 and 3 were alternative counts and that the defendant could not be convicted of both. The written legal directions did not provide such a direction in respect of count 2.
10.
In the Judge's written route to verdict on count 3, which he also read out to the jury, the Judge directed as follows:
i.
"Route to verdict - Count 3. ii.
If you find the defendant guilty of Count 1 you should find him not guilty of Count 3. If you are not sure the defendant is guilty of Count 1 and you find him not guilty of the burglary, you may go on to consider the offence of handling stolen goods in Count 3 as an alternative."
11.
All this reflected the manner in which the prosecution case had been presented.
12.
The Judge also directed the jury in respect of this aspect of the case during his oral summing-up. At pages 3D to E he stated:
i.
"Well what is it the prosecution set out to prove in this case? You have got a copy of the indictment and you know that it has three counts on the indictment, and the first thing to note is that Counts 1 and 3 are alternative counts. So on Count 1 the defendant is charged with burglary. On Count 3 the defendant is charged with handling stolen goods. The important point here is that the defendant cannot be found guilty of both counts because they are alternative charges, okay, so you may wish to consider Count 1 first, and if your verdict on Count 1 is guilty then your verdict on Count 3 must be not guilty. I will explain why when we come to the definitions of the offences, but they are alternatives. If you want to you can consider Count 3 first. If your verdict on Count 3
is guilty, your verdict on Count 1 must be not guilty."
13.
At page 7D to F the Judge stated:
i.
"I was explaining how Counts 1 and 3 are alternatives, okay, you cannot convict of both, and saying the way to approach it is to take Count 1 first. The prosecution case is that the defendant is guilty of the burglary, that is what they say, and Count 3, the alternative of handing stolen goods is a sort of back stop ... It is a fall back, if you are not sure the defendant is guilty of Count 1 you can go on to consider Count 3...
ii.
... Now, because there are three counts on the indictment, there is Count 2 as well, the charge of theft, and you have got to return separate verdicts on each of the three counts, so you have to consider the evidence against and for the defendant on each count separately. So your verdicts do not have to be the same, it all depends on your view of the facts."
14.
At page 8A the Judge set out the rationale for count 2:
i.
"Now the reason why there is a separate count for theft is that the car, the Toyota Hilux, was outside the building, and so when the Toyota Hilux was taken then that was not burglary, that was theft. So the keys were inside, that is part of the burglary, but then using the keys the Toyota Hilux was stolen from the drive outside, and theft is defined, it is stealing or theft, being the same thing, a person steals or commits theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. So again, there is no dispute in this case that theft was committed."
15.
Finally, at page 9E to F the Judge stated that counts 1 and 2 both involved joint offending:
i.
"Well the prosecution put this as a joint offence, so they say that the offences of burglary in Count 1, and the theft in Count 2, were committed jointly with someone called Dylan Turner, that is that the two of them were in it together, and where two or more persons commit an offence, it is not necessary for the prosecution to prove the precise role of each participant, it is sufficient if you are sure that the defendant either committed the offence himself or intending that a crime be committed he assists or encourages or causes it to be committed by somebody else, in which case the defendant is guilty of the crime even if someone else actually carries it out."
Grounds of appeal
16.
For the appellant, Mr Mullarkey submits that count 3 was, on the facts, an alternative to count 2 as it was to count 1 and the jury ought to have been directed accordingly. The omission of such a direction is said to have resulted in verdicts which ought not properly on the evidence and in accordance with the principles elucidated in
R v Shelton
(1986) 83 Cr App R 379 to have been returned by the jury. It was open to the jury to convict the appellant of one or other offence as reflected in counts 2 and 3, but not of both as particularised. The offences should have been treated as true alternatives and mutually exclusive. Moreover, the jury's verdicts are impossible to reconcile with the way in which the prosecution advanced its case since the vehicle was stolen from outside the burgled premises by those directly involved in the burglary, the Judge having described the prosecution case as those being "joint" offences. In all the circumstances, it is submitted that the jury's verdicts in respect of counts 2 and 3 are unsafe. Since the basis upon which the jury convicted the appellant of counts 2 and 3 cannot be established, both verdicts ought to be quashed.
Grounds of opposition
17.
For the respondent, Mr Morley submits that although the offences of theft and handling are usually treated as mutually exclusive alternative counts, a person can in law be guilty of the theft and the handling of the same goods. The jury was properly directed as to the elements of the offences, the appellant's convictions on counts 2 and 3 can be seen as a "mere technicality" as in the case of
R v Dolan
(1975) 62 Cr App R 36 at 38.
Concurrent sentences of imprisonment were subsequently imposed. It cannot therefore be said that the appellant's convictions are unsafe.
Analysis
18.
In deference to the arguments presented to us we set out briefly the law. Section 1 of the Theft Act 1968 provides:
i.
"(1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it..."
19.
Section 3 of the Theft Act 1968 defines "appropriates":
i.
"(1) Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later
assumption of a right to it by keeping or dealing with it as owner."
20.
Section 22 of the Theft Act 1968 provides:
i.
"(1) A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so."
21.
The offence of handling stolen goods thus arises separately and subsequently to the offence of theft (since the handling must be of goods which have already been stolen, but the handling must occur otherwise than in the course of the theft). As a matter of law, a person can steal and dishonestly handle the same goods if the evidence warrants such a conclusion. If the handling of the goods occurred only in course of the theft he cannot be found guilty of handling: see
R v Dolan
(supra) at [39]. But as Scarman LJ put it, it is "perfectly possible" for a person to be guilty of stealing and receiving the same goods.
22.
In
R v Shelton
(supra) Lawton LJ provided guidance for the setting of indictments and verdicts when dealing with alternative counts of theft and handling, including the following:
23.
The long-established practice of charging theft and handling as alternatives should continue whenever there is a real possibility, not a fanciful one, that at trial the evidence might support one rather than the other;
24.
A jury should be told that a handler can be a thief, but he cannot be convicted of being both a thief and a handler.
25.
Archbold (at 21-238 and following) comments:
i.
"Lawton LJ's third point, that a jury should be told that a handler can be a thief, but that he cannot be convicted of being both a thief and a handler, refers both to the alternative nature of the counts and to the legal relationship between the offence.
ii.
Because of the definition of the offence of theft and, in particular, the definition of 'appropriates' in section 3, almost everyone who commits the offence of handling stolen goods contrary to section 22(1) of the Act will also commit the offence of theft. On the other hand, it will by no means be the case that every thief will also be guilty of handling. As a matter of law, however, it was said in
R v Dolan
... that a person may steal and dishonestly handle the same goods.
iii.
In practice, the two offences are treated as alternatives, robbery, burglary or theft on the one hand and handling on the other. Where there are two such counts in the indictment, the prosecution invariably put the case on the basis that the jury should convict of one or other offence, but not of both. Where the prosecution so put their case, the Court of Appeal said in
Dolan
and again in
R v Smythe
(1981) 72 Cr App R 8
that the offences should be regarded as true alternatives and mutually exclusive."
26.
Having set out the law, we do not in fact consider that the result on this appeal turns on any detailed legal analysis, but rather on the facts.
27.
Here, the prosecution did not put its case on the basis that count 3 was an alternative to count 2, only as an alternative to count 1. It was entitled to do so both as a matter of law and on the facts. The applicant's handling of the stolen goods did not occur only in the course of the theft and was not limited to the Toyota, as count 2 was. It included all of the items taken from the house, as well as the Toyota.
28.
This approach was in no way inconsistent with the comments of Lawton LJ in
Shelton
(supra). Count 3 was included as an alternative count and an alternative count only. As the Judge clearly directed the jury, both in his directions and route to verdict, count 3 was only ever to be considered by the jury as an alternative to count 1, not count 2.
29.
In the event that the jury was sure that the appellant had committed the burglary, the jury could not convict the appellant on count 3. In the event that the jury was not sure that the appellant had committed the offence of burglary, to which, as the jury knew, Dylan Turner had pleaded guilty, it could consider and convict the appellant on count 3. This is what the jury did.
30.
There is nothing in any suggestion that acquittal on count 1 is inconsistent with the jury's verdict on count 2. On the facts it was open to the jury to decide that the appellant was party to the theft of the car, whilst not being sure that he was a burglar. The counts were not joint offences, rather they were separate and distinct as the jury was directed. References in the summing-up to "joint offending" were obviously references to the joint nature of the offending with Dylan Turner; the Judge was not saying that the offences were necessarily committed by the same parties in each case. It was properly open to the jury on the facts to be sure that the appellant and Dylan Turner jointly stole the Toyota but not sure that the appellant was involved in the burglary. It is clear that the jury was not sure that the appellant was involved in the burglary.
31.
For these reasons, there is in our judgment nothing unsafe in the verdicts on counts 2 and 3 and the appeal will be dismissed.
Epiq Europe Ltd
hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400
Email: [email protected] | ```yaml
citation: '[2020] EWCA Crim 1288'
date: '2020-06-17'
judges:
- LADY JUSTICE CARR 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}
======
| Neutral Citation Number:
[2016] EWCA Crim 61
Case No:
201600456 B1
201600488 B1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
MR JUSTICE HOLROYDE
T20150301
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
22/03/2016
Before:
LADY JUSTICE SHARP
MR JUSTICE WILLIAM DAVIS
and
RECORDER OF MANCHESTER
- - - - - - - - - - - - - - - - - - - - -
Between:
Anjem Choudary
Mohammed Mizanur Rahman
Appellants
- and -
REGINA
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Mark Summers QC
and
Ms Blinne Ní Ghrálaigh
(1
st
Appellant) and
Mr Jo Sidhu QC
and
Ms Sultana Tafadar
(2
nd
Appellant)
(instructed by
Ahmed & Co Solicitors
) for the
Appellants
Mr Richard Whittam QC, Ms Alison Morgan
and
Mr Ben Lloyd
(instructed by
The Crown
) for the
Respondent
Hearing dates: 19 February 2016
- - - - - - - - - - - - - - - - - - - - -
Judgment Approved
Lady Justice Sharp:
Introduction
1.
The appellants, Anjem Choudary and Mohammed Mizanur Rahman, are charged on an indictment containing two counts. Count 1 charges Mr Choudary with an offence contrary to
section 12
of the
Terrorism Act 2000
(
the 2000 Act
) of inviting support for a proscribed organisation. The particulars are that between 29 June 2014 and 6 March 2015 he invited support for a proscribed organisation, namely Islamic State of Iraq and Levant (“ISIL”, also known as “Islamic State” or “IS”) in breach of
section 12(1)
(a) of
the 2000 Act
. Count 2 charges Mr Rahman with a similar offence in identical terms.
2.
Section 12
of
the 2000 Act
is headed “Support”. The section is set out in full at paragraph 33 below.
Section 12(1)
(a) provides that: “(1)
A person commits an offence if—(a) he invites support for a proscribed organisation, and (b) the support is not, or is not restricted to, the provision of money or other property (within the meaning of section 15).”
3.
On 14 January 2016, Holroyde J made a ruling at a preparatory hearing at the Central Criminal Court. The preparatory hearing was required by
section 29
(1B) of the
Criminal Procedure and Investigations Act 1996
(the
CPIA 1996
). The first day fixed for trial was 11 January 2016, but the trial was then adjourned for reasons unconnected with this appeal. The appellants now appeal against that ruling with the judge’s permission, pursuant to
section 35(1)
of the
CPIA 1996
.
4.
The judge was invited to rule on the legal ingredients of the offence contrary to
section 12(1)
(a) of
the 2000 Act
. In summary he held the prosecution were required to prove that:
i)
The organisation in question was a proscribed organisation, within the meaning of
the 2000 Act
;
ii)
A defendant used words which in fact invited support for that proscribed organisation;
iii)
The defendant knew at the time he did so that he was inviting support for that proscribed organisation.
5.
It was common ground before the judge that holding views supportive of a proscribed organisation was not conduct falling within
section 12(1)
(a) nor was expressing intellectual or moral support for such an organisation.
Unless this consisted of the wearing of uniforms etc. of such an organisation, conduct caught by
section 13
of
the 2000 Act
: see para 36 below.
It was also common ground that the prosecution were required to prove that a defendant knew that he was inviting support for an organisation that was proscribed, but that there was no requirement to prove specific intent. The issue in dispute was the meaning of the words ‘inviting support’.
6.
As to that, the judge decided in summary that those words should be given their normal and ordinary meaning. The ‘support’ required for the purposes of the actus reus of the offence, was not restricted to support that takes some practical or tangible form. He held further, that there must be proof that the defendant invited support
for a proscribed organisation
. This he distinguished from the mere expression of personal beliefs or personal approval of the proscribed organisation, and from inviting another to share such an opinion or belief, conduct which did not fall within the actus reus of the offence. Whether the words used did or did not amount to an invitation of support for a proscribed organisation, was a matter of fact for the jury to determine.
7.
The arguments for the appellants in this appeal have been advanced by Mr Summers QC for Mr Choudary, and adopted by Mr Sidhu QC for Mr Rahman. The contention for the appellants is that the actus reus of the offence comprises an invitation by a defendant to one or more persons
to join
the defendant in providing
practical or tangible support
to a proscribed organisation. It is said this is the correct meaning of
section 12(1)
(a) applying ordinary principles of construction. Alternatively, it is said the judge’s (broader) interpretation of ‘inviting support’ is incompatible with articles 7, 9 and 10 of the European Convention of Human Rights (the Convention) and also articles 10 and 11 of the Charter of Fundamental Rights and Freedoms of the European Union (the EU Charter).
8.
For the reasons that follow we would dismiss this appeal.
The factual background
9.
On 20 June 2014, ISIL
ISIL is also known as Dawlat al –‘Iraq al-Islamiyya, Islamic State of Iraq, Islamic State of Iraq and Syria, Dawlat al Islamiya fi Iraq waa al Sham and the Islamic State in Iraq and Sham. IS, an alternative name for ISIL, was proscribed by order made on 20 August 2014.
was proscribed by the Home Secretary by the
Terrorism Act 2000
(Proscribed Organisations) (Amendment) (No. 2) Order 2014, SI 2014/1624 (the 2014 Order).
10.
When a terrorist organisation is proscribed (i.e. banned), a summary of the relevant background is given in Explanatory Memoranda to the Statutory Instrument. In relation to ISIL, the Explanatory Memorandum to the 2014 Order said this:
“Islamic State of Iraq and the Levant (ISIL)
is an armed Sunni Islamist terrorist group active in Iraq and Syria. The group was established just prior to the commencement of coalition operations in Iraq, and pledged allegiance to Al Qa’ida in 2004. The group adheres to a global jihadist ideology, following an extreme interpretation of Islam, which is anti-Western and promotes sectarian violence. ”
In October 2006, the group began using the name ‘Dawlat al-‘Iraq al-Islamiyya’ or Islamic State of Iraq (ISI) in a largely unsuccessful attempt to unify the various Sunni Jihadist factions. In April 2012, the group changed its name to the ‘Islamic State of Iraq and the Levant’ to reflect its involvement in the Syrian civil war. The group is also commonly referred to as the Islamic State of Iraq and Syria (ISI) and Dawlat al Islamiya fi Iraq wa al Sham (DAISh) and the Islamic State of Iraq and Sham.
In April 2014, ISIL claimed responsibility for a series of blasts targeting a Shia election rally in Baghdad. These attacks are reported to have killed at least 31 people. Thousands of Iraqi civilians lost their lives to sectarian violence in 2013, and attacks carried out by ISIL will have accounted for a large proportion of these deaths.
ISIL has reportedly detained dozens of foreign journalists and aid workers. In September 2013, members of the group kidnapped and killed the commander of Ahrar ash-Sham after he intervened to protect members of a Malaysian Islamic charity.
In January 2014, ISIL captured the Al-Anbar cities of Ramadi and Fallujah, and is engaged in ongoing fighting with the Iraqi security forces. The group also claimed responsibility for car bomb attacks that killed four people and wounded dozens in the Southern Beirut suburb of Haret Hreik. Just last week the group used violence to take control of the Iraq city of Mosul prompting many thousands of people to leave their homes.
ISIL has a strong presence in northern and eastern Syria where it has instituted strict Sharia law in the towns under its control. The group is responsible for numerous attacks and a vast amount of deaths. The group is believed to attract a number of foreign fighters, including Westerners, to the region, and has maintained control of various towns on the Syrian/Turkish border. This allows the group to control who crosses, and its presence there has interfered with the free flow of humanitarian aid.
ISIL was previously proscribed as part of Al Qa’ida (AQ). However on 2 February 2014, AQ senior leadership issued a statement officially severing ties with ISIL, which prompted consideration of the case to proscribe ISIL in its own right. Reports suggest that the group was not dependent on AQ core for resources or direction, its disenfranchisement from AQ will not impact the group’s aims, influence, how it operates or its activities.
ISIL is designated as a terrorist group by both Canada and Australia and as an alias of AQ by US, New Zealand and the UN.”
11.
The Crown alleges that the appellants openly supported ISIL before it was proscribed. They are both experienced speakers, perceived by others as leaders. They have a large following on social media, and had made many public statements supporting ISIL on their social media accounts. They had also attended a protest at which banners of support for ISIL were displayed.
12.
The Crown’s case, set out in its revised Case Summary/draft opening note
Replacing one prepared for the PCMH held on 11 December 2015.
is that after ISIL was proscribed, the appellants invited support for ISIL in four talks (the talks), two given by each appellant, posted on the internet in September and November 2014; and in an Oath of Allegiance posted on the internet on 7 July 2014 in their Islamic names,
Mr Choudary is referred to by his kunya, Abu Luqman. Mr Rahman is referred to by his kunya, Abu Baraa.
in which they declared their allegiance to a Caliphate, or Islamic State, declared by ISIL on 29 June 2014, and to its leader, or Caliph, Abu Bakr al Baghdadi.
13.
The Oath of Allegiance to Al Baghdadi and the Caliphate was posted in the Arabic and Indonesian languages on a website, Al-mustaqbal.net; and we have been provided with details of the evidence relied on by the Crown said to show the part the appellants played in its production, together with other signatories of it based abroad.
14.
The Oath of Allegiance said amongst other things:
“‘Support by the Muhajiroun to Pledge Allegiance for the Caliphate State.”
…To observe the renowned Levantine speech of Abi Mohammed Al Adnani concerning issues of the Islamic Caliphate State and the message of the Mujahid Sheikh Abi Bakr Al Baghdadi to the Mujahedeen and to the rest of the Muslims during the holy month of Ramadan of the year one thousand, four hundred and thirty five so to observe the apparent development of the Islamic State of Iraq and Levant.
…
1. The Muhajiroun affirmed that the proclaimed Islamic Caliphate State is a legitimate Islamic Succession fulfilling the conditions of succession and leadership…
4. Every one of the Muhajiroun has a duty to call for Islam, to command his group to call for Islam wherever they are and to enjoin good and forbid evil, also to take jihad to call for Islam and to support the pledge of allegiance to the Caliphate State’.
15.
Against this background it is said that in the talks the appellants sought to validate the legitimacy of the Caliphate
The “Khilafah.”
and the Caliph, and to emphasise the obligation on others to obey, or provide support to Al Baghdadi. One of those obligations was to travel (or make “Hijra”) to the Islamic state. Whilst it is accepted that the talks do not contain explicit invitations to violence, the talks are said to be invitations of general support for the Islamic State declared by ISIL, and do not limit themselves as to the manner in which support should be given.
16.
The Crown does not accept that this is a marginal case, or that, in saying what they did, the appellants may have stepped over the line between what is permissible, and what is not. Nor is it accepted these are abstract talks about the concept of the Caliphate. It is said that the Caliphate the appellants talked about was that declared by ISIL; and the talks are a justification for the Islamic State declared by Al Baghdadi, in terms which amount to an invitation of support for ISIL. Moreover, the appellants were fully aware of the need for care as to the manner in which public statements of support for ISIL were delivered, given the fact of proscription. The talks were deliberately designed to invite support for ISIL, without going so far as to encourage terrorism or engage in acts of terrorism (discrete offences under the terrorist legislation) and in this respect, they chose their words with particular care.
17.
The appellants deny they are guilty of the offences charged. They do not deny that ISIL in its various names was a proscribed organisation, or that they gave the talks alleged (albeit there may be trial issues about the exact words used or their meaning, and about how the talks came to be posted on the internet). In their defence statements, served on 11 December 2015, they dispute that these talks were invitations to support ISIL and/or that they intended them to be. Mr Choudary for example says: (i) the talks he gave were not inviting support for ISIL, but rather assessing the issues surrounding the implementation of the Islamic State or Caliphate/Khilafah system in the Middle East; and/or (ii) if the talks are found to have invited support for ISIL within the meaning of
section 12
of
the 2000 Act
, he did not do so intentionally.
The statutory framework
18.
The long title of
the 2000 Act
provides that it is:
“An Act to make provision about terrorism, and to make temporary provision in Northern Ireland about the prosecution and punishment of certain offences, the preservation of peace and the maintenance of order.”
19.
Section 1
of
the 2000 Act
as amended by the
Terrorism Act 2006
(
the 2006 Act
) and the
Counter-Terrorism Act 2008
provides as follows:
“(1) In
this Act
“terrorism” means the use or threat of action where—
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious racial or ideological cause.
(2) Action falls within this subsection if it—
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person’s life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e)is designed seriously to interfere with or seriously to disrupt an electronic system.
(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not sub
section (1
)(b) is satisfied.
(4) In this section—
(a) “action” includes action outside the United Kingdom,
(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,
(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and
(d) “the government” means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.
(5) In
this Act
a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.”
20.
The 2000 Act
replaced the
Prevention of Terrorism (Temporary Provisions) Act 1989
(PTA 1989) and the
Northern Ireland (Emergency Provisions) Act 1996
(EPA 1996), together with other Acts relating to Northern Ireland.
21.
Section 2 of the PTA 1989, provided in part as follows:
“Membership, support and meetings
(1)…a person is guilty of an offence if he…
(b) solicits or invites support for a proscribed organisation other than support with money or other property.”
22.
Section 30 of the EPA 1996 provided in part as follows:
“Proscribed organisations”
(1)…any person who-
(b) solicits or invites support for a proscribed organisation other than support with money or other property…
is guilty of an offence.”
23.
The offences in section 2 of the PTA 1989 and section 30 of the EPA 1996 were triable either summarily or on indictment. A conviction after a trial on indictment carried a maximum sentence of ten years’ imprisonment.
24.
Part II of
the 2000 Act
effectively merged the two separate lists of organisations previously proscribed under the PTA 1989 and the EPA 1996 into a single list,
The list of proscribed organisations in Schedule 2 of
the 2000 Act
, as originally enacted, consisted of those organisations previously proscribed under the PTA 1989 and the EPA 1996 (the IRA and the INLA for example).
and established a proscription regime applying across the whole of the United Kingdom. It also extended the ambit of proscription by making it possible for organisations concerned with international or domestic terrorism to be proscribed, as well as those concerned with terrorism connected with the affairs of Northern Ireland. Part II consists of 13 sections, and is divided into two parts: Procedure (sections 3 to 10) and Offences (sections 11 to 13).
25.
Section 3
of
the 2000 Act
provides that an organisation is proscribed if it is listed in Schedule 2 to
the Act
, or it operates under the same name as an organisation listed in that Schedule. Under
Section 3(3)
of
the 2000 Act
the Secretary of State may, by order, add or remove an organisation from the list in Schedule 2, or amend the Schedule in some other way. These orders are subject to the affirmative procedure and therefore require the approval of both Houses of Parliament.
26.
Under
section 3(4)
of
the 2000 Act
, the Secretary of State may only exercise her power to add an organisation to the list of proscribed organisations in Schedule 2 if she believes
For the test to be applied in
Section 3(4)
of the
TA 2000
, see
SSHD v Lord Alton of Liverpool
[2008] EWCA 443 at para 22.
that it is “concerned in terrorism.” For the purposes of
Section 3(4)
of
the 2000 Act
, an organisation is concerned in terrorism if it- (a) commits or participates in acts of terrorism, (b) prepares for terrorism, (c) promotes or encourages terrorism, or (d) is otherwise concerned in terrorism: see
section 3(5)
Section 22
of the
TA 2006
inserted new provisions into
section 3
of the
TA 2006
enabling the Secretary of State to make orders specifying alternative names when an organisation listed in Schedule 2 to the
TA 2000
is operating under a different name.
of
the 2000 Act
.
Section 21
of
the 2006 Act
inserted new sub
sections (5
A), (5B) and (5C) into
section 3
of
the 2000 Act
, so that the promotion or encouragement of terrorism includes the “unlawful glorification” of terrorism.
27.
Sections 4
to 7 of
the 2000 Act
make provision for organisations and persons to apply to the Secretary of State to be removed from Schedule 2 (deproscription), and for appeals from any refusal to the Proscribed Organisations Appeal Commission, and thereafter to the Court of Appeal.
The proscription offences
28.
The offences in Part II of
the 2000 Act
relate to membership of a proscribed organisation, section 11; support for it,
section 12
; and the wearing of uniforms et cetera,
section 13
.
29.
Proscription has other consequences. The definition of “terrorist property” in
section 14
of
the 2000 Act
includes money or other property which is likely to be used for the purposes of terrorism (including any resources of a proscribed organisation): see
section 14 (1)
(a). Once an organisation is proscribed, by virtue of
section 1(5)
of
the 2000 Act
, the prohibitions and restrictions laid down in other parts of
the 2000 Act
are engaged. These include
sections 15
to 18 (which create offences of fundraising, use or possession of money or other property, making funding arrangements or money laundering for the purposes of terrorism); section 19, which makes it an offence to fail to disclose any belief or suspicion that another person has committed any offences under
sections 15
to 18 in certain circumstances, and section 56, which makes it an offence to direct at any level the activities of an organisation which is concerned in the commission of acts of terrorism.
See
Attorney General’s Reference (No 4 of 2002) [2003] EWC
A Crim. 762,
[2003] 3 WLR 1153
,
para 19
.
30.
Sections 11 and 12 are based on the offences in section 2 of the PTA 1989 and section 30 of the EPA 1996.
31.
The Explanatory Notes to
the 2000 Act
say this, at para 23:
“Membership and support.
These offences are based on those in section 2 of the PTA and section 30 of the EPA, and have similar effect. The offence in
section 12(1)
is not confined to support by providing “money or other property”, because that kind of support is dealt with in Part III of
the Act
.
Sub
section (4
)
of
section 12
is intended to permit the arranging of genuinely benign meetings.”
32.
Section 11
of
the 2000 Act
, provides that:
“(1) A person commits an offence if he belongs or professes to belong to a proscribed organisation.
(2)It is a defence for a person charged with an offence under sub
section (1
) to prove—
(a) that the organisation was not proscribed on the last (or only) occasion on which he became a member or began to profess to be a member, and
(b) that he has not taken part in the activities of the organisation at any time while it was proscribed.
(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 ten years, to a fine or to both, or
(b) on summary conviction, to imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both.
33.
Section 12
of
the 2000 Act
provides that:
(1)
A person commits an offence if—
(a) he invites support for a proscribed organisation, and
(b) the support is not, or is not restricted to, the provision of money or other property (within the meaning of
section 15
).
(2) A person commits an offence if he arranges, manages or assists in arranging or managing a meeting which he knows is—
(a) to support a proscribed organisation,
(b) to further the activities of a proscribed organisation, or
(c) to be addressed by a person who belongs or professes to belong to a proscribed organisation.
(3) A person commits an offence if he addresses a meeting and the purpose of his address is to encourage support for a proscribed organisation or to further its activities.
(4)Where a person is charged with an offence under subsection (2)(c) in respect of a private meeting it is a defence for him to prove that he had no reasonable cause to believe that the address mentioned in subsection (2)(c) would support a proscribed organisation or further its activities.
(5)In subsections (2) to (4)—
(a) “meeting” means a meeting of three or more persons, whether or not the public are admitted, and
(b) a meeting is private if the public are not admitted.
(6) A person guilty of an offence under this section shall be liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding ten years, to a fine or to both, or
(b) on summary conviction, to imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both.
34.
As can be seen,
section 12
creates three offences: (i) inviting support for a proscribed organisation; (ii) arranging, et cetera, a meeting which is to support a proscribed organisation; and (iii) addressing a meeting of which the purpose is the encouraging of support for a proscribed organisation.
35.
It is however important to note what the section does not prohibit. It is common ground as we have said, that it does not prohibit the holding of opinions or beliefs supportive of a proscribed organisation; or the expression of those opinions or beliefs (though as the judge noted, depending on the circumstances the expression of opinions or beliefs might in principle, constitute an offence under
section 11
of professing membership).
36.
Section 13(1)
provides that a person in a public place commits an offence if he (a) wears an item of clothing or (b) wears, carries or displays an article, in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation. Section
13(3)
provides that this is a summary only offence, with a
maximum sentence of six months’ imprisonment.
The issue of construction
37.
In
Attorney General’s Reference (No 4 of 2002)
[2003] EWCA Crim. 762,
[2003] 3 WLR 1153
, as to which, see further, para 64 below, Latham LJ, giving the judgment of the Court, described the purpose of
the 2000 Act
as self-evident:
“‘
It provides the measures which Parliament considers is necessary to prevent political or paramilitary violence and thereby protect the citizens of the United Kingdom, and enable a democratic society to operate without fear. It also contains measures which are designed to prevent the United Kingdom from being used for the purposes of terrorism outside the jurisdiction. It is universally acknowledged that terrorism is particularly difficult to counter. The European Court of Human Rights acknowledged that full account had to be taken of the special nature of terrorist crime and the threat which it posed to a democratic society in Murray v United Kingdom
(1994) 19 EHRR 193
.”
38.
As is clear from the statutory framework, the regime of proscription in Part II of
the 2000 Act
is integral to the measures that Parliament has considered necessary to combat organisations concerned with terrorism. No one doubts, as the judge said, the competence of Parliament to legislate to proscribe organisations concerned with terrorism, as so defined; nor we would add, its competence to make proscription effective by inhibiting activities associated with such organisations. In short, statutory proscription is of no value or effect if the legislature does not also provide the means to enforce it, or put it into effect.
39.
The offences in
sections 11
to 13 fall short of substantive acts, such as participating in terrorism or preparing or training for acts of terrorism, but they inhibit activities associated with terrorist organisations, including the invitation of support for them
from others
.
40.
The judge in this case identified the mischief at which the
section 12(1)
offence is aimed as conduct that strengthens, promotes or assists organisations which are concerned with terrorism. As he explained:
“To invite the support of others for a proscribed organisation is to promote that organisation. The fact that a proscribed organisation has an increased number of supporters is in itself a benefit and boost to that organisation, whether or not the support of all is manifested in practical or concrete ways.”
41.
The words ‘invite’ and ‘support’ are not defined in
the 2000 Act
, and we do not find that surprising. Subject to the point we deal with at para 54 below, those words, as used in
section 12(1)
(a) of
the 2000 Act
, require no elaboration. On the face of it, they are ordinary English words with a clear meaning, and would be easily understood by a jury.
42.
Mr Summers describes the use of the word ‘invite’ in a penal statute as curious. We do not consider that it is. The use of that word means the offence in
section 12(1)
(a) is one where “the words descriptive of the prohibited act… themselves connote the presence of a particular mental element.” per Lord Diplock in
Sweet v Parsley
[1970] A.C. 132
at p.162E. As the judge said, it is difficult to see how an invitation could be inadvertent.
43.
The appellants submit that the Crown is required to prove an invitation by a defendant to one or more persons
to join
the defendant in providing support to a proscribed organisation, as part of the actus reus of an offence under
section 12(1)
. This submission is based on the suggestion that ‘invite’, in its normal meaning, connotes or implies that the maker of the invitation is already engaged in something, or intends to do that “something” himself.
44.
We accept such an implication may arise in ordinary conversation, depending on the context (an invitation to a party for example). However it is possible to invite someone to do something which the person issuing the invitation is not doing and does not intend to do (an invitation to counsel to lodge written submissions, to take a different example). If resort needs to be had to dictionaries to make the point, the first definition provided for the word “invite” in the Oxford English Dictionary is: “to make a polite, formal or friendly request to (someone) to go somewhere or do something”.
45.
Whilst common sense might suggest that a defendant charged under
section 12(1)
(a) may provide support for the proscribed organisation himself, or intend to so, and may want others to join him in such activities, in our judgment, there is nothing in the language of the section to support the proposition that the prosecution must prove this as part of the actus reus of the offence. The criminality in short, lies is inviting support (from third parties) for the proscribed organisation, not in inviting those third parties to join with the defendant in providing it.
46.
The ‘support’ in question may be practical or tangible, but it need not be, and we agree with the judge’s analysis:
“The Oxford English Dictionary’s definition of the noun 'support' includes the provision of assistance, of backing or of services to keep something operational: examples of the sort of practical or tangible assistance which defence counsel submit is the true subject of the
section 12(1)
offence. But the dictionary definition also includes encouragement, emotional help, mental comfort, and the action of writing or speaking in favour of something or advocacy. In everyday language, support can be given in a variety of ways, and it seems to me that it is for a jury to decide whether the words used by a particular defendant do or do not amount to inviting support. In its ordinary meaning, “support” can encompass both practical or tangible assistance, and what has been referred to in submissions as intellectual support: that is to say, agreement with and approval, approbation or endorsement of, that which is supported.
From the point of view of the proscribed organisation, both types of support are valuable. An organisation which has the support of many will be stronger and more determined than an organisation which has the support of few, even if not every supporter expresses his support in a tangible or practical way. The more persons support an organisation, the more it will have what is referred to as the oxygen of publicity. The organisation as a body, and the individual members or adherents of it, will derive encouragement from the fact that they have the support of others, even if it may not in every instance be active or tangible support. Hence in my judgment, it is a perfectly understandable that Parliament, in legislating to give effect to the proscription of a terrorist organisation, prohibits the invitation of support for that prohibited organisation without placing any restriction upon the meaning of the word 'support', other than to exclude conduct caught in any event by a separate provision of
the Act
.”
47.
The criminalisation of such conduct, with the requisite intent, seems to us to fall squarely within the legislative intent and purpose of the section, and of
the 2000 Act
as a whole. The observations in
R v K
[2008] EWCA Crim. 185,
[2008] QB 827
at para 13, and in
R v G
[2009] UKHL 13
,
[2010] 1 AC 43
, at paras 42-43 and 50, made in relation to the correct ambit of
section 58
of
the 2000 Act
do not seem to us to take the arguments in this appeal any further.
48.
It is of course important, as we have said, that someone can only be convicted of an offence under
section 12(1)
(a) if they
knowingly
invite support for an organisation that is proscribed. The prosecution must therefore make the jury sure (i) that the organisation was proscribed organisation within the meaning of
the 2000 Act
; (ii) that the defendant used words which in fact invited support for that proscribed organisation, and (iii) that the defendant knew at the time he did so that he was inviting support for that organisation.
49.
As the judge was also careful to emphasise, there must be proof of an invitation of support
for the proscribed organisation
. This is to be distinguished from the (mere) expression of personal beliefs, or an invitation to someone else to share an opinion or belief, conduct that does not fall within the ambit of the
section 12(1)
(a) offence.
50.
The appellants submit that in its ordinary meaning,
section 12(1)
(a) is uncertain and insufficiently precise to enable individuals to know whether their conduct is lawful or not. It therefore offends against the principle of legality, and infringes article 7 of the Convention. We do not agree. An offence must be clearly defined in law; and a law must be formulated with sufficient precision to enable a citizen to foresee, if need be, with appropriate advice, the consequences which a given course of conduct may entail: see
R v Rimmington
[2005]
UKHL 63,
[2006] 1 AC 459
, in particular para 35 where the Strasbourg jurisprudence in relation to article 7 of the Convention is summarised.
51.
The judge said correctly in our view:
“It does not seem to me that a statutory provision prohibiting a man from inviting support for a proscribed organisation is in any way unclear. Nor is it difficult for a man to know the boundaries of his permissible behaviour. Knowing that an organisation is a prohibited organisation, he must not invite support to it from others. I do not think it is as difficult as the defendants’ counsel suggest, to distinguish between holding a view, which may also be held by members of a proscribed organisation, and supporting the proscribed organisation. Once again, one can easily say that one agrees with certain views, but does not support the proscribed organisation.”
52.
We accept of course, that the words should be given a close construction, as is required for any penal statute. But applying that principle does not lead us to take a different view of what are clear, and easily comprehensible words. We do not consider the famous dictum of Lord Reid in
Sweet v Parsley
[1970] 132, at page 149E, and the universal principle to which he refers, assists the appellants on the facts. If the word ‘support’ is given its ordinary meaning, the actus reus of the offence can encompass support which goes beyond that which can be characterised as practical or tangible, but this does not mean the section is ambiguous or impermissibly vague.
53.
The appellants submit this (broader) construction is contrary to the tenor of the rest of the section, and indeed to the tenor of three proscription offences read as a whole. Their focus so it is said is on practical support of different kinds, and nothing more. A number of different reasons are given for this contention, but we do not find any of them persuasive.
54.
First, it is said,
section 12(1)
(b) makes reference to practical or tangible support (“money or other property”). Thus, an application of the
ejusdem generis
principle, means the support referred to in
section 12(1)
(a) should be similarly construed. Quite apart from the fact that this would involve an inverse application of the
ejusdem generis
principle (since as commonly understood it applies to general words following the less general, and not the other way around) in our view this submission is misconceived. The words “money or other property” in
section 12(1)
(b) are not there to establish a
genus
but operate to exclude from the definition of ‘support’ for the purposes of an offence under
section 12(1)
(a) conduct which falls to be dealt with under
section 15
of
the 2000 Act
.
Section 15
is in Part III of
the 2000 Act
, which deals with Terrorist Property.
Section 15 (1)
provides that it is an offence to invite another to provide money or other property intending that it should be used, or having reasonable cause to suspect that it may be used, for the purposes of terrorism.
We would add that if the Explanatory Notes to
Sections 11
and 12, set out in para 31 above, might be read as suggesting otherwise, they are obviously wrong.
55.
Secondly, it is said
sections 12(2)
and (3) can only be sensibly read as referring to practical or tangible support; and
section 12(1)
(a) should be construed consistently with those subsections. As we have said,
section 12
creates three distinct offences relating to support. We do not consider that giving the word support its ordinary meaning for the purposes of
section 12(1)
(a) gives rise to any arguable inconsistency. The offences created by
sections 12(2)
and (3) deal with different forms of support, which can in any event encompass conduct that is somewhat broader than the ‘mere’ practical (as can be seen by the use of the words: “further the activities of the proscribed organisation for the offence” in
section 12(2)
(b); and the words “or to further its activities” in
section 12(3)
).
56.
It is argued by reference to
section 13
of
the 2000 Act
, that where
the 2000 Act
intends to refer to and criminalise support
of
a proscribed organisation, or ‘cheerleading’ as Mr Summers describes it, it says so and such conduct leads to a significantly lower sentence. Thus it is said, the conduct element of the offence in
section 12(1)
(a) cannot include mere intellectual or mental approval, but must be aimed at something materially different, and more serious.
57.
We do not think the difference between the two sections either as to penalty or preposition for that matter (support of, rather than support for) are of any significance. Even if the conduct criminalised by
section 13
can properly be characterised as ‘cheerleading’ such a description does not apply to the conduct criminalised in
section 12
. Simply put,
sections 12
and 13 address types of conduct of differing seriousness. In our view, the different penalties that apply are readily explicable on that basis.
58.
In a similar vein, Mr Summers points out that an offence of encouraging terrorism contrary to
section 1
of the
Terrorism Act 2006
(
the 2006 Act
) carries a maximum sentence of seven years’ imprisonment. Such an offence may be committed he says, by a defendant directly encouraging the commission of a crime as serious as murder. And it would be anomalous if conduct which is more serious than that penalised by
section 12(1)
(a), could only attract a lesser sentence. However these are different provisions, in different Acts of Parliament, covering different offences. Any anomaly (which in our view would not be necessarily be removed by giving the words in section the appellants’ more restrictive interpretation) is a matter to be resolved by Parliament.
59.
We are told by Mr Summers and of course accept, that there have been no known prosecutions for inviting ‘moral or intellectual’ support for a proscribed organisation under the equivalent provisions of the PTA 1996 and the ETA. He submits that if the section we are considering bears the wide meaning given to it by the judge, it would necessarily have encompassed the activities of members of Sinn Fein, who regularly invited support for the IRA. In our view, this point is of no relevance. The absence of prosecutions may have been for any number of reasons, about which we cannot speculate. What we can say however is that previous prosecutorial practice cannot be any guide to what Parliament intended when it came to enact
section 12
, or to the meaning of the ordinary English words which the section contains.
60.
Finally, Mr Summers submits that the fact there is no equivalent offence of inviting support for “murderous dictators” or for war criminals gives rise to another anomaly. The point seems to us to be irrelevant. Proscribed organisations are the subject of a statutory regime; murderous dictators are not. These are matters for Parliament, not for us.
The Convention and Charter arguments
61.
There is no doubt that this aspect of the argument has received much more emphasis before us than it did before the judge; and we have been presented with an array of authorities, submissions and schedules on the issue, which continued to arrive for some days after the hearing.
62.
Though the issue is approached in a number of different ways, the essential argument in relation to Convention rights seems to us to be based on two points: legality and proportionality. In relation to the second of those two points, the argument advanced is that Strasbourg jurisprudence discloses a “bright line” rule that criminalisation of speech infringes article 10 of the Convention unless the speech advocates or encourages violence
.
63.
The material parts of article 10 provide that:
“(1) 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…
“(2) 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…”
64.
In
Sheldrake v Director of Public Prosecutions, Attorney General’s Reference
(No 4 of 2002)
[2005] 1 AC 264
the defendant in the Attorney General’s reference was acquitted of two offences contrary to
section 11
of
the 2000 Act
. The Attorney General referred to the Court of Appeal two questions: what were the ingredients of the offence contrary to
section 11(1)
; and did the defence in
section 11(2)
impose a legal, rather than an evidential burden upon a defendant (and if it did, whether this was compatible with articles 6(2) and 10 of the Convention). In a conjoined appeal, the House of Lords upheld the decision of the Court of Appeal in the
Attorney General’s Reference
, that the ingredients of that offence were fully set out in
section 11(1)
and did not include participation in the activities of a proscribed organisation. The House also decided by a majority of three to two, reversing the Court of Appeal, that it was appropriate, pursuant to
section 3
of the
Human Rights Act 1998
, to read down
section 11(2)
so it imposed an evidential, and not a legal burden on the defendant.
65.
In the course of considering those questions, Lord Bingham of Cornhill, with whom Lord Steyn and Lord Phillips of Worth Matravers MR agreed, said this:
“5
0. … There is also, in my opinion, no doubt that sub
sections (1
) and (2) are directed to a legitimate end: deterring people from becoming members and taking part in the activities of proscribed organisations …
54. In penalising the profession of membership of a proscribed organisation,
section 11(1)
does, I think, interfere with exercise of the right of freedom of expression guaranteed by article 10 of the Convention. But such interference may be justified if it satisfies various conditions. First, it must be directed to a legitimate end. Such ends include the interests of national security, public safety and the prevention of disorder or crime.
Section 11(1)
is directed to those ends. Secondly, the interference must be prescribed by law. That requirement is met, despite my present doubt as to the meaning of “profess”. Thirdly, it must be necessary in a democratic society and proportionate. The necessity of attacking terrorist organisations is in my view clear. I would incline to hold sub
section (1
) to be proportionate, for article 10 purposes, whether subsection (2) imposes a legal or an evidential burden.”
66.
Though these observations were made in relation to
section 11
, we think they are valuable in relation to the issues raised in this appeal. We certainly accept that a prosecution for an offence contrary to
section 12(1)
of
the 2000 Act
engages article 10 of the Convention, to the extent that it limits the right of an individual to express himself in a way that amounts to an invitation of support for a proscribed organisation. We also accept that article 10 is engaged on the facts of this case.
67.
However, the right to freedom of expression is not absolute. Interference with that right may be justified, if it is prescribed by law, has one or more of the legitimate aims specified in article 10(2), is necessary in a democratic society for achieving such an aim or aims (where necessity implies the existence of a pressing social need) and is proportionate to the legitimate aim or aims pursued.
68.
The starting point in relation to an offence under
section 12
is the fact of proscription. In other words,
section 12
, like
sections 11
and 13, is concerned with activities associated with an organisation that has already been proscribed in accordance with the process laid down in the legislation, following a determination by the Secretary of State that it is concerned with terrorism, as defined. The terms of
section 12 (1)
(a) itself are clear: see paras 50 to 52 above, and in our view the requirement that the interference must be prescribed by law is met. Further,
section 12(1)
(a), like
section 11
, is a measure that is clearly directed to a number of legitimate ends: preserving national security, public safety, the prevention of disorder and crime and the rights and freedoms of others.
69.
The appellants do not argue that a prosecution for inviting practical or tangible support for a proscribed organisation would infringe the rights protected by the Convention. However the broader support which the section is aimed at, is very valuable to such organisations for the reasons identified by the judge, and needless to say, it cannot be known how such invitations of support will be acted on. As Mr Whittam QC for the Crown submits, the offences in Part II of
the 2000 Act
are essential to the proscription process because they are the means by which proscription is put into effect. They enable the State to counter and attack such organisations, the influence they have on third parties and, ultimately, the threat that they pose to society.
70.
When considering the proportionality of the interference, it is important to emphasise that the section only prohibits inviting support for a proscribed organisation with the requisite intent. It does not prohibit the expression of views or opinions, no matter how offensive, but only the knowing invitation of support from others for the proscribed organisation. To the extent that
section 12(1)
(a) thereby interferes with the rights protected under article 10 of the Convention, we consider that interference to be fully justified.
71.
We take the same view in relation to article 9 of the Convention. No developed argument was made in relation to the engagement of article 9 on the facts. Though the appellants relied on the rights protected by article 9 of the Convention (to freedom of thought, conscience and religion) the sole point taken was that article 9(2) in contrast to article 10(2), does not permit the rights protected by article 9(1) to be restricted in the interests of national security. However, we do not think this adds anything of substance to this appeal. The permissible restrictions in article 9(2) include the protection of public order, and the protection of the rights and freedoms of others, which are amongst the legitimate ends at which
section 12(1)
is directed, as we have already said.
72.
Convention issues on proportionality are normally raised by reference to the detailed underlying facts. The argument for the appellants was not addressed to us in this way. The only specific fact relied on in this connection, is the Crown’s acceptance in the terms set out at para 15 above, that the invitations of support relied on by the Crown, do not contain explicit invitations to violence.
73.
The argument for the appellants as we have said is that the relevant Strasbourg jurisprudence discloses a ‘bright line’ drawn between speech that amounts to an incitement to violence and speech that does not. Criminalising the latter, it is argued, amounts to an unjustified infringement of article 10, whereas criminalising the former does not. Most of the cases relied on concern Turkey and the PKK.
74.
The first in time is
Zana v Turkey
27 EHRR 667 decided by the Grand Chamber in 1997. The applicant, a former mayor, had told a journalist in an interview for a newspaper that he supported the PKK but that he was not in favour of massacres. He said that anyone can make a mistake and that the PKK killed women and children by mistake. He was convicted of the offence “publicly to praise or defend an act punishable by law as a serious crime”. At paragraph 51 of the judgment the court set out the fundamental principles relating to article 10. Most of the later cases repeat and adopt these principles.
“(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly.
See
Handyside v. United Kingdom
, 1 E.H.R.R. 737, para. 49;
Lingens v. Austria
, (A/103): (1988) 8 E.H.R.R. 103, para. 31; and
Jersild v. Denmark
, (A/298): (1995) 19 E.H.R.R. 1, para. 37.
(ii) The adjective “necessary”, within the meaning of Article 10(2) implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10.
See
Lingens v. Austria
, para. 39.
(iii) In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks held against the applicant and the context in which he made them. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”.
See
Lingens v. Austria
, para. 40, and
Barford v. Denmark
(A/149): (1991) 13 E.H.R.R. 493, para.
28.
In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts.”
See
Jersild v. Denmark
, para. 31.
75.
Applying those principles to the facts, the court decided that there had not been a violation of article 10. It said that Turkey had legislated as it did to maintain national security and public safety as part of the fight against terrorism. The law invoked against Zana, which involved an interference with free speech, was proportionate to those legitimate aims.
76.
There were eight cases decided by the Grand Chamber in 1999:
Arslan v Turkey
31 EHRR 9
; Erdogu and Ince
v
Turkey
App. No. 25067/94 & 25068/94, 8 July 1999
; Gerger v Turkey
App. No. 24919/94, 8 July 1999;
Karatas v Turkey
App. No. 23168/94, 8 July 1999;
Baskaya and Okcuogl
u v Turkey 31 EHRR 10;
Surek (No 1) v Turkey
App. No. 26682/95, 8 July 1999;
Surek and Ozdemir v Turkey
7 BHRC 339.
77.
All of the cases were concerned with prosecutions under the Prevention of Terrorism Act as it then applied in Turkey, and in each, the court expressly reiterated the principles set out in paragraph 51 of
Zana
. The relevant section of the Prevention of Terrorism Act said as follows (the last eight words were removed from the section in 1995):
“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited, irrespective of the methods used and the intention.”
78.
Arslan
was an historian who had published what the court called “a literary historical narrative” of events in Turkey involving Kurds. The book did not deal with current events. The court acknowledged that it was open to a state to take measures against those who expressed a political view, though the state was obliged to exercise restraint – taking into account freedom of expression. The judgment then said this:
“…where such remarks incite to violence against an individual or a public official or a sector of the population, the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of expression.”
79.
The relevant passage concluded with the observation that the absence of any incitement to violence was “a factor which it is essential to take into consideration”. The court did not say that such absence meant that there was a violation of article 10. It is further to be noted that the legislation under which Arslan was prosecuted, did not refer explicitly to a proscribed organisation. Since the book in question was historical in nature, it is perhaps not surprising that the court found that the interference with free speech was not justified.
80.
Erdogu
was the editor of a magazine and
Ince
was a journalist working for the magazine who had interviewed a sociologist. The sociologist expressed strong views about Turkish government policy towards the Kurds and the role of the PKK. However, the content of the interview was an analysis from a sociological viewpoint, of the PKK and its role. It was in this context that the court said that the interview could not be read as an incitement to violence. The court also was concerned with the proportionality of the proposed sentences imposed when compared to the nature of the activity in question.
81.
Gerger
was a journalist who sent a message to be read out at a meeting held to commemorate the execution, 20 years earlier, of three young left-wing opponents of the Turkish government of the time. The judgment repeated much of the content of the judgment in
Arslan
. The court found there had been a violation of article 10. The essential basis of that finding was that the message was read out only to the people who attended the meeting, and was not more widely published.
82.
Karatas
published an anthology of his poems. The court said that, taken literally, the poems might be construed as inciting violence but that, in deciding whether they did so, the medium was poetry which only appeals to a minority of readers. This approach, which we are bound to say we find somewhat illogical, was the basis for the conclusion that the prosecution was disproportionate and contrary to article 10.
83.
Baskaya
wrote and
Okcuoglu
published an academic work setting out the socio-economic evolution of Turkey since the 1920s. It included discussion of the Kurdish issue which it described as complex. The court found that the prosecution of the two defendants was a violation of Article 10 because it failed to have sufficient regard to freedom of academic expression and the public’s right to be informed of a different perspective on the situation in south-east Turkey.
84.
There were two cases involving
Surek
who published a political journal. In one the court concluded that there had been no violation of article 10 when prosecution followed his publication of letters which indirectly portrayed the PKK’s activity as acts of national liberation. In the other, Surek had published an interview with a PKK leader. Although the conclusion that there had been a violation of article 10 was linked to the absence of any incitement to violence or any liability to incite to violence, the court also said that the state had failed to have sufficient regard to the public’s right to be informed of a different perspective.
85.
Gunduz v Turkey.
This was a decision of the Fourth Section in 2003. The offence was incitement of people to hatred or hostility on the basis of a distinction between social classes, races, religions, denominations or regions. Gunduz was the leader of an Islamic sect who appeared on a live television programme in which he expressed views about the interplay between Islam and democracy and defended Sharia as a system. His prosecution was for hate speech. The court noted that Gunduz’s comments were in the context of a pluralistic debate and were counterbalanced by the contributions of others. In that context there was no justification for the restriction in the freedom of speech.
86.
Gul v Turkey
. The provision under which Gul was prosecuted was in these terms:
“Any person who, knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not less than three and not more than five years’ imprisonment.”
87.
Gul had participated in demonstrations during which he had shouted slogans which supported various Marxist-Leninist parties and organisations. The court concluded that there had been a violation of article 10. It said:
“41. The Court observes that, taken literally, some of the slogans shouted (such as “Political power grows out of the barrel of the gun”; “It is the barrel of the gun that will call into account”) had a violent tone. Nevertheless, having regard to the fact that these are well-known, stereotyped leftist slogans and that they were shouted during lawful demonstrations—which limited their potential impact on “national security” and “public order”—they cannot be interpreted as a call for violence or an uprising. The Court stresses, however, that whilst this assessment should not be taken as an approval of the tone of these slogans, it must be recalled that art.10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed.
See
Karatas v Turkey
(23168/94) July 8 1999 at [49].
The Court also reiterates that, according to its well-established case law, para.2 of art.10, is applicable not only to “information” or “ideas” which are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society”.
See
Surek v Turkey
(23927/94 & 24277/94) July 8 1999 at [57].
”
42 The Court observes that, by shouting these slogans, the applicants did not advocate violence, injury or harm to any person. Furthermore, neither in the domestic court decisions nor in the observations of the Government is there any indication that there was a clear and imminent danger which required an interference such as the lengthy criminal prosecution faced by the applicants……..
44 In view of the above findings, the Court is of the view that the applicants’ conduct cannot be considered to have had an impact on “national security” or “public order” by way of encouraging the use of violence or inciting others to armed resistance or rebellion, which are essential elements to be taken into account.
See
Koc v Turkey
(50934/99) March 21 2006 at [39].
45 Having regard to the above considerations, the Court concludes that, in the circumstances of the present case, the interference in question was not, “necessary in a democratic society”. Accordingly, there has been a violation of art.10 of the Convention.
88.
The appellants relied in argument on what was said in the dissenting judgment. We doubt the validity of that reliance, but in any event, the judgment does not have the effect suggested, and has little to connect it with what we know about the facts of this case. The passage relied on says as follows:
“…we do not believe that moral support for terrorism per se deprives an expression of the protection of Article 10. It is possible … that someone agrees with certain terrorists about an alleged injustice which the terrorists claim to be the reason of their fight. Such agreement on matters of injustice is indirect support only and does not amount per se to the support of terrorist methods.”
89.
We are not persuaded that any ‘bright line’ principle can be discerned from the cases to which we have been referred. In none of the cases was the defendant prosecuted for inviting support from third parties for the organisation in question. Further, the references to support for violence were made within a general discussion of the facts, and as part of the careful proportionality analysis undertaken by the court. The high point of the appellants’ case appears to be
Gul.
But there is little to compare that case with this one. It is true that the offence in that case related to an illegal group. However the prosecution concerned well-known leftist slogans shouted during a lawful and peaceful demonstration, and the nature of the slogans limited their potential impact on ‘national security’ and ‘public order’. We would only add that, contrary to the principle contended for, it has been held permissible in article 10 terms to criminalise speech which does not involve any incitement to violence albeit in rather different circumstances. See for example,
Hoare v United Kingdom
[1997] EHLR 678 (obscenity) and
Wingrove v United Kingdom
[1997] 24 EHRR 1 (blasphemy).
90.
Finally, we turn to the EU Charter, which we need mention only briefly. The EU Charter applies to Member States only when they are implementing Union law. An issue was raised (in more detail in written submissions lodged after the hearing, than during the hearing itself) as to the applicability of the EU Charter; and in particular, whether
section 12
of
the 2000 Act
fell ‘within the scope of EU law’. However, there is no distinction in this case between the rights relied on under the EU Charter and those relied on under the Convention. In those circumstances, as Mr Summers accepts, the points made in relation to the EU Charter did not add anything of substance to the appeal save as to remedy, and this is an issue which in the event, does not arise.
Process
91.
We expressed our concern to the parties during the course of the hearing, about the fact that the issues raised before us, were dealt with by the judge at the Preparatory hearing, a hearing which took place nominally at least, a day or so after the first day fixed for the trial. Counsel explained this resulted from the shortened timetable of the case, and the timing of the service of evidence. We make no criticism of Counsel. However, we think it unsatisfactory that issues as fundamental as this might be to a prosecution, are not dealt with at an earlier stage of the proceedings. Preparatory hearings may be necessary to ensure that trials do not take place on a flawed legal basis. To the extent that such issues are dealt with on the first day of the trial, but before the trial proper has begun, time and costs are saved. However, it is also, and equally important to ensure, in accordance with the overriding objective, that costs are not wasted in preparing for a trial that ultimately does not take place. In our judgment, both sides in the criminal process, that is the prosecution and defence, should ensure that this does not occur. For the future, we see no reason why an issue such as the one we have had to consider here, should not be considered in particular by the defence, at a much earlier stage than this one was; and listed and determined before the considerable costs of trial preparation up to the first day of the trial, have been incurred. To the extent that it is necessary to consider any amendment to the Criminal Procedure Rules to ensure this occurs, we would invite the Criminal Rules Committee to do so.
92.
As it is, for the reason we have given, this appeal is dismissed. | ```yaml
citation: '[2016] EWCA Crim 61'
date: '2016-03-22'
judges:
- LADY JUSTICE SHARP
``` |
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 2825
No:
2007/6508/C2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Monday, 6 October 2008
B e f o r e
:
LORD JUSTICE MOSES
MR JUSTICE TUGENDHAT
HIS HONOUR JUDGE GILBERT QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - -
R E G I N A
v
DAVID STRINGFELLOW
- - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - -
Mr P Taylor
appeared on behalf of the
Appellant
Mr M Aldred
appeared on behalf of the
Crown
- - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE MOSES: The issue in this appeal relates unfortunately to the taking of the verdict following a trial at Snaresbrook Crown Court. If the correct procedures are followed and everyone is attentive at that tense moment when a verdict is taken the sort of problems that have arisen in this case ought not to arise. There had been a trial of this appellant, Mr Stringfellow on a charge of conspiracy to supply a controlled class A drug. The verdict was taken on 13th July 2006. The appellant was sentenced to 16 years' imprisonment. It was therefore a very serious case in which it was alleged that this appellant was involved in the importation and delivery of a very large amount of pure cocaine. The arrest and subsequent alleged conviction of this appellant came after the drugs had been watched being driven in a lorry in this country.
2.
But the facts of this case do not matter since the essential question was whether the jury convicted this appellant by a majority or unanimously. The industry of Mr Taylor, who was not present at the trial, on behalf of this appellant has made the principles which apply in relation to the taking of a verdict plain. Those principles are well-known and stem from the provisions of
section 17 of the Juries Act 1974
. It is plain that where the jury give a majority verdict it is no acceptable verdict unless the foreman of the jury makes clear in open court the number of jurors who agreed to the verdict of guilty and the number of those who dissented - see
section 17(3)
. To that end there is a clear procedure set out in the Practice Direction (Criminal Proceedings: Consolidation)
[2002] 1 WLR 2903
to 2904.
3.
In the instant case it is contended that this court cannot be sure whether the verdict was unanimous or not. It is further contended that the verdict may well have been by a majority and in those circumstances accepted that the jury did not say how many had agreed on a verdict of guilty and how many dissented. Thus the essential question before us is whether the jury was unanimous.
4.
The matter arises as recorded in the transcript. We must here record the appreciation of this court to the conscientious way in which Mr Taylor has examined what happened in court. The original transcript was not accurate. By dint of his having listened again we now have an agreed and more accurate description of what happened. The clerk of the court failed to follow the correct procedure and it is undoubtedly that which led to the errors which arose. Had the correct procedure been followed we have little doubt that the problems apparent in this case would not have occurred. We would therefore stress the importance that where, understandably, a clerk may from time to time go wrong in the tension of the moment of taking a verdict, it is far better that one or both counsel interrupt and draw that to the judge's attention, or indeed the judge himself takes it upon himself to ask the clerk to take a deep breath and start again.
5.
The first question that he asked was:
"Members of the jury, have at least ten of your number agreed on your remaining verdicts?"
We pause to say that that does not follow the requirements of the cue cards given to the court clerks. The first question should have been: "Please answer my first question either 'Yes' or 'No'." The failure to follow that procedure led to an error straightaway because in answer to the question: "... have at least ten of your number agreed on your remaining verdicts?", the foreman replied: "A majority have". The clerk continued:
"Please answer my next question. Do you find the defendant David Anthony Stringfellow guilty or not guilty of conspiracy to supply a control drug of class A?
THE FOREMAN: Guilty.
THE CLERK: Guilty. Is that the verdict of you all or by a majority?
THE FOREMAN: By a majority.
THE CLERK: By a majority. How many of you agreed?
THE FOREMAN: Oh, sorry ['all' or 'oh' (indistinct)] All of us agreed.
THE CLERK: The verdict was unanimous. All 12 of you agreed?
THE FOREMAN: Yes.
THE CLERK: Thank you. You may all sit down."
6.
It is thus not difficult to see how the essential foundation of this appeal arises. Mr Taylor correctly points out that the very first response to the incorrect question from the clerk, namely "Have at least ten of your number agreed on your remaining verdicts", was that the verdict was a majority. By the end of the exchange when the foreman had said that the jury were unanimous, the clerk confirmed that and the foreman affirmed that confirmation. But the foreman had already twice said that the verdict was by a majority and had not dissented, at first, when the clerk said "By a majority". In those circumstances, Mr Taylor submits that this court cannot be sure, as it must, that the verdict was unanimous. Once this court is in the position of not being sure that the verdict was unanimous, this was an unlawful verdict. Not only the statute but the House of Lords in
R v Pigg
(1983) 76 Cr.App.R 79
support the proposition that it is a requirement of a lawful verdict that the jury say how many agreed and how many dissented (see the speech of Lord Brandon between pages 85 and 86).
7.
In order to resolve the all important question, therefore, we have to be sure that the verdict was unanimous. It is important, as Mr Aldred reminded us, to look at those responses, triggered as they were by the failure to follow the correct procedure, in the context of the giving of the verdicts as a whole. We must record that the jury returned to give the impugned verdict at 12.43 after a lapse of 11 hours and 46 minutes during their deliberation. But that was less than an hour before they had returned unanimous verdicts at 11.46 in respect of two co-defendants. Once they had returned two unanimous verdicts, the judge asked them to continue their deliberations and gave them a conventional and correct majority verdict telling them that he was able at that stage to accept a verdict which was not the verdict of them all but of at least 10. He made it clear, as the conventional direction states, that they should continue to seek to reach a unanimous verdict and only return a majority verdict if they were unable to do so. Less than one hour later they came back.
8.
As a result of the incorrect direction from the clerk to confine their answer to 'yes' or 'no', the first answer of the foreman was that it was a majority verdict. Quite what she meant by that may never be known. Mr Aldred suggests that she thought that once a majority direction had been given the verdict fell into a category of majority verdict. Whether that be right or not seems to us not to matter. The real question is whether we can be sure that the foreman corrected what she had earlier said. Twice she said it was a majority.
9.
Immediately after, when the clerk had repeated that the verdict was a majority, he asked how many were agreed. We are sure that the foreman at that stage, of her own motion, sought to correct that which she had earlier said. There is no other explanation for the apology, the "Oh, sorry". After the question "How many of you agreed?" the answer was clear: All of them had agreed upon the verdict of guilty. That explains the correction that the foreman sought to make. The clerk then confirms that: "The verdict was unanimous. All 12 of you agreed?" Response: "Yes", without any dissent then or afterwards. Of course, it would have been better had the matter been clarified, but it seems to us and must have been apparent to all counsel who were present at the time as well as to the judge, that by the end there was, as a result of the correction of the foreman, no ambiguity. All 12 of that jury had agreed upon the verdict.
10.
Sensibly, Mr Taylor draws to our attention the very ambiguity in the answer "All of us agreed". He says that is equally consistent, or at least there is more than a fanciful possibility that that is consistent, with the foreman saying that all of the majority had agreed and there is a precedent for that, for example, in the case of
Millward
[1999] 1 Cr.App.R 61. Furthermore, as Farquharson LJ made plain in that case, it is not for this court to seek to discover what the jury really meant in a case where there is an ambiguity. But, in our view the response to that submission lies in the very correction the foreman advanced. "All of us are agreed" might be ambiguous but was certainly not ambiguous once the jury foreman had made plain that she wished to correct something that she had said earlier. The only thing that she must have been seeking to correct, once she was asked about numbers, must have been her use of the word "majority". In the context of the earlier direction as to majority we can well understand how the mistake arose and why it was that the foreman felt it necessary to make a correction.
11.
In those circumstances, despite the clear and forceful submissions of Mr Taylor, we are satisfied so that we are sure that this was a unanimous verdict and accordingly the appeal is dismissed. | ```yaml
citation: '[2008] EWCA Crim 2825'
date: '2008-10-06'
judges:
- LORD JUSTICE MOSES
- MR JUSTICE TUGENDHAT
- HIS HONOUR JUDGE GILBERT 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:
[2014] EWCA Crim 1664
Case No:
201400921 A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 18th July 2014
B e f o r e
:
MR JUSTICE HAMBLEN
HIS HONOUR JUDGE BONEY QC
(Sitting as a judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - -
R E G I N A
v
LISA TRACEY BEAUMONT
- - - - - - - - - - - -
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 E Sareen
appeared on behalf of the
Appellant
Mr J Law
appeared on behalf of the
Crown
- - - - - - - - - - - -
J U D G M E N T
MR JUSTICE HAMBLEN: On 29th July 2013, at Reading Crown Court, the appellant pleaded guilty to two counts of fraud. On 6th September 2013 she was sentenced by His Honour Judge Grainger to 14 months' imprisonment suspended for 18 months, with a three month curfew requirement and 200 hours unpaid work on each count concurrently. On 24th January 2014 the same judge imposed a confiscation order against the appellant in the sum of £17,675.57 to be paid within six months with a period in default of nine months' imprisonment. The judge also imposed a compensation order against the appellant in addition to the confiscation order in the sum of £17,675.57 to be paid to Insite Managed Services Ltd within 18 months. Her co-accused were Jarrod Spence and his partner, Christina Rowland. Jarrod Spence pleaded guilty to two counts of fraud and was sentenced to three years' imprisonment on each count concurrently. Christina Rowland pleaded guilty to two counts of fraud and was sentenced to three years' imprisonment on each count concurrently.
1.
The appellant appeals against her compensation order by leave of the single judge.
2.
The essential facts may be briefly stated. Insite Managed Services Ltd was a commercial company owned and run by Neil Webb. The appellant's co-accused Spence worked at the company as the operations manager. The co-accused Rowlands' role in the company was to carry out administrative duties in connection to the payroll and non-salaried employees. This involved collating the time sheets from contract managers and informing the payroll company of who to pay.
3.
From 30th June 2009 to 2nd March 2012 Spence and Rowland fraudulently claimed payments for employees which were not owed. They received a total of £269,000. The appellant became involved in January 2011 until the discovery of the fraud in March 2012. Her role was to assist in concealing the fraud. She received a total of £17,675.57 paid to her by Spence and Rowland. Eventually suspicions were aroused and Spence and Rowland were suspended pending investigations on 2nd March 2012. On 17th April 2012 the appellant confessed her role to Webb. She was arrested on 19th April 2012.
4.
The confiscation order was agreed in the amount of the appellant's benefit, £17,675.57. In addition to that order, the Crown also sought a compensation order in the same amount. The appellant's available assets were £54,000, representing 50 per cent of the equity in her home jointly owned with her long-term partner, and the then sum of £12,040.20 in a joint bank account.
5.
The Crown submitted that the judge was precluded from directing that the compensation order be paid out of the confiscation order monies pursuant to section 13(6) of the Proceeds of Crime Act 2002("POCA") because the appellant had sufficient means to satisfy both orders. The judge accepted this submission and accordingly made the two separate orders.
6.
The appellant challenges this finding. It is contended that her means for the purpose of the compensation order are very limited because she no longer has any income from her employment, that it would be practically impossible for her to pay both a confiscation order and a compensation order in the same amount, that the judge therefore did have the power to make a section 13(6) order and that the justice of the case is that such an order ought to be made.
7.
Sections 13(5) and (6) of POCA provide that:
"(5) Subsection (6) applies if -
(a) the Crown Court makes both a confiscation order and an order for the payment of compensation under section 130 of the Sentencing Act against the same person in the same proceedings, and
(b) the court believes he will not have sufficient means to satisfy both the orders in full.
(6) In such a case the court must direct that so much of the compensation as it specifies is to be paid out of any sums recovered under the confiscation order; and the amount it specifies must be the amount it believes will not be recoverable because of the insufficiency of the person's means."
8.
This is a case in which, though the period over which the offences had been committed engaged the lifestyle provisions of POCA, the Crown did not allege that the appellant had profited from crime to any greater extent than the gain from the offences on indictment and put the total benefit figure at the sum that she admitted was transferred to her by Spence and Rowland, namely £17,675.57.
9.
In such a case the Court of Appeal decision in
R v Morgan and Bygrave
[2009] 1 Cr App R (S) 60
is of relevance. In that case the second appellant, Rosemary Bygrave, was an accounts clerk who had, over a period of some 18 months, stolen a total of £12,768 from her employers. By the time of the sentencing hearing she had borrowed sufficient money against her home to be able to repay the sum. The Crown applied for confiscation and compensation orders and did not tell the judge that he had the power to make the latter payable out of sums recovered under the former. The judge declined to make both orders because he was concerned not to order the defendant to pay twice the sum she had stolen and so he made the confiscation order only. In their judgment the Court of Appeal stated as follows:
"What the Judge wanted to do, we are satisfied, was to achieve a result in which the defendant was not required to pay more than the sum she had stolen. That was the correct approach because there was here, unlike many other cases, no hint of a suggestion that the defendant's benefit, for the purposes of
POCA 2002
, exceeded what she had stolen from her employers. In particular, although this was, by statute, a criminal lifestyle case, because the defendant had been convicted of three or more offences from which she had benefited (section 75(2)(b) & 75(3)), there was no suggestion that any of the statutory assumptions available under section 10 ought to be applied in her case to show a benefit greater than the total of the thefts to which she pleaded guilty. Given that, we consider that if the judge had been afforded the opportunity to think about it, he would have regarded this as a clear case in which the interests of the losing employers should prevail over those of the taxpayer generally, so that, if legally possible, the defendant's ill-gotten gains should be disgorged in the direction of the losers rather than into the public purse. This was entirely possible legally. The route is signposted by subsections 13(5) and (6). What justice required in this case was an order under section 13(6) for the losers to be paid their compensation out of the confiscation order. That was open to the Judge, since on the evidence, Miss Bygrave did not have the means to pay both confiscation and compensation."
10.
On this appeal the position of the Crown is that their priority is to ensure that the victim in the case receives the maximum amount of compensation in satisfaction of the order made. Since the basis of the relief sought in the appeal is limited to a section 13(6) order, which does not seek to disturb either confiscation or compensation orders, their position in relation to the appeal is essentially neutral.
11.
For reasons similar to those outlined in the
Bygrave
case, we consider that the justice of the case supports the desirability of an order under section 13(6). However, for such an order to be made the court needs to believe that the appellant will not have sufficient means to satisfy both orders in full.
12.
In the present case the appellant did not have the means to satisfy both orders out of income and savings. Her only savings at the time of the confiscation hearing was a joint bank account which then held £12,000. She had not been employed since April 2012 and, having lost her good character through the commission of the offence, the prospects of her obtaining significant income in the future were slight. She did, however, have a £50,000 equity share in the family home jointly owned by her. It was this which led the judge to conclude that she had sufficient means to satisfy both orders.
13.
The judge did not, however, have drawn to his attention a line of cases concerning compensation orders in which it has been held that it is not generally appropriate to make a confiscation order which can be satisfied only by the selling of the family or matrimonial home.
14.
Although it predated POCA, the case of
Hackett
[1988] 10 Cr App R (S) 388
concerned an appellant who defrauded a company of which he was a manager of around £15,000. He and his wife owned jointly a house worth around £80,000, of which there was an outstanding mortgage of about £32,000. He had no other significant assets. The judge who sentenced him ordered him to pay £15,000 in compensation. Henry J, giving the judgment of the Court of Appeal, said:
"The learned judge was not referred to the line of decisions in this Court where the Court has dealt with the question of when a compensation order will or may require a matrimonial home to be sold. In the case of
Harrison
(1980) 2 Cr App R (S) 313
(CA) this Court said that because of the complications involved with the matrimonial home, particularly when it was in joint names, as a general rule the matter should be left to the civil remedies of the injured party. In the case of
Blackmore
(1984) 6 Cr App R (S) 244
(CA) the Court said it was unreasonable to make a compensation order that would necessitate the sale of the matrimonial home where there was a large family involved that would have to be found accommodation. It again said that civil remedies were appropriate. In the case of
Butt
(1986) 8 Cr App R (S) 216
(CA) it was said that such an order was generally inappropriate, especially when it resulted in homelessness."
17.
In
Holah
[1989] 11 Cr App R (S) 282
, Farquharson J, giving the judgment of the Court of Appeal, noted that
section 134
of the
Powers of Criminal Courts (Sentencing) Act 2000
“enjoins the court to have regard to a defendant's means” when contemplating a compensation order. He outlined the defendant's financial position and then had regard to the line of cases concerning compensation orders and the matrimonial or family home. He said this:
"In that kind of situation the courts have said on a number of occasions that it is inappropriate by way of compensation order to order the sale of a family house in this way. There may of course be exceptional circumstances where money obtained by fraud can be traced to an investment in the purchase of a house. Then it may be that different considerations would apply. But in ordinary circumstances this course should not be taken. There have been a series of decisions including that of
Harrison
...
Blackmore
... and
Butt
.... There is also a discussion of this court,
Hackett
... decided on October 13, 1988, where Henry J giving the judgment of the court repeated the reasons that have always been emphasised by this Court why that kind of order should not be made."
15.
This line of authority provides support for the proposition that where a compensation order is likely to require the matrimonial or family home to be sold, it will not generally be appropriate to take into account the value of that home when assessing a defendant's means under
section 130
of
the 2000 Act
. We consider that, in general, a similar approach is justified where the court is considering the defendant's means for the purpose of section 13(5) and (6) of POCA.
16.
In the present case it can be inferred on the evidence that the compensation order is likely to require the sale of the family home. At the time of the confiscation hearing the appellant had no present earned income and had no real prospect of future income. We have been provided with updated information relating to her financial situation by her counsel today. It appears that the sums in the joint account are now only approximately £4,500. It also appears that the limited income earned by her partner is not, by some considerable amount, sufficient to meet the household outgoings. The home, which has been a joint home since it was purchased in 1987, is the home not only to the appellant and her partner, but also to her two adult sons and, from time to time, their grandchildren.
17.
On the basis of what is currently in her joint account, in order to meet the confiscation order a further sum of £12,000 will need to be found. To require the appellant to find that further £12,000
and
a further £17,000 from the equity in her home is, for a person with no income and considerable household outgoings, likely to require the sale of the family home. On the facts of this case it can accordingly be concluded that the value of the family home should not be taken into account when assessing the appellant's means for the purpose of section 13(5) and (6). If so, then there is good reason to believe that the appellant will not have sufficient means to satisfy both orders in full and that a section 13(6) order can and should be made, and we consider that it should be made for the full amount of the confiscation order sum.
18.
We accordingly vary the confiscation order pursuant to section 36 so that monies paid under the confiscation order in the same amount are used to satisfy the compensation order. To that extent, this appeal is allowed. | ```yaml
citation: '[2014] EWCA Crim 1664'
date: '2014-07-18'
judges:
- MR JUSTICE HAMBLEN
- HIS HONOUR JUDGE BONEY 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
CASE NO 202302004/A2
[2023] EWCA Crim 965
Royal Courts of Justice
Strand
London
WC2A 2LL
Friday 28 July 2023
Before:
LORD JUSTICE DINGEMANS
MR JUSTICE JEREMY BAKER
SIR ROBIN SPENCER
REX
V
MARIA SAVASTANO
__________
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 C HUDSON
appeared on behalf of the Appellant.
J U D G M E N T
1.
SIR ROBIN SPENCER: This is an appeal against sentence, brought by leave of single judge.
2.
On 15 June 2023, in the Crown Court at Preston, the appellant, who is now 42 years old, was sentenced by HHJ Mathieson to a term of 5 months' imprisonment, for an offence of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861. She had originally been charged with unlawful wounding, contrary to section 20 of the Act, but on 24 March 2023, in advance of a trial which would otherwise have taken place, she entered a guilty plea to the alternative offence of section 47 assault. The case had then been adjourned for the preparation of a pre-sentence report.
3.
The sole, or certainly principal, ground of appeal is that the sentence of imprisonment should have been suspended. We say at the outset that we are grateful to Mr Hudson for his written and oral submissions and, if we may say so, for the compassion he has shown in the way in which he has gone the extra mile in looking after the appellant's interests in relation to domestic matters, as we shall explain.
4.
The offence was committed on 11 May 2020, nearly 3 years before the appellant was sentenced. The victim of the offence was a police officer. The offence arose from an unpleasant domestic incident at the appellant's then home in Blackpool. The appellant and her partner were living at that address with two young children and also with the appellant's much older daughter. The two children were very young, 2 and 4, at the time. The 22-year-old daughter living with them had what was clearly a tempestuous and volatile relationship with her mother and there had been a history of the police being called out by the daughter to domestic incidents at the property. That was the background to the offence on 11 May, when the police responded to a report of a further domestic incident.
5.
PC Dala attended, in company with an NHS employee, Claire Bennett, who was an advocate educator specialising in domestic violence. When they arrived at the house that lunchtime, they found the 22-year-old daughter outside in her dressing gown, looking upset and tearful. She explained that her mother, the appellant, had locked her out of the house and would not let anybody in. The appellant was inside the property. PC Dala could hear her saying: “What have you fucking done, you slut?”
6.
There was a porch area before reaching the front door. PC Dala entered the porch and found the front door closed. Speaking to the appellant through the closed door which was glazed with frosted glass, he explained that there had been a report that someone had been assaulted and demanded that the door be opened or he would have to kick it in. The appellant shouted, apparently at her daughter: “Get away, you're not coming in. Look what you've fucking done”. The appellant, who was in her dressing gown, then came out into the porch and lurched towards the police officer, with arms outstretched and palms open, and pushed him out of the porch. He stumbled back but steadied his footing. The appellant went for him again, with arms outstretched . He pushed her back into the hallway in an attempt to prevent any further assault and told her he was arresting her for assault on the police.
7.
This clearly enraged the appellant further. The officer described her as incandescent with range. She gritted her teeth, looked the officer in the eye and struck him several times to the back of the head with a TV remote control. The NHS employee described her raining blows on the police officer's head.
8.
In order to restrain her, the officer forced the appellant against the wall in the hallway with his forearm across her chest. The appellant then bit down onto the officer's right forearm for 2 or 3 seconds, clenching her teeth around his arm . She did so with sufficient force to penetrate the skin and cause a wound. The officer managed to push her away. He was still trying to effect an arrest. The appellant told him she was pregnant. She retreated for a short time into the property and then returned with a Staffordshire bull terrier which she was holding by the collar.
9.
Eventually, with the assistance of other officers who had arrived, the appellant was arrested and handcuffed. As she was escorted to a police vehicle, she continued to abuse the officer in question in obscene terms. He was naturally concerned that she had bitten him, bearing in mind that this was taking place in the early stages of the pandemic when Covid was at its height. He asked the appellant whether she had any symptoms of the Covid virus, to which she replied: “Yes, I'll fucking cough on you”.
10.
The officer sustained a nasty bite wound to his arm. We have seen the photographs. His forearm swelled up around the wound like a lump. He describes the bite as going deep into the muscle tissue. It was very tender and sore, and the wound was weeping for almost a week. He was immediately taken that day to the Accident & Emergency Department of the local hospital in Blackpool and then subsequently treated at a local medical centre as an urgent case. He was prescribed a course of strong antibiotics followed by an accelerated course of injections to protect against hepatitis. He was understandably very concerned about the risk of infection from Coronavirus or otherwise.
11.
The appellant, as we have indicated, was charged with section 20 wounding and the case was sent to the Crown Court for trial. The appellant served a lengthy defence statement challenging much of the police officer's account. For example, she contended that she had bitten him only because she was struggling to breathe when he had his forearm across her throat. She bit him to force him to release his grip so she could breathe again. However, the account of the police officer, which was very different, was supported by the NHS worker who had been present and witnessed the incident.
12.
At the PTPH hearing on 13 January 2021, she entered a not guilty plea to the count of section 20 wounding and the case was adjourned for trial to 6 September 2022, some 20 months ahead. As we understand it, this delay was partly because she was then pregnant, or had recently given birth. There was also a problem because of the court delays owing to the pandemic. There were then further complications because of the Bar action. In the result the trial could not go ahead on the date that had been fixed. It was adjourned again to 21 March 2023 for a pre-trial review, which the appellant failed to attend through lack of funds. The case was listed again before Judge Mathieson on 24 March 2023 and it was on that occasion that the appellant entered her guilty plea to the section 47 assault. There was no basis of plea relied upon when she entered that guilty plea.
13.
The appellant had only one previous conviction, dating back to 2008, for producing a controlled drug of Class C, for which she had made been made the subject of a community order. There was a pre-sentence report. By then, as we say, the appellant had a further child. When interviewed by the probation officer the appellant expressed no remorse for what she had done, despite the passage of time and despite her guilty plea. She said that she had only bitten the officer because she felt threatened; indeed, she went as far as to say she would do it again if she found herself in a similar situation. The probation officer noted that she expressed significant hostility toward the officer, telling the probation officer: “If I could have got my hands into his beard, I would have ripped it off”. She expressed similar hostility towards the other officers who had attended in order to arrest her, saying that if she had not been handcuffed at the time of her arrest she would have “torn the face off” the female officer who was present. The pre-sentence report observed that these comments were of significant concern and fitted into a bigger picture of entrenched hostile attitudes towards the police. She was still denying threatening to cough on the officers, saying that it was only bravado if she had said something to that effect. The report acknowledged that a sentence of imprisonment would be in the court's mind, but recommended, in the alternative should it be possible, a community-based sentence.
14.
In passing sentence, the judge referred to the passages in the pre-sentence report which indicated the appellant’s complete lack of remorse. We note that, during the course of his sentencing remarks, when he referred to the comments she had made about ripping off the officer's beard , she nodded, as if still approving of what she had said she would do. In his submissions this morning, Mr Hudson has been able to tell us that the appellant was certainly belligerent in court towards the judge when he was passing sentence.
15.
The judge took the view that it was a category B2 offence under the relevant Sentencing Council guideline, with a starting point of 9 months' custody and a range of up to 18 months. He had no doubt at all that the offence crossed the custody threshold. The only question was whether the sentence of imprisonment could be suspended. The judge considered a number of mitigating factors. In particular, there was the long delay which was due in part to her pregnancy and the birth of the new baby and the other matters to which we have referred. The judge identified and weighed up the competing factors under the suspended sentence guideline for and against suspension. He had regard to the impact of an immediate custodial sentence on others, in particular, those who would have to look after the children, but he expressed the hope that arrangements had already been put in place. One of the points Mr Hudson has made to us in writing and again in his oral submissions is that in fact no such arrangements had been made. The appellant arrived at court in company with two of the three young children under 8 years of age, with no arrangements having been made at all for how they would be looked after in the event of her receiving a custodial sentence that day.
16.
The judge considered whether there was a realistic prospect of rehabilitation. He was satisfied there was not, having regard to her entrenched hostility towards the police and lack of remorse referred to in the pre-sentence report. He considered that she presented a risk of danger to police officers going about their lawful duty. He was satisfied that appropriate punishment could only be achieved by the imposition of an immediate custodial sentence. From the guideline starting point of 9 months, the judge reduced the sentence to 5 months' imprisonment to reflect such personal mitigation as there was, in particular the delay and her eventual guilty plea.
17.
On behalf of the appellant, Mr Hudson submits that the judge should have suspended the sentence and that he failed to take into account several matters.
18.
First and principally, he submits that the appellant was, and is, the sole carer for three young children. She has been separated from the children since her incarceration and indeed we are told she has had no contact at all with them, which we understand to mean not even phone contact. Contrary to the judge's expectation, arrangements had not in fact been made for the children but were soon put in place. We have been told that the current position is that the three children, under the age of 8, are living with the appellant's former partner at his sister's address. The information has been updated helpfully in a further probation report and by conversations Mr Hudson has had with the author of that report. There are no particular concerns about the welfare of the children. There is, however, a very unfortunate history of bad blood between the appellant and her ex-partner, to the extent that he is currently on bail for an allegation of domestic abuse towards her, with a condition that he should not approach her.
19.
The second matter relied upon in the grounds of appeal is that the appellant had only one previous unrelated conviction and that was many years ago.
20.
Third, there was a very lengthy delay in her being sentenced, nearly 3 years. During that time, she had committed no further offence. It is said that the judge ignored that in concluding that she was beyond rehabilitation.
21.
Finally it is said that the appellant’s personal mitigation was not sufficiently reflected even by the reduction in the length of the sentence that the judge made.
22.
It is submitted that all these points should have been reflected by suspending the sentence in all the circumstances, having regard also to the guilty plea.
23.
In his written submissions, Mr Hudson drew attention to the well-known authorities on the approach to sentencing mothers of young children, in particular the case of
R v Petherick
[2012] EWCA Crim 2214; [2013] 1 Cr App R(S) 116, and also to the more recent decision of this Court in
R v Rescorl
[2021] EWCA Crim 2005, in which, amongst other things, the Vice-President of the Court of Appeal (Criminal Division), Holroyde LJ, stressed the importance of carers for children not relying on their own failure to make proper care arrangements, which may result in their children having to be taken into the care of the local authority, as a reason for not imposing an immediate custodial sentence, where such a sentence is necessary.
24.
We have considered the up-to-date information provided to us. Although the appellant has expressed concern about the standard of the father's care of the children, we are satisfied that this is being monitored closely by the relevant authorities, in particular the family's social worker. It is clear that there is a background to this case which is likely to exercise the family court in one way or another.
25.
The appellant herself still has a local authority tenancy in the Middleton area of Manchester which is not at risk despite her sentence. The tenancy will still be available to her. There is a problem with that address in that the locks would have to be changed if she goes back there with the children because otherwise there would be a risk that her ex-partner might come into the property. So things are not straightforward. In fact, the appellant is now eligible for home detention curfew. That seems to have been postponed hitherto in part because of the uncertainty surrounding the accommodation she would go to on release.
26.
We are grateful to Mr Hudson for his written and oral submissions. However, we are not persuaded that the judge was wrong to impose an immediate custodial sentence rather than a suspended sentence. This was a serious offence of its kind, involving an assault on a police officer carrying out his duty. That was an aggravating factor, which under the guideline would have justified a significant increase from the starting point of 9 months' custody. It was also an aggravating factor that the appellant's 2-year-old child was present in the house and must have witnessed at least some of the incident although there is no mention of the other child who apparently would have been somewhere in the house at the time. There was, of course, mitigation in the lack of any previous conviction for violence, in the delay and in the fact that the appellant was the primary carer for three young children. The judge did not specify the level of credit he was affording for her late guilty plea, but she would not have been entitled to more than 20 per cent at most. In our view, the sentence of 5 months, substantially reduced from a starting point of 9 months under the guideline, amply reflected all the available mitigation.
27.
We note that the judge worked through the exercise of weighing up the factors for and against suspension by reference to the Sentencing Council guideline.
28.
In favour of suspension was the impact that immediate custody would have on the children and on those having to look after the children in the appellant's absence. The judge was entitled to take the view that the prospects of rehabilitation were undermined by her continuing attitude of hostility towards the police and her lack of remorse. There was no other strong personal mitigation apart from the delay.
29.
The factors against suspension were the risk of further violence towards the police. This was tempered by the fact that in the intervening 3 years there had been no repetition. The principal factor militating against suspension was the judge's conclusion that appropriate punishment could only be achieved by immediate custody. It is well-known that in the case of assaults on police officers this has generally been the position historically. The seriousness of this particular assault, with the additional risk to health during the pandemic from a bite wound, fully justified the judge's conclusion that only immediate custody would afford appropriate punishment. As this Court has regularly emphasised, and as the guideline makes clear, it is for the sentencing judge to weigh the competing factors. It is not a question of numbers. Here the judge was entitled to conclude that the need for appropriate punishment outweighed the mitigating factors.
30.
We therefore are quite satisfied that, despite Mr Hudson's able and attractive submissions, the sentence the judge imposed was neither manifestly excessive nor wrong in principle. The appeal must therefore be dismissed.
31.
We note, again, that the appellant has already served the equivalent of 3 months of her 5-month sentence, and will soon, no doubt, be not merely eligible for home detention curfew but able to take advantage of that once the housing arrangements have been made. We are quite sure that a managed return to the community under the auspices of the prison service in conjunction with the probation service and social workers for the family is much the best way forward in her interests and in the interests of the family generally. We trust that she will receive the necessary support on her release to effect a speedy reunion with her children in whatever form is appropriate.
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 965'
date: '2023-07-28'
judges:
- LORD JUSTICE DINGEMANS
- MR JUSTICE JEREMY BAKER
``` |
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 922
Case No:
200803394/C4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Wednesday, 22 April 2009
B e f o r e
:
LORD JUSTICE HOOPER
MR JUSTICE DAVID CLARKE
HIS HONOUR JUDGE ROBERTS QC
(Sitting as a Judge of the Court of Appeal Criminal Division
)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
RAHILA KAUSAR
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr S Farrell QC and Mr W J Jones
appeared on behalf of the
Applicant
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE HOOPER: This is a renewed application by Rahila Kausar to appeal against her conviction of acquiring criminal property contrary to
section 329(1)
(a) of the
Proceeds of Crime Act 2002
.
2.
At the start of today's proceedings we asked Mr Farrell QC, who appears for the appellant along with Mr Jones, to reconsider some of the grounds of appeal upon which reliance was going to be placed and to consider whether further grounds of appeal might be necessary. Mr Farrell has now produced a document containing four grounds of appeal. We give leave on those four grounds.
3.
The issue raised by the case can be simply stated, whether it is appropriate, either in law or in practice, for the prosecution to use the offence of acquiring criminal property contrary to
section 329(1)
(a) of the
Proceeds of Crime Act 2002
as against the person who is alleged to have obtained the property by deception. We invite the Crown Prosecution Service to be ready on the hearing of this appeal to give such assistance as they are able to do so to the court on the use of this section in the circumstances of this case against this particular appellant.
4.
We have granted legal aid for Mr Farrell QC and for Mr Jones. Mr Jones did the trial and Mr Farrell has convinced us that Mr Jones may be of assistance to him in the preparation of and hearing of this appeal given that this was a trial which involved a number of other defendants and a number of other issues. However, we make it clear that the assessment officer when considering the taxation of any fees should take into account that Mr Jones need now do very little additional legal work because Mr Farrell and Mr Jones have together already done that.
5.
We have ordered Mr Farrell to produce a new skeleton argument, which should be headed "final skeleton argument", and should make it clear in the document that it is not necessary to refer to any other document. I reserve this case for myself unless that is impractical.
6.
LORD JUSTICE HOOPER: Mr Jones, who prosecuted in the court below?
7.
MR JONES: Malcolm Morse, my Lord, leading Miss Saleena Mahmood. Both from Midlands Chambers.
8.
LORD JUSTICE HOOPER: Would you draw to his attention what I have just said?
9.
MR JONES: My Lord, certainly. We are in contact still.
10.
LORD JUSTICE HOOPER: The court will need considerable assistance in this area.
11.
The only thing I want to add is that presumably the textbooks have start trying to analyse this offence. Smith and Hogan.
12.
MR FARRELL: Yes, they have.
13.
LORD JUSTICE HOOPER: Any academic writings from any of the book that have looked at this will again be of assistance.
14.
MR FARRELL: When you say "this" do you mean --
15.
MR JUSTICE DAVID CLARKE: The use of this section on facts of this sort.
16.
LORD JUSTICE HOOPER: Thank you.
17.
MR FARRELL: As I say, I will lodge the skeleton in seven days.
18.
LORD JUSTICE HOOPER: Everyone agrees, is it right, that what is called the predicate offence is obtaining by deception.
19.
MR FARRELL: Yes, obtaining money through -- now, of course, it would be a Fraud Act offence which would simply be the making of a dishonesty representation. But because of the date of this offence the underlying predicate offence is obtaining a money transfer by deception contrary to section 15A of the Theft Act.
20.
LORD JUSTICE HOOPER: With the consequences that one has to understand that offence before one can get into the acquiring.
21.
MR FARRELL: Yes. There is, of course, the interesting case of
Rose
, where the issue has been engaged already, as to if I steal a cycle do I possess criminal property that was not criminal before I got it. There is very strong authority that I do possess criminal property even if it is legitimate before I got it.
22.
LORD JUSTICE HOOPER: Thank you very much.
23.
JUDGE ROBERTS: There might be an important distinction between the present position, where it would be charged as an offence under the Fraud Act, and a section 15A offence, because a section 15A offence presumably is not completed until the precise moment at which the prosecution in this case say your client committed an offence under POCA and it seems as little bit off where it can't be criminal property until that moment that you should be said to be guilty under POCA.
24.
MR FARRELL: Yes, it's very interesting because at what point is the underlying offence completed. Presumably it's not when the deception is operative. It's when the property is transferred to you because it is obtaining property, money transfer by deception.
25.
LORD JUSTICE HOOPER: The two offences are committed, if they are committed --
26.
MR FARRELL: Therefore you get the position that two criminal offences come into the existence at exactly the same time on these particular facts with different issues arising in respect of them. And if we are right on that consideration then you have to go on and consider that as well. It is an interesting point. But certainly if I there are any academic writings I will do a trawl and include them. | ```yaml
citation: '[2009] EWCA Crim 922'
date: '2009-04-22'
judges:
- LORD JUSTICE HOOPER
- MR JUSTICE DAVID CLARKE
- HIS HONOUR JUDGE ROBERTS 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}
======
| Case No:
20120587 C5
Neutral Citation Number:
[2013] EWCA Crim 2043
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM TRURO CROWN COURT
His Honour Judge Cottle
T 20117144
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
19/11/2013
Before :
LORD JUSTICE McCOMBE
MR JUSTICE WYN WILLIAMS
and
MRS JUSTICE PATTERSON
- - - - - - - - - - - - - - - - - - - - -
Between :
Kevin John WELLS
Appellant
- and -
REGINA
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr WPL Sellick
(instructed by
Tuckers LLP
) for the
Appellant.
Miss A McCarthy
(instructed by
Crown Prosecution Service
) for the
Respondent
Hearing date : 5th November 2013
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice McCombe:
1.
On 21 September 2012 in the Crown Court at Truro, after a trial before HHJ Cottle and a jury, the appellant was convicted of a number of sexual offences. He was tried upon an indictment containing 15 counts. The principal complainants were sisters, whom we shall call H and V. H was born on 22 November 1989 and V, her elder sister was born on 14 May 1986. Their mother, whom we shall call J, was the complainant in respect of a single charge of indecent assault (count 15 on the indictment) to which the appellant pleaded guilty on 28 March 2012, some 6 months before the trial of the principal charges.
2.
The appellant was born on 9 December 1983. The complainants and the appellant were neighbours and the events in question spanned a period between 1997 and 2001 when H was aged between 8 and 10 years old and V was aged between 11 and 14. At that time the appellant was between 14 and 16 years old. At the time of trial the appellant was 29 and the complainants, H and V were aged 23 and 26 respectively.
3.
At the conclusion of the trial the appellant was convicted (by majority verdicts, 10:2) on counts 1 to 4 and 11 to 13 of indecent assault contrary to
s.14(1) of the Sexual Offences Act 1956
, on counts 5 and 6 of indecency with a child contrary to
section 1(1) of the Indecency with Children Act 1960
and on counts 7 to 10 of rape contrary to
section 1(1)
of
the 1956 Act
. The appellant was acquitted on two counts of indecent assault on V, one count by the jury and on the other on the direction of the Judge.
4.
On 18 October 2012 he was sentenced by the Judge on counts 7 to 10 (rape) to 7 years imprisonment on each count concurrent, on counts 1 to 4 and 11 to 13 (indecent assault) to 3 years imprisonment on each count concurrent, on counts 5 and 6 (indecency with a child) to 3 years imprisonment on each count concurrent and on count 15 to 6 months imprisonment. All the sentences were ordered to be served concurrently to the rape sentences, giving rise therefore to a total term of imprisonment of 7 years imprisonment, with 28 days spent in custody on remand to count towards the sentence.
5.
The appellant now appeals against conviction and sentence by leave of the SJ.
6.
The appeal against conviction turns upon procedural matters arising following the appellant’s failure to attend his trial on the fixed start date of 17 September 2012. In circumstances to which we shall return, the trial proceeded in the appellant’s absence until his arrest over the night of Wednesday/Thursday, 19/20 September, when he was arrested on a bench warrant and was brought to court at about 1300 hours on the Thursday.
7.
The grounds of appeal against conviction are that (1) the Judge erred when he ruled on Tuesday, 18 September that the trial should proceed in the appellant’s absence; (2) the Judge erred on Wednesday, 19 September when he directed the trial to proceed, when information was received that the appellant may have attended a Job Centre in Birmingham on the previous day; and (3) the Judge erred on Thursday, 20 September when he declined either to order a re-trial or, in the alternative, to direct that the Crown witnesses be re-called to be cross-examined.
8.
In view of the issues now arising, it is unnecessary to say more about the underlying facts of the matters charged. What matters is the history of the proceedings pre-trial and what happened when the appellant failed to appear on the first day.
9.
The Plea and Case Management Hearing was held on 28 March 2012 before HHJ Clark QC, when the appellant pleaded guilty to count 15, and his trial on the remaining counts was fixed for Monday, 17 September 2012 with an estimated length of 3-4 days.
10.
When the appellant failed to attend on the first morning, counsel, Mr Sellick (who appeared for the appellant then as now) informed the Judge that there had been correspondence sent to the appellant and that three weeks previously there had been telephone contact between the appellant and the solicitors acting, who had been told by the appellant that he intended to travel to Cornwall over the weekend prior to trial so that he would not be late arriving. The Judge was told expressly that the appellant certainly knew the trial date.
11.
All were under the impression that the appellant was living at a YMCA hostel. Calls to his mobile telephone were going directly to the voicemail. Enquiries were made to try to ascertain the appellant’s whereabouts and at 1108 hours the Judge was told that the solicitors had been to the hostel but had been told that the appellant had been evicted from that property in the light of the charges that he was facing. The hostel managers told the solicitors that the appellant had told them that he was going to live with “an ex.” and that he came back from time to time to collect mail. The new address was unknown to them. Counsel informed the Judge that his instructing solicitors considered that they may have been deceived by the appellant and were considering withdrawal from the case. Mr Sellick confirmed to the Judge that the appellant “clearly” knew the trial date. A bench warrant was issued and a further address was mentioned, being that of a person believed to be an ex-girl friend, which Mr Sellick was able, on instructions, to communicate to the court.
12.
On the following day, Tuesday 18
th
September, the appellant again failed to attend. Attempts to find the appellant had met with no success. The prosecution applied for the trial to commence in the appellant’s absence. The application was opposed on the basis that there was information that the appellant was due to attend at a Job Centre in Birmingham at 4 p.m. that day, in accordance with his standard fixed appointment. Arrangements were being made for police to attend to apprehend the appellant at that time.
13.
The Judge recognised that he had discretion in the matter and addressed the questions that, on the authorities, were required to be asked before proceeding in a defendant’s absence. He said that, in his view, the discretion to proceed should be exercised only in “rare and exceptional cases” (i.e. the phrase used by Rose LJ, the Vice-President, in
Hayward
[2001] QB 862
). He recognised that an adjournment might lead to the appellant being caught. He considered, however, the length of the adjournment that might be required and said that a re-listing might postpone the trial for many months. He recognised the danger of a jury drawing adverse conclusions from the appellant’s absence and the duties that lay upon him to direct the jury accordingly. He referred to the interest of the public and of the complainants in proceeding with a long-fixed trial date. Balancing those factors, the Judge decided that the trial should start. It was decided that the trial would proceed, in the first instance, to the point where the case had been opened and the complainants’ video evidence had been played. It was thought that that would take up time up to the late afternoon of that day. It was recognised that the appellant might be apprehended during the day and so be present for the rest of the trial.
14.
On the following day (Wednesday, 19
th
), the appellant was still not present. The court was told that he had indeed attended the Job Centre, but much earlier in the day than his customary appointment, on the basis that he had informed the Centre that he had a job interview in the afternoon.
15.
It was by then becoming apparent that Mr Sellick and his solicitors felt obliged to withdraw from the case. No doubt as a result of this, Mr Sellick raised with the Judge a particular matter arising out of the recorded evidence of H that he would have wished to explore in cross-examination. This related to an answer, given by H in her recorded interview, suggesting that she understood that her mother (J) and V had experienced sexual abuse from someone other than the appellant in the past and possibly felt guilty because they should have realised at an earlier stage that H had also been abused. Mr Sellick did not at that stage refer to an aspect of H’s evidence, of perhaps more importance, to which we shall have to return a little later in this judgment. Indeed, he made no other reference to subjects that might properly form the subject of questions for the Judge to pose to the witnesses in his absence.
16.
Shortly after that discussion, Mr Sellick stated that both he and his instructing solicitors felt obliged to withdraw from the case, in accordance with their respective professional rules.
17.
The trial continued. The Judge questioned H, in the jury’s absence, about the matter arising out of her recorded evidence about which Mr Sellick had been concerned. Having done this and having considered further the position with Miss McCarthy for the Crown, it was decided (for reasons that are not clear to us) that that particular matter should not be explored with H before the jury, as it did not appear to be in the appellant’s interest to do so. The jury returned to court and the Judge asked some questions of H. He asked her why she had not complained about the alleged abuse by the appellant until 2009, many years after the events. Her explanation was that she had been scared to do so. The Judge put to H, the appellants’ denial of the abuse in his interviews with the police. H refuted those denials.
18.
V gave evidence in chief before the jury and was questioned by the Judge, again as to the lateness of the complaints and on the basis of the appellant’s denial of abuse on her in his police interviews. Again, the answers were that she would have been scared and embarrassed to complain and that the appellants’ denials of wrongdoing were false.
19.
The court adjourned for the day. When it reconvened on the following morning (Thursday, 20
th
), the Judge was told (at 1104 hours) that the appellant had been arrested and was on his way to court. He was expected to arrive at about 1300 hours. Mr Sellick had attended once more and indicated the obvious desire to take instructions once the appellant arrived at court. The Judge made it immediately clear, as he did at various times thereafter, that he was not willing (in his words) to “wind the clock back”, absent a good explanation from the appellant for his non-attendance on the first 3 days of the trial. Mr Sellick put to the Judge that judicial questioning of the witnesses for the Crown was not the same as cross-examination by counsel for the accused. No express reference was made to the possibility of having the complainants re-called for full-cross examination. The Judge repeated that he was not going to “wind the clock back”. He indicated that, absent proper excuse for non-attendance, he was inclined to allow the appellant to “re-join” the trial at the stage which it had reached, i.e. by giving his own evidence, if he so wished, and being cross-examined on it. Mr Sellick said to the Judge that he could not be at the court the following week and the Judge said that he was in the same position. The reasons for this were not explored. It does not seem that any enquiry was made at that stage about whether the witnesses could be recalled or what the reasons were why, if that course was taken, the trial could not continue into the following week.
20.
Mr Sellick anticipated that he might have instructions to apply to discharge the jury. He said,
“I do not think that will take very long and I can imagine the result, but I may, for the sake of form, have to make that application…”
No enquiries seem to have been made at that stage about the listing position for an early re- trial if the jury was discharged.
21.
The court then adjourned for the mid-day break and at 1415 hours the appellant was produced in court, no doubt after Mr Sellick had taken instructions. It then emerged that at one stage before trial, the solicitors had written to the appellant telling him wrongly that the trial date was in December, but that that had been corrected. Mr Sellick’s instructions were that the appellant had the impression that the date was 28 September. The appellant gave instructions that he had indeed attended a job interview on the Tuesday of that week and gave the name of a builder in the Birmingham area as the employer in question. Mr Sellick told the Judge that the appellant had been arrested in the end at the address of the ex-girlfriend which had been mentioned when the warrant was issued on the first day of the trial. It was submitted that he would not have been there if he was truly absconding. Mr Sellick’s instructions were that the appellant had not received the calls to his mobile telephone as he had no available credit on it. It was repeated that the appellant had in his head the date of 28 September as being the trial date. Mr Sellick proceeded to apply for the jury to be discharged and a re-trial ordered.
22.
The discharge application was opposed by the Crown on the basis that the court had been told on the first day, by counsel on instructions, that the appellant had been in contact with his solicitors three weeks before trial when the true date was confirmed and he had said that he would be travelling to Cornwall over the weekend, which would have made no sense if the trial was to start on 28
th
September, which was a Friday. Counsel for the Crown invited correction of this information so given to the court on the first day of trial, if the instructions were now different. Mr Sellick asked for time to check the position further with his instructing solicitors. The Judge allowed time accordingly and the court adjourned at 1428 hours.
23.
After the adjournment, at 1501 hours, the Judge was told that the solicitors had an attendance note of 16 August 2012 which, while not expressly referring to the trial date, recorded that the appellant was going to travel to Cornwall over the weekend so as to be present in time. Mr Sellick repeated the point that if the appellant was truly absconding he would not have been at the address at which he had been arrested the previous day.
24.
Having considered those matters, the Judge rejected the suggestion that the appellant was unclear as to the date of trial. He was satisfied that the appellant had been voluntarily absent on the first day of trial and had been trying to avoid detection. Again, the Judge said that he would not “wind the clock back” except to the extent of allowing the appellant to give his evidence.
25.
The appellant duly gave evidence on the same day denying all the allegations. Unlike the complainants, he was, of course, cross-examined.
26.
The Judge summed up the case to the jury on the following day (Friday, 21
st
), beginning at 1013 hours. At the start of the summing-up he warned the jury not to speculate as to the reasons for the appellant’s initial absence from the trial. He told them that his absence was not relevant and afforded no support for the Crown case. He told them that they must consider the evidence that the appellant had given in the same way as evidence given by other witnesses. No criticisms are made of the summing-up which the Judge delivered. The jury retired at 1101 hours. After a retirement of four hours (at 1518 hours), in the absence of agreement on any count or counts, the Judge gave a majority verdict direction. At 1602 hours the jury returned to court with majority verdicts of guilty on all the outstanding counts.
27.
We have already indicated the grounds upon which this appeal against convictions is based. Criticism is made of the Judge’s decision to proceed on both 18
th
and 19
th
September in the light of the information available on those two days. It is then submitted that on 20
th
September the Judge should have discharged the jury and ordered a re-trial. At the very least, it is argued, he should have arranged for the re-call of the Crown witnesses for cross-examination, although as we have already mentioned no such application was made at the time.
28.
We examine those points in turn.
29.
It is to be noted that no criticism is levelled against the Judge’s conclusion that the appellant had indeed been deliberately absent from his trial until arrest and had been avoiding detection. In our judgment, that finding was clearly correct. As the Judge found, the appellant must have been well aware of the true trial date. His solicitors had the YMCA address; the appellant had been collecting correspondence from there. He had been in oral communication on 16 August with solicitors about the trial date and told them that he was planning a journey to Cornwall over the weekend before trial, so as to arrive on time. The clear inference was that he was expecting a Monday start and not a Friday one.
30.
The trial did not proceed on the Monday (17
th
). A warrant was issued. On the next day (18
th
), the appellant still had not appeared. It was thought that the appellant might be caught at the Job Centre that afternoon, but the Judge could not be criticised, in the face of such uncertainty and of the apparent deception of the appellant’s legal team as to where the appellant was, for proceeding with the opening and the evidence in chief. On the basis of proper directions to the jury about the appellant’s absence on the first day, which (we are told) were given, there could be no significant prejudice if the appellant was duly apprehended that afternoon.
31.
On the following day (19
th
), the appellant still had not been found, although it emerged that he had been to the Job Centre earlier than his standard appointment time, which it seems would only have been permitted on the basis of attendance at a job interview. At that stage, solicitors and counsel for the defence withdrew. In our judgment, the Judge was acting well within the bounds of his discretion to continue with the evidence and to question the witnesses to the limit that his duty of impartiality allowed. He did this.
32.
On Thursday, 20
th
September, the appellant had been arrested and arrived at court at some time before 1415 hours, when he appeared in court, again represented by counsel. Counsel made his application to discharge the jury, but made no express alternative application to have the Crown witnesses recalled, although we are prepared to accept that such an alternative course must surely have been present in everybody’s minds. We are surprised that this option was not explored at all. It also seems odd to us also that consideration was not given either to ordering an early re-trial, if necessary at the expense of other business in the lists either at Truro or at another Crown Court location.
33.
The real difficulty in this case emerges, in our view, when we come to consider the safety of the conviction, in the light of the appellant’s arrest and his presentation at court on the Thursday. The court’s decision not to “wind the clock back”, but merely to proceed from the point which the trial had reached meant that the appellant did not have the benefit of a cross-examination of the complainants by counsel. As we have indicated, they were questioned by the Judge, but obviously such questions could not replace a full testing of the evidence by experienced counsel.
34.
We recognise that a defendant who voluntarily absents himself from a trial cannot expect, in all cases, to have the benefit of a trial conducted in accordance with all the same procedures that would have been applied if he had attended at the proper time. In the leading case dealing with trials begun or continued in the absence of persons who abscond (
R v Jones
[2003] AC 1
) Lord Bingham of Cornhill said (at paragraph [11]):
“11. Counsel for the appellant laid great stress on what he submitted was the inevitable unfairness to the defendant if a trial were to begin in his absence after he had absconded. His legal representatives would be likely to regard their retainer as terminated by his conduct in absconding, as happened in this case. Thus there would be no cross-examination of prosecution witnesses, no evidence from defence witnesses, and no speech to the jury on behalf of the defendant. The judge and prosecuting counsel, however well-intentioned, could not know all the points which might be open to the defendant. The trial would be no more than a paper exercise (as Judge Holloway at one point described it) almost inevitably leading to conviction. The answer to this contention is, in my opinion, that one who voluntarily chooses not to exercise a right cannot be heard to complain that he has lost the benefits which he might have expected to enjoy had he exercised it. If a defendant rejects an offer of legal aid and insists on defending himself, he cannot impugn the fairness of his trial on the ground the he was defended with less skill than a professional lawyer would have shown. If, after full professional advice, he chooses not to exercise his right to give sworn evidence at the trial, he cannot impugn the fairness of his trial on the ground that the jury never heard his account of the facts. If he voluntarily chooses not to exercise his right to appear, he cannot impugn the fairness of the trial on the ground that it followed a course different from that which it would have followed had he been present and represented.”
35.
We acknowledge that principle but the court still has to examine the fairness of the process, and the safety of any conviction resulting on all the facts of the case. The greatest difficulty in this case is a matter which we have not so far mentioned. It is this.
36.
The complainant, H, was first interviewed about these matters on 1 August 2009. In the course of that interview she gave an account of sexually abusive behaviour by the appellant on several occasions, but stopping short of penetrative intercourse. For example, she said,
“…he would go through all the motions and that of having sex. But because I was so young it was very difficult to actually get it in, so it would just be going up against the openings really”
A little later she said this,
“…he would get it as close to the openings as he could. But he could never, well, he certainly tried, but he could never get it fully in…
But he would get it as close as he possibly could…”
37.
H was re-interviewed on 11 May 2010. At the start of that interview she said,
“When you asked before I didn’t, sort of, say everything…that happened because I couldn’t really say it to anybody really. But what happened was quite a lot worse. It was rape a lot of times, most of the time when it happened it was. And that’s what I needed to say…
Q. Okay. Tell me what you mean by “rape”, what you perceive it to be.
A. Full penetration.
Q. Okay. Of what part of your body with what part of his?
A. Vagina with penis…”.
H then proceeded to give a fuller account of penetrative sex perpetrated on a number of occasions. It was this account that gave rise to the four counts of rape on which the jury convicted the appellant.
38.
This was obviously a very important inconsistency which would have had to be covered in any cross-examination. It was not covered in the Judge’s questions to H after Mr Sellick’s withdrawal from the case on the Wednesday of the trial week. The Judge is not to be criticised for that.
39.
We consider that this feature of the case, if no other, ought to have led to very searching enquiry as to whether it was feasible to arrange matters so that H in particular and also V could be cross-examined either by being re-called or by the jury being discharged and an expedited re-trial being fixed.
40.
When it came to the summing-up, the Judge gave a very brief summary of the first interview and told the jury that it was in a second interview that H had given her account of the penetrative sex. However, he left to the jury the possibility of conviction of attempted rape. The Judge did not remind the jury that neither H’s account nor that of V had been tested in cross-examination. He did not direct the jury as to the disadvantage to an accused person of their being no cross-examination, perhaps particularly in a case where inconsistencies in a witness’s various accounts are as obvious as they were in this case. Mr Sellick informed us that the points were raised in his speech to the jury on the Thursday afternoon, but no more was said about it by the Judge in his summing-up.
41.
In this context we remind ourselves of the further points made by Rose LJ in
Hayward
(supra) as follows:
“If the judge decides that a trial should take place or continue in the absence of an unrepresented defendant, he must ensure that the trial is as fair as the circumstances permit. He must, in particular, take reasonable steps, both during the giving of evidence and in the summing up, to expose weaknesses in the prosecution case and to make such points on behalf of the defendant as the evidence permits. In summing up he must warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case.”
42.
In our judgment, this was a case in which the proper cross-examination of the witnesses, if achievable, was an important ingredient in the fairness of the trial of these charges. This was particularly so where an important inconsistency in the main complainant’s evidence had not been explored in either cross-examination or in the Judge’s questioning of the witness.
43.
If the appellant had remained absent throughout, he would have undoubtedly lost any right to complain about it not having happened. However, in the end, we consider that after his apprehension, insufficient was done to enquire as to how, if at all, this potential deficiency in the trial process could be rectified. The assumption was immediately made that the trial could not continue into the following week without any consideration of whether that was really so. No enquiries were made about achieving an expedited re-trial as an alternative. Finally, neither the inconsistencies of the complainant H in her two accounts, nor the consequences of an absence of cross-examination from the point of view of an accused, were brought to the jury’s direct attention in the summing-up. Nothing was said at all in the summing-up about the fact that while the appellant had been cross-examined the complainants had not. So far as the appellant’s absence from part of the trial was concerned, the Judge said this:
“You will recall, I imagine, what I said to you at the outset of the trial relating to the fact that the defendant was absent when this trial began. You must not be tempted, I repeat, to speculate as to the reason for his absence at that stage. It is not relevant to your assessment of the evidence, which of course you must consider very carefully. You should not treat the defendant’s absence from most of this trial as any support for the prosecution case. He has joined the trial at a late stage, he has given evidence and you will of course consider his evidence in the same way as you consider the evidence given by other witnesses.”
44.
We recognise that an absconding defendant will frequently have no complaint if a trial is conducted wholly or in part in his absence. However, it is always necessary to consider how the fairness of the trial process can be preserved at each stage. In our judgment, in this case, insufficient was done following the appellant’s arrest and production at court on the Thursday to see what could be done to achieve what the circumstances required in the interests of all concerned and in the interests of justice. We have concluded, therefore, that the appeal must be allowed and the convictions quashed.
45.
At the conclusion of the hearing we reserved our judgment, but heard submissions from counsel as to whether this was a case in which re-trial should be ordered. Miss McCarthy applied for a re-trial in that event. That was not opposed by Mr Sellick. Accordingly, we will order that the appellant be re-tried on a fresh indictment. We will give the necessary directions when this judgment is formally handed down. No more needs to be said about the appeal against sentence. | ```yaml
citation: '[2013] EWCA Crim 2043'
date: '2013-11-19'
judges:
- LORD JUSTICE McCOMBE
- MR JUSTICE WYN WILLIAMS
- MRS JUSTICE PATTERSON
``` |
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}
======
| Case No:
200304117 C2
Neutral Citation Number:
[2004] EWCA Crim 1147
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Date:
Monday, 29th March 2004
B E F O R E:
LORD JUSTICE AULD
MR JUSTICE ELIAS
SIR EDWIN JOWITT
(Sitting as a judge of the Court of Appeal Criminal Division)
- - - - - - -
R E G I N A
-v-
NEIL JAMES PRIOR
- - - - - - -
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 K THORNE
appeared on behalf of the APPELLANT
MR R P JOHNSON
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE AULD: On 20th June 2003, before Mr Recorder Lynagh QC and a jury at the Crown Court in Guildford the appellant, Neil James Prior, was convicted of two offences of offering to supply a Class A drug. The Recorder imposed two Drug Treatment and Testing Orders, each of two years' duration, to take effect concurrently. He also imposed a sentence of three months' imprisonment for an offence of possession of a Class A drug, to which the appellant had earlier pleaded guilty, a sentence that he had, by reason of his time in custody, already served.
2.
The appellant appeals against his convictions by leave of the single judge.
3.
The central issue at the trial was whether the appellant, as a matter of fact and in law, "offered to supply" a controlled drug to another within the meaning of that term in
section 4(3)
(a) of the
Misuse of Drugs Act 1971
.
4.
The central issue in this appeal is whether, to constitute an offence under that provision, the offer must be made with an intention or belief that the person to whom it is made would believe it to be genuine. Given that central issue, which is one of law, the facts may be stated shortly.
5.
In January 2003 the police in Guildford undertook a covert operation to identify and arrest drug dealers in the area. A police officer, using the name "Terry" and posing as a potential purchaser of heroin, went with a man called Hardy to the address of the appellant and a man named Dave Leach to pick up some heroin. On the way there Hardy used Terry's mobile telephone to call Leach to obtain directions to the address. Terry later obtained the appellant's telephone number from Hardy's telephone.
6.
The prosecution case was that, in subsequent telephone conversations between Terry and the appellant, the appellant offered to supply Terry with heroin. The prosecution relied almost exclusively on recordings of those telephone conversations.
7.
The defence case was that anything said by the appellant was not intended by him to be an offer, but a bluff; in the alternative, that any offer he may have made he subsequently withdrew in the same conversation.
8.
In the first telephone conversation, which was on 2nd January, Terry indicated that he would like to visit the appellant to obtain heroin, and suggested a barter of a DVD player. The general drift of the appellant's response was that he had no drugs at the time to supply, but would be prepared to do so if Terry rang him again. The conversation ended with the appellant saying to Terry that he would sort him out. In a second telephone conversation that day the appellant indicated that he would supply Terry with heroin whenever he wanted and that Terry should just give him a call. Those telephone conversations were the subject of the first count.
9.
There were some conversations over the next few days in which Terry indicated his wish to obtain heroin, again offering to barter a DVD player, and in which the appellant appeared to prevaricate, indicating that he had no heroin at the time and was dependent on Leach for his supply, but also indicating that when he was in a position to deal with Terry he would do so.
10.
There was a further telephone conversation, this time on 7th January, which is the subject of the second count. In it Terry repeated his offer of a DVD player as payment for some heroin. The appellant indicated that he would definitely do the deal and would obtain the heroin from someone else to enable him to do it. Then he said that he would set up the deal so that someone else would supply Terry, adding that he did not want Terry to keep telephoning him and being let down. In a further telephone conversation that day, when Terry repeated his request for heroin, this time offering some clothing in exchange, the appellant said that he would pay for the clothing in money so that Terry could use it to buy heroin elsewhere, adding "I don't want to get into the gear any more", but he ended the conversation by saying that he would either pay him in money for the clothing or with heroin.
11.
The appellant remained silent in interview after caution following his arrest.
12.
At trial, at the close of the prosecution case, Miss Katy Thorne submitted on behalf of the appellant that there was insufficient evidence of any offer to supply a controlled drug. The burden of her submission was that in the various telephone conversations the appellant went through a number of stages, from arguably offering or agreeing to supply heroin to Terry, to offering to act as an intermediary, to stating that he would not supply heroin in return for the articles Terry offered him and to indicating that he would rather pay in cash for them. Miss Thorne submitted that, taking the conversations as a whole, they did not constitute offers to supply a controlled drug or that, if some of them did, the appellant effectively withdrew them during the telephone conversations on 7th January.
13.
The Recorder rejected that submission, holding that, although he did not find the point easy, his view was that once an offer to supply drugs had been made, the offence was complete, even though the accused may have subsequently rescinded or revoked his offer. He said that he was satisfied that there was evidence on which a jury could properly find that the appellant had offered to supply the drug on both occasions, and that what he said subsequent to the making of such offers was immaterial to the issue of his guilt or innocence. He added, in the alternative, that even if an offer could be expunged by later withdrawal, a reasonable jury could properly find, on the totality of the conversation on 7th January, that the original offers on 2nd January and on that day were never in fact withdrawn.
14.
The appellant gave the following evidence. At the material time he was addicted to heroin and Leach was his supplier. When Terry telephoned on 2nd January he had no heroin to supply and no money to buy any for onward supply. He had no intention of dealing with Terry. His intention was to put him in contact with Leach so that Leach could supply him and so that he, the appellant, might benefit from Leach's gratitude for the introduction. He did not himself want to deal. At some stage in their short series of telephone conversations his plan had been to obtain heroin from Leach for Terry, but later he decided to tell Leach of Terry's interests and let Leach deal with him direct. He hoped, in saying to Terry that he would telephone him and then not doing so, and by procrastinating, that Terry would lose interest and approach someone else. Whenever he said "yeah" or "yes" to Terry's suggestions, he was not really agreeing with them, but simply giving the appearance of going along with them.
15.
The Recorder, in his directions of law to the jury on the counts of offering, said:
"... The allegation in each [count] is the same that the defendant offered to supply a quantity, no amount specified, but a quantity of heroin to Terry, the undercover police officer who you saw give evidence. The most important words there are 'offering to supply'. Not a supply that is alleged, but simply an offer. Again, there is nothing technical or legalistic about the word 'offer', it is a normal English word in common usage and you treat it as such. The point though is: is it an offer?
You have heard during the course of argument that it is important that the defendant never actually intended to supply heroin to Terry and, indeed, fobbed him off. Of course it is right that he did not actually supply any heroin directly to him. But there is nothing in the statute that requires an intent to actually make a supply. The offence is simply one of offering to supply. The offence is complete if and when an offer to supply heroin is made. It is irrelevant that a defendant may have had no intention to actually fulfil that offer by supplying heroin. Equally it is irrelevant whether a defendant is actually in possession of heroin at the time. It is irrelevant whether a defendant had easy access to heroin at the time. It does not matter that no heroin was in fact supplied. The question simply is in any case like this: did the defendant offer to supply on all or any of the three occasions to Terry? Offer is the crucial word.
Now we will look at some of the evidence in a moment and the background to it. The defence urge you that you must take an overall view of these conversations. Do not just pick words out here and there it is suggested and certainly you must consider the entirety of these conversations, but obviously you may take the view that some parts of the conversations will be more central and more relevant to the issues that you have to decide, but put them in context."
Later, when dealing specifically with the conversation on 7th January, the subject of the second count, he said:
"The prosecution say that, in effect, he is keeping his options open, but that the offer is an offer that is made at a much earlier stage in the conversations on 7th. But it is a matter for you. Interpret it, read it, make up your mind what is meant and see what you believe that those words actually mean."
16.
This appeal raises a number of related issues going to the validity of the Recorder's ruling of a case to answer and to his directions to the jury, namely whether to qualify as an offer for this purpose: 1) it must be made genuinely in the sense that the offeror intends to fulfil it and expects to be able to do so; 2) whether an offer within the meaning of the provision can be retrospectively expunged by its later withdrawal; and 3) whether, on the facts, what was said by the appellant was sufficiently precise to amount to an offer and was, in any event, an offer to supply, as distinct from an acceptance of, or acquiescence in, an offer to buy.
17.
As to the genuineness of the offer, Miss Thorne, who appeared again for the appellant on this appeal, submitted that this is not an absolute offence since Parliament has not clearly indicated that it is one of strict liability. There is therefore, she maintained, a presumption that mens rea is an essential ingredient of the offence. She sought to distinguish the various authorities of this Court to the contrary on the basis that they were all dealing with a defence contention that there was no offer under this provision where its subject matter did not exist or was not in fact a controlled drug. She said that the fact that those authorities decided that the offence could be committed without an intention to supply a controlled drug did not exclude the need to establish some mens rea, namely, an intention to make an offer. Such a mens rea, she submitted, was relevant in a case such as this where the defence was that the so-called offer was just a bluff, without the intention or belief that the person to whom it was made would believe it to be genuine.
18.
It followed from her submission that, to constitute an offer under this provision, the prosecution must prove that the offeror intended the offeree to believe that the offer was genuine. The failure of the Recorder to direct the jury to this effect, she maintained, was fatal to the safety of the convictions, since the jury, when considering the manner and effect of the appellant's words, should also have considered his intention in using them.
19.
Mr Robin Johnson, for the Crown, submitted that all the prosecution had to prove was the making of an offer to supply controlled drugs, and that it was irrelevant whether the defendant had any controlled drug in his possession or whether he intended to supply a controlled drug or something else or nothing at all. It was enough that he made the offer.
20.
It is clear law that the offence is committed whether or not the offer is genuine. In
R v Goodard
[1992] Crim LR 588, CA, Swinton Thomas J (as he then was), giving the judgment of the Court, held that the offence is committed where a bogus offer to supply a controlled drug is made, since there is nothing in
section 4(3)
(a) that requires an offer must be made with genuine intent to provide what is offered. The Court added that the construction contended for by the applicant in that case would make it almost impossible for the prosecution to meet a defence that the defendant did not intend to carry out the offer.
21.
As Staughton LJ, giving the judgment of the Court in
R v Mitchell
[1992] Crim LR 723, CA, observed, although an offer may be by words or conduct, where it is by words alone one has to judge from the words whether it is an offer to supply a controlled drug. If a person knowingly makes an offer to supply in words which had that effect, that is the offence.
22.
In
Mitchell
it should be noted the Judge directed the jury that it was irrelevant whether the defendant had any controlled drug in his possession or whether he had intended to supply a controlled drug or something bogus. It was enough if they were sure he had made the offer.
23.
As the editors of the current edition of Archbold in paragraph 26-43 note,
Goodard
was applied and
Mitchell
was approved in this Court in
R v Gill
[1993] 97 Cr App R 215
. There, the Court upheld a conviction of conspiracy to offer to supply controlled drugs, even though the intention was to cheat those to whom the offer was made by supplying vitamin pills. McCowan LJ, giving the judgment of the Court, expressly approved the judgment in
Goodard
.
24.
The allowance by the Court in
R v Kray
[1999] 2 Archbold News 3, of a possibility that an offer made in such circumstances as to be so obviously a charade or joke would not amount to an offer in any real sense does not run counter to those authorities. Reverting to Staughton LJ's approach in
Mitchell
, the important thing is the effect of the words, to which I would add in this context, having regard also to the way in which they were said and any other relevant circumstances apparent to the offeree at the time. In short, whether the words uttered and the manner in which they were uttered had the appearance of an offer for this purpose is essentially a matter of fact for the jury. The genuineness or otherwise of the offer, or indeed whether, notwithstanding appearances, it was meant as a joke, would be irrelevant.
25.
Accordingly, the Court has no hesitation in concluding that the Recorder's directions to the jury as to the irrelevance of the appellant's intent and of his ability or inability to honour his offers were in accordance with the law.
26.
We turn to Miss Thorne's submission that the prosecution must at least prove mens rea in the sense of an intention to make an offer to supply a controlled drug which the offeree would believe to be genuine. This, so far as we can understand it, appears to be a suggestion that, although the prosecution need not prove the genuineness of an offer to supply a controlled drug, it must prove that the defendant intended to make it look genuine.
27.
As a matter of practical proof, such a task would be indistinguishable from proving to a jury that the words and the manner and the circumstances in which they were spoken in fact amounted to an offer. If it were anything more than that, it would drive a coach and horses through this provision, designed, as it is, to prevent drug dealers or purported drug dealers from plying their trade. In those cases where, on the authorities, a defence of lack of intent to supply would not avail them, they could still, if Miss Thorne were right, rely on the fact that, unknown to the offeree, they were only joking and did not intend, despite all outward appearances, the offeree to take them seriously.
28.
We turn now to another aspect of Miss Thorne's submissions, (there was a good deal of overlap in all of them), the effect of withdrawal of an offer. It must follow from the Court's answer to the first issue that when the offer is made, the offence is complete, whatever lies behind it, and that its subsequent withdrawal or revocation cannot affect that. This has nothing to do with the meaning of "offer" in the law of contract, which in any event would be of little help in this context. Although in contract an offeror may withdraw his offer at any time up to acceptance, if he does so it does not mean that he never made such an offer, simply that he is not bound by acceptance, if there is one, after withdrawal. The only possible relevance of a later withdrawal of an offer in the same or closely connected conversations is - when looking at the conversation or conversations as a whole - it is not clear whether an offer was made at all.
29.
We mention this issue because Miss Thorne gave it primacy in her grounds of appeal, both in relation to the Recorder's rejection of her submission of no case to answer and by way of complaint of his failure to direct the jury on the point. It did not receive so much focus in her amended skeleton argument. But she has returned to it in argument, albeit in a less direct way than she put it to the Recorder.
30.
For the reasons we have given, the Recorder was correct in the ruling that he gave, and as it was reflected in his directions to the jury. Once an offer is made within the provisions of this section any later withdrawal of it cannot have the effect -- and we use a neutral word here -- of expunging the original.
31.
Another strand of Miss Thorne's submission was that this was not, looking at the conversations as a whole and in their individual parts, an offer but, at the most, an acquiescence in an offer by Terry to buy, and that such an acquiescence is not capable of constituting an offer for the purpose of this provision.
32.
So far as we can tell, Miss Thorne did not include this complaint in her submissions of no case or in her grounds of appeal. It was, however, one of her main points in her submissions to this Court. She maintained that, looking at the whole of the conversations on 2nd and 7th January, there was no offer by the appellant, only an acquiescence in offers by Terry, an acquiescence, moreover, that he later withdrew. She submitted that the distinction is important because the rationale of the offence must be to protect the public from the mischief of drug dealers plying their trade, not to punish drug addicts for reluctantly agreeing to help other drug addicts satisfy their habit, and then reneging on their agreement.
33.
Allied to this complaint, which was essentially a matter of fact for the jury when considering whether the appellant offered Terry heroin, was Miss Thorne's complaint that the words used were too vague to amount to an offer for the purpose. He mentioned no specific quantity or weight or price, and no date or time for the supply. At the most, she submitted, the words indicate that the appellant was expressing a general willingness to be approached by Terry for drugs in the future - little more in effect than saying that he was a drug dealer. She did not, however, go so far as to suggest that the offer must be for immediate and not for some future supply, and she acknowledged that the authorities indicated that the principles of the law of contract as to what constitutes an offer do not apply to this offence. But she argued nevertheless that it would be wrong in principle to allow such a vague conversation or conversations, which could not be construed as contractual offers, to amount to an offer in a provision like this making it a criminal offence.
34.
As to both the acquiescence and the vagueness points, it was, in our view, essentially a matter for the jury, looking at all that was said by the appellant and Terry and the surrounding circumstances, whether what took place amounted in ordinary parlance to an offer to supply a controlled drug. The fact that it may have been an offer of a future supply on some unspecified date, and at an unspecified time or place, is irrelevant. Nor is it a prerequisite of such an offer that it should satisfy or approach satisfying contractual requirements that an offer, to be capable of acceptance, must be sufficiently specific in its material terms - amount, price, time and place of delivery and so on - as to produce, if accepted, sufficient certainty of terms for rendering it contractually binding.
35.
As to the acquiescence point and the purpose of this statutory provision, it seems to us that it is aimed at a market - including one in which many potential buyers are likely to be drug addicts approaching those who are holding themselves out as offering illicit drugs for sale. It is thus a market in which there may be a potential buyer anxious to satisfy his habit, and who, therefore, is often likely to be the one importuning, and that those who are offering drugs for sale to such a clientele are a legitimate target of this provision. It is immaterial who takes the initiative if, in the course of what follows, there is an offer to supply. Thus, as Sir Edwin Jowitt observed in the course of argument, it is not a matter that is confined by the straitjacket of principle of contract law.
36.
In our view, the Recorder was, on the facts, entitled to leave to the jury the question whether the exchanges between the appellant and Terry amounted to an offer by the appellant to supply controlled drugs. And, in the passages from his summing-up that we have set out, and also in other passages, he clearly directed the jury that they should look at the words spoken and the circumstances in which they were spoken and decide for themselves whether they amounted to offers within the meaning of the provision. In our view too, his direction cannot be faulted. To have done any more would have been to usurp or improperly restrict the jury's consideration and assessment of what, in relation to this simple English word in this context, was essentially a matter of fact for them. Accordingly, we dismiss the appeal. | ```yaml
citation: '[2004] EWCA Crim 1147'
date: '2004-03-29'
judges:
- LORD JUSTICE AULD
- MR JUSTICE ELIAS
- SIR EDWIN JOWITT
``` |
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 2422
Case: No: 201002768 B1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date: FRIDAY, 30TH JULY 2010
B e f o r e
:
LORD JUSTICE MOSES
MR JUSTICE KENNETH PARKER
HIS HONOUR JUDGE BEVAN QC
(SITTING AS A JUDGE OF THE CACD)
R E G I N A
v
J
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)
Miss M Smullen
Appeared On Behalf Of The
Appellant
Mr D Scutt
Appeared On Behalf Of The
Crown
J U D G M E N T
1.
LORD JUSTICE MOSES: This is an appeal which raises the not unfamiliar difficulty from the point of view of appellants as to verdicts which depend upon the credibility of one witness where the jury convict on one and acquit on another. The appellant was a young man of 15 at the time with certain learning difficulties and was convicted of false imprisonment on 21 April 2010 at Harrow Crown Court.
2.
The case was brought against him and the allegation was that he had raped a young girl of similar age, just 15, over a year before, on 25 February 2009. The allegation made by her was that she had been forced to go on a bus with four young males, a distance of about a mile, and had there been raped both orally and vaginally. She had first complained to a school friend who recorded the complaint that she had been walking home and had been forced into an alley way with two boys where she had been sexually attacked and forced to do something. She had subsequently complained to the doctor and the police.
3.
Unfortunately the case was badly handled by the police. Sensibly a police officer had asked the bus company to check CCTV footage not of the particular bus because it was not, known which bus it was, but of the route taken by the appellant. The information -- and it was no more than this that emerged -- was that they could find no film of a girl going on the bus accompanied by four boys, but whether they had information of a girl going on the bus with one boy never emerged, because the one thing the police failed to do was to warn the bus company to retain copies of any possibly relevant CCTV. If there was going to be a prosecution and there was nothing shown of this girl accompanied by one boy then that would have been powerful evidence to assist the defence, because by the time that this defendant was arrested he was saying he had gone on the bus, but alone with the girl, voluntarily. In those circumstances the CCTV evidence, one way or the other, was of particular importance.
4.
Nothing happened following the complaint until her clothing was examined. When it was examined semen was found on her under garment and DNA traceable to this appellant was found. That obviously took some time and he was arrested.
5.
A relatively inexperienced officer undertook the best evidence interviews of the girl. It was accepted by the Crown that due to her inexperience that officer breached a number of guidelines. In particular it emerged that she had suggested things to the complainant that had not in fact been said. The culmination was that by the time of the trial there were very substantial and major inconsistencies in her evidence. She had described being orally penetrated and vaginally penetrated by a number of the boys and not just this appellant, but when she was originally interviewed she had made no mention of this appellant, the only black boy, putting, as she put it, "his dick in her privates" until this was suggested by the police officer. She had suggested that a mixed race boy had done this on 25 February 2009, but a day later she told Dr Ajay that two mixed race boys had penetrated her vagina, but had made no mention of the only black boy, this appellant, doing that.
6.
During the course of her interview by PC Phillips she told the officer that the black boy had put his finger inside her vagina. This was the first time she had said this. Earlier on 25 February she had said that it was a mixed race boy who had done so.
7.
At school, when she first complained about this, she had said that one of the boys had told her to as she put it "suck his dick" and said that if she did not agree he would put his finger in her private parts. She had refused and the boy had walked off. In the account she gave to the doctor she said that a mixed race boy had digitally penetrated her.
8.
In her original statement she had given no descriptions of the boys. On 25 February, to the Sexual Offending Investigating Team officer she had said that the black boy, that is this appellant, had put his penis in her mouth. She told the doctor that one of the, as she put it, Afro-Caribbean suspects touched her breasts under her bra. In the account she gave to the doctor she did not accuse the black male of having done anything else.
9.
In the account to the sexual offences investigating team officer on 25 February she said that someone had touched her breasts over her clothing. In the interview conducted by PC Phillips she said that the black boy had looked at her breasts, put his hands under her shirt and touched her breasts underneath. He moved his hand when she told him to stop.
10.
In her account given to the sexual offending investigation team officer she said that a person had told the boys to stop and she had left and gone home. According to her in the interview with PC Phillips she said that the black boy had led her out of the bushes into which she had been taken and gone towards the main road.
11.
She had given a number of different accounts as to why she had got on the bus with the boys. She had, in her first statement, said that she was going home, been approached by four boys who called her sexy and cute, she said okay and got on the bus, where they asked her to lift her top. They had held her hand and forced her to get on the bus and she did not know where she was going. She had referred to going to an alley way where they started to ask "if I wanted to suck his cock."
12.
A different account was given in the logged record. She had been given a number of pieces of information about which different buses to get on and she described getting off the bus when they told her to do so and being taken down a dark alley. Later on she is recorded in the same log as saying she was asked to follow them. She said she had done so because she did not know where she was going. The sexual approach was repeated. She refused and said she felt very scared and very harassed.
13.
The closer account to that which she gave finally was given in the interview with PC Phillips a month later on 15 March, the following month, where she said she had been told to get on the bus and subsequently get off it.
14.
All those inconsistencies were referred to fairly by the judge and all form a list of inconsistencies in the account she gave that was placed before the jury.
15.
The appellant gave evidence to the effect that all that had gone on was wholly voluntarily, and only involved him. He had met the complainant at the bus stop, which was his normal bus stop for going home, at the beginning of February and they had talked and she had smiled at him and they had chatted amicably. She had apparently asked if she could "hang out with him", but he had declined because he was busy. On the day of the allegation they had met again. She had again repeated the request and he agreed. So they got on the bus together. She was perfectly happy in his company and no one else was with them. They got off, walked through an underpass to a little grassy area where they hugged, cuddled. She kissed his face, pulled down her tights. She asked if he had any condoms. He said no. She then unzipped his trousers and masturbated him. He ejaculated on her hand. It was to that he attributed the finding of semen and DNA on her pants. She had pulled her pants and tights back up after she had refused a tissue.
16.
The judge, in a very fair summing up, correctly pointed out to the jury that they had to consider the two allegations that remained for them to consider separately. One allegation of rape had been withdrawn from the jury as a result of the breaches by the police officer of the rules for conducting best evidence interviews, but the judge made it clear that although the counts had to be considered individually the case really stood or fell on their acceptance or otherwise of the complainant's evidence. He said:
"You must give separate consideration to the two counts. You may think in effect that it is unlikely that there is going to be separate verdicts in the sense of guilty of one, not guilty of the other. It is a matter for you, but you may think that they stand and fall together. The important thing to remember is separate verdicts, separate considerations to them."
That is an entirely conventional direction to the jury, but of course it does leave them open to reach separate conclusions according to whether they think a witness is reliable in some aspects of her evidence but unreliable in relation to others.
17.
The judge then went on to explain to them the allegation of false imprisonment. It turned entirely upon the jury accepting as the truth that there were four boys who forced her to go on the bus and on the journey to the secluded area through the underpass. If they were not sure about that then they had to acquit. He then invited them to consider the absence of the CCTV and pointed out to them how powerful a point the defence had in the absence of the CCTV which for all anybody knew was entirely consistent with what the appellant had said, and he commented "what a great shame it was that the CCTV was not available." He then dealt with the rest of the evidence, which we have outlined.
18.
As we have indicated, the appeal was advanced on the basis that the conviction of false imprisonment but the acquittal of rape were inconsistent. Since the verdicts depended upon the jury being sure that that young girl was telling the truth, if they had doubts about her allegation of rape, namely the oral penetration by this appellant, then how could they be sure that she had been forced to go on that journey by four boys.
19.
There was, so it was contended, no explanation for the semen being found on her underclothing if the allegation was that she had been forcibly penetrated by this appellant in her mouth.
20.
In our judgment these two verdicts were not inconsistent. It is trite but often repeated in this court that the mere fact that the jury accept the evidence in some respects of one witness but reject it or have doubts about it in relation to another aspect does not demonstrate such inconsistency as would compel this court to interfere. It was not inconsistent for the jury to be sure that she had been forced to go on that journey by four boys, but nonetheless they had had doubts about the nature of the sexual activity, all the more so where the signs of that sexual activity could be seen on her undergarments. In those circumstances we reject that ground of appeal.
21.
But the matter does not stop there. The underlying principle that has led the courts from time to time to describe verdicts as logically inconsistent is that looking at those verdicts the court has become satisfied that no reasonable jury applying their mind properly to the facts in the case could have arrived at the conclusions represented by the two verdicts impugned, see
R v Durante 56 Cr.App.R. 708
.
22.
In this case, assisted as we have been by the very fair way the case was prosecuted by Mr Scutt, who bore no responsibility whatever as to the unsatisfactory nature of the investigation, we take the view that there are very severe problems with the conclusion that the jury reached and the safety of the verdict as to false imprisonment. Those who could speak of the events of that day were both young. Both had learning difficulties. The police deprived the jury of a proper opportunity to weigh and test the evidence by the way the investigation was undertaken. Two particular features require emphasis. Firstly that the bus company was never required to retain the CCTV nor was it required to make a careful note of that which was seen when the CCTV was examined. There was no reliable evidence, as there ought to have been, as to what the CCTV showed and no means of checking what was purported to be on that CCTV. True it is that the jury were warned and directed about that, but the full force of that failure cannot have been clear to those inexperienced in such investigations. The second feature of the investigation compounded the difficulties in achieving a fair trial by the failure properly to conduct the ABE interview, conducted as it was some month or so after the events which were described.
23.
We have already identified the very substantial inconsistencies in the complainant's evidence, but coupled with this was the suggestion put by PC Phillips in circumstances where no such suggestion should ever have been advanced.
24.
We are left with the position that if the jury had properly taken into account those difficulties in establishing what really had gone on that afternoon, bearing in mind that this is a young man without previous convictions, we are driven to the conclusion that no reasonable jury could have concluded that she had been forced to go on that journey by the four boys rather than travelling with just this appellant.
25.
In those circumstances whilst we eschew that a difficult phrase "lurking doubt", we have come to the conclusion that this verdict was not safe. We are disturbed by the process in which this case reached the court. That of course is always difficult for a complainant and her family, who have gone through all the rigours of investigation and trial. We have to look at this case on the basis of the information we have received about the investigation and we want to make it quite clear that our conclusions do not reflect in any way upon the complainant herself; we did not hear her evidence, she has had no opportunity to give her evidence before this court and that is why we have sought to emphasise that aspect. But for the reasons we have given we have come to the conclusion that the single verdict on which this young man was convicted was not safe. Accordingly, we shall allow the appeal and quash the conviction. | ```yaml
citation: '[2010] EWCA Crim 2422'
date: '2010-04-21'
judges:
- LORD JUSTICE MOSES
- MR JUSTICE KENNETH PARKER
- HIS HONOUR JUDGE BEVAN 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
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```
=====
{context}
======
| Neutral Citation Number:
[2009] EWCA Crim 2519
Case No:
200806537/C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Thursday, 5th November 2009
B e f o r e
:
LORD JUSTICE AIKENS
MR JUSTICE PENRY-DAVEY
MRS JUSTICE SHARP DBE
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
MAX ANGUS ENSOR
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Mr K Metzger
appeared on behalf of the
Appellant
Mr S Drew
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE AIKENS: This is an appeal against conviction. The single judge gave leave on one ground of the four raised in the application for leave to appeal. There is also a renewed application for leave to appeal against conviction on another ground, for which the single judge refused leave. There is a contingent renewed application for leave to appeal against sentence, on which we have not yet heard argument. Obviously, that is only relevant if the appeal against conviction is unsuccessful.
2.
On 16th October 2008, following an eight day trial before His Honour Judge Eades and a jury in the Crown Court at Stafford, the appellant, who is now aged 56, was convicted by a majority of 11 to 1 of robbery, possessing a firearm at the time of committing an offence specified in schedule 1 of the
Firearms Act 1968
and possessing, using or acquiring criminal property. The judge sentenced the appellant to 12 years' imprisonment concurrent for the offences of robbery and possessing a firearm. The appellant was sentenced to 2 years concurrent for the criminal property offence.
3.
At the trial there was no dispute that a robbery had occurred at about 09.20 hours on 8th April 2006 on a travel agency in Cannock which was called "Going Places". One of the robbers had a holdall in which there was a sawn-off shotgun.
4.
The issue was whether, as the prosecution alleged, the robber with the holdall was the appellant. The robbers were seen to get away in a dark colour Hyundai coupé car with the number plate M13 DPB. The car had been stolen five days before the robbery and its number plate had been changed. Cash and travellers cheques to the value of £52,000 were stolen.
5.
On 8th September 2006, that is 5 months after the robbery, a search warrant was executed at the appellant's home address and at various garages with which he was said to have had some connection. In the appellant's house the police recovered a JJB carrier bag in which were found a peaked balaclava, tights and a pair of gloves. Also at the appellant's house, hanging behind the front door, was a set of keys, including a key which opened garage No 9A, as it was called in the trial. The appellant was renting that garage at the time.
6.
The police used the key to open garage 9A. In that garage they found a black holdall which the prosecution said was the one used by the robbers. The police also found another key fob, described as a "Hyundai key fob", with five keys on it. Two further keys were found in garage 9A.
7.
The holdall was subjected to forensic tests and a tiny fragment of firearm primer residue was found inside it.
8.
The police executed a search warrant on another garage, called No 51. That garage was secured by padlocks. At that stage the police forced the garage open. In it they found the Hyundai car that had been used in the robbery. They seized the padlocks to the garage. Subsequently, on the prosecution case, the keys that had been seized from garage No 9A were tried on the two padlocks taken from garage No 51. The keys opened the padlocks, according to the prosecution evidence. The evidence concerning the 'continuity' of the custody of the padlocks and the keys is the subject of the renewed application for leave to appeal, ie the ground that was rejected by the single judge.
9.
The appellant gave one "no comment" interview. At the second interview he provided a short written statement prepared with the assistance of his solicitor. There is nothing in that statement to indicate that his physical or mental condition would impede him from giving evidence.
10.
At the trial there was also evidence of mobile cell site analysis before the jury. This showed that the appellant's mobile phone was in the vicinity of the robbery at the relevant time.
11.
The trial began on 6th October 2008. The prosecution case was that all the circumstantial evidence, to most of which we have already referred, could make the jury sure that the appellant was the robber with the sawn-off shotgun. The defence case was that the circumstantial evidence was equivocal. The defence also argued that the prosecution had failed to prove the continuity of custody between the garages and the courtroom of the two keys found in garage No 9A and the padlocks on garage No 51 which it was said could be opened by those keys.
12.
On 8th October 2008, ie the third day of the trial, Mr Metzger, who appeared for the appellant then and has done so today, submitted that the issue of continuity of custody of padlocks and keys should be the subject of a
voir dire
before the judge before the evidence that the keys fitted the padlocks could be put to the jury. Mr Metzger has told us today that at the outset of the trial, he had made a submission that the evidence relating to keys and padlocks should not be admitted at all because of the lateness of the various statements supporting that evidence. That submission was rejected by the judge.
13.
The proposal of a
voir dire
was opposed by the prosecution. The judge ruled that the prosecution had to prove the connection between the keys and the padlocks and had to prove, by evidence, where they were found. The judge implicitly ruled, therefore, there was to be no
voir dire
and there was none.
14.
The trial then continued, and the prosecution finished its case at the midday break on 13th October 2008. At about 1.40 pm that day Mr Metzger handed to Mr Drew, who was prosecuting counsel then and who appears for the Crown today, a psychiatric by Dr Sain, dated 30th September 2008. Dr Sain is a consultant psychiatrist who is approved under section 12(2) of the Mental Health Act. Mr Metzger told Mr Drew that the appellant would not be giving evidence and that the defence would seek to rely on the contents of the psychiatric report in support of that decision. Mr Metzger has told this court today that the decision not to call the appellant was made on that date, ie on 13th October, after Mr Metzger had been through the psychiatric report and after he had had a conference with the appellant.
15.
The report of Dr Sain is five pages long. It states in its first paragraph that it had been prepared at the request of M & N Solicitors, acting on behalf of the appellant. It states that one of the sources of information for the report was a personal interview with the appellant on 25th September 2008. The conclusion of the report at paragraphs 5 and 6 of the "opinion and recommendations" is as follows:
"5. Looking into the history, in my professional opinion Mr Ensor would feel extreme difficulty to give evidence in a trial by the jury. The stress and appearing in the court in person could become counterproductive towards his mental health.
6. It is very unlikely that he would be able to cope with the stressors to appear in the court."
16.
When the court resumed at 2.00 pm on 13th October 2008 Mr Metzger told the judge that the appellant was not going to give evidence. Mr Metzger sought leave to adduce the psychiatric report in evidence before the jury. He stated that the report had been received by the defence solicitors on the weekend before the trial started, that is between Friday 3rd and Sunday 5th October 2008, and that it had only been seen by defence counsel on the first day of trial, that is 6th October 2008. Mr Metzger has told us that his attention was distracted at the outset of the trial by the issues raised by the "continuity" evidence concerning the keys and the padlocks, which he said was served late.
17.
The judge was not told when the report had been commissioned, nor whether it had been commissioned at the request of defence counsel or was obtained on the initiative of the defence solicitors. Mr Metzger has told us that he did not commission it; he only knew about it on 6th October 2008. There was no explanation to the judge of whether the solicitors or counsel knew of the gist of the report before 3rd October, although the report is dated 30th September. Furthermore, there was no explanation of why the defence did not inform the prosecution of the existence and contents of the report prior to 1.40 pm on 13th October, other than the suggestion that the defence's eye was taken off the ball by the issue of the "continuity" concerning the padlocks and the keys.
18.
At the hearing at 2.00 pm on 13th October 2008, Mr Drew, for the prosecution, said that the Crown did not accept the conclusions Dr Sains' report, to which we have referred, and that the Crown objected to the report going before the jury.
19.
The judge ruled:
(1) There was an issue between the parties as to whether the appellant suffered from a current psychiatric condition and, if so, the extent of it.
(2) The service of the report so late was a grave breach of the Criminal Procedure Rules; and
(3) The decision to serve the report only after a final decision had been made not to call a witness was "a deliberate tactical ploy by the defence". He therefore refused the defence application to adduce the report in evidence or to allow the defence to call Dr Sain as a live witness.
20.
The defence did call other evidence including evidence from a witness of fact that the appellant suffered from panic attacks. In his closing speech for the defence Mr Metzger asked the jury to infer that the appellant had an "excuse", (the judge's expression in his summing-up, see page 29G), for not giving evidence so that the jury should not draw any adverse inferences against the appellant for not doing so.
21.
In his summing-up the judge dealt with the evidence relating to the padlocks and the keys and the use of the garage No 51 at pages 20G to 22F. He directed the jury at page 21F that they would have to decide whether the keys and padlocks were recovered as the police said they were. He said if they were so satisfied then that created "a direct link between garage 9A which is the defendant's garage and garage 51 where the Hyundai was found."
22.
Later on in his summing-up the judge gave a direction pursuant to
section 35
of the
Criminal Justice and Public Order Act 1994
("the CJPOA") on the possible inference that the jury could draw from the fact that the appellant had not given evidence. As already indicated, the judge specifically referred to the evidence of one witness that the appellant suffered from panic attacks. The judge referred to Mr Metzger's submission to the jury that this was an "excuse" for the appellant not giving evidence so the jury should draw no adverse inference from that fact: (see summing-up page 29G to H).
23.
On the ground of appeal for which leave has been given, Mr Metzger submits that the judge was wrong to refuse the defence leave to adduce the psychiatric report. The report contained evidence, he submits, that would demonstrate to the court that the mental condition of the appellant, as the accused, was such as to make it "undesirable for him to give evidence", within the meaning of
section 35(1)
paragraph (e) of the CJPOA. He submits that if the court had been satisfied of that then by virtue of
section 35(1)
, the jury would not be entitled to draw such inferences as seemed proper from the failure of the appellant to give evidence as it otherwise would, pursuant to
section 35(3)
of
that Act
. Therefore, Mr Metzger submits, the judge would have been obliged to direct the jury that it was not to draw any such adverse interferences. Mr Metzger has drawn our attention, in particular, to the decision of this court in R v Anwar & Ors
[2008] 2 Cr App R 36
, at page 532.
24.
Mr Drew submits that the judge was entitled to refuse to permit the evidence to adduce the report in the circumstances in which the leave was sought and therefore the judge took the right approach in his summing-up in giving his directions in the way he did.
25.
Sections 35
subsections (1), (2) and (3) of CJPO Act 1994, state as follows:
"(1) At the trial of any person who has attained the age of fourteen years for an offence, subsections (2) and (3) below apply unless—
(a) the accused's guilt is not in issue; or
(b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence;
but subsection (2) below does not apply if, at the conclusion of the evidence for the prosecution, his legal representative informs the court that the accused will give evidence or, where he is unrepresented, the court ascertains from him that he will give evidence.
(2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.
(3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question."
26.
Section 35(1)
(b) of CJPOA makes it clear that subsection (2) will not apply if "it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence." The phrase "it appears to the court" must mean that there has to be some evidence before the court of the physical or mental condition that will entitle the court to reach the conclusion that it would be undesirable for the defendant to give evidence. If a ruling is to be sought from the judge, such evidence has to be adduced in a
voir dire
. But the judge can decline to make a ruling in advance. The defence must then produce evidence before the jury, otherwise the judge is not obliged to direct the jury in relation to the effect of that subsection.
27.
It is important to note the precise terms of sub
section 35(1)
(b). The physical or mental state has to be such that it is "undesirable for the accused to give evidence." That must mean that because of the defendant's physical or mental state, if he gives evidence it will have a significantly adverse effect on him, such as to make it "undesirable" for him to give evidence. Stanley Burnton J pointed out in
R (DPP v Kavanagh)
[2005] EWCA 820 at paragraph 18, [2006] Crim LR 370, that a physical or mental condition that may merely cause some difficulty in giving evidence is not enough to satisfy
section 35(1)
(b) of CJPO. We agree with that statement.
28.
The Criminal Procedure Rules came into effect in April 2005. In the words of Thomas LJ in
DPP v Chorley Justices
[2006] EWHC (Admin) 1795, at paragraph 24, the rules effected a "sea change" in the way which criminal cases should be conducted. Rule 1.2 imposes a duty on the participant in a criminal trial to prepare and conduct the case in accordance with the "overriding objective" set out in rule 1.1 ie that criminal cases be dealt with justly. One of the requirements of doing that is that the case will be dealt with efficiently and expeditiously: (see Rule 1.1(2)(e). Rule 1.2 also imposes a duty on participants in a criminal trial to comply with the CPR. Rule 3.2 imposes a duty on the court to manage cases actively. This duty includes the early identification of "the real issues" and ensuring evidence is presented in the shortest and clearest way. Rule 3.3 imposes a duty on each party to a criminal trial to assist the court in discharging its duty under CPR 3.2, either without a direction, or with one if necessary.
29.
Part 24 of the CPR deals with expert evidence. CPR 24.1(1) stipulates that any party who proposes to expert evidence from the proceedings shall "as soon as practicable" furnish the other party and the court with a statement in writing of any findings or opinion which he proposes to adduce by way of such evidence and to notify the expert of this disclosure.
30.
In our view the effect of CPR Parts 1.2 and 3.3 together is that it is incumbent upon both prosecution and defence parties to criminal trials to alert the court and the other side at the earliest practical moment if it is intending or may be intending to adduce expert evidence. That should be done if possible at a PCMH. If it cannot be done then it must be done as soon as the possibility becomes live. The nearer the start of the trial, the greater the urgency in informing the court and other side of the possibility of adducing expert evidence so that appropriate steps can be taken by the court and the other side to manage the expert evidence in an efficient way.
31.
In this case the defence failed totally to comply with either the spirit or the letter of the CPR. The report of Dr Sain must have been commissioned well in advance of 25th September 2008 when Dr Sain saw the appellant. No one informed the prosecution or the court. The report is dated 30th September 2008, so that Dr Sain must have formed the view on the issues he had dealt with before then. If he informed his solicitors orally that did not result in anyone else being alerted. Even accepting that defence counsel did not get the report until 3rd October, there is, in our judgment, no excuse for the failure between the 3rd October and 1.40 pm on 13th October 2008 to inform the prosecution that the defence might wish to adduce this expert evidence in support of a decision not to call the appellant to give evidence.
32.
We entirely agree with the judge's view that the defence was in grave breach of the Criminal Procedure Rules. We also agree with his view that the decision not to serve his psychiatric report until a final decision had been taken not to call the appellants to give evidence as a witness was a "deliberate tactical ploy" by the defence. It was nothing less than an attempt to ambush the prosecution.
33.
If Dr Sain was not to give oral evidence about the contents of his report, then as
section 30(2)
of the
Criminal Justice Act 1988
makes plain, the evidence in his report could not be adduced without the leave of the court. In the circumstances we have set out the judge would have been fully entitled not to permit the report to be put to the jury if Dr Sain was not to give oral evidence.
34.
If, as has been stated by Mr Metzger today, it had been intended to call Dr Sain, so that
section 30
of
Criminal Justice Act 1988
did not apply, the judge was, in our view, entitled to refuse to permit that evidence to go before the jury for two reasons. First, because of the irregular way in which it was sought to adduce this expert evidence, as we have already pointed out.
35.
However, there is a second, substantial, reason. In our view, the opinion of Dr Sain, as expressed in the concluding paragraphs of his report which we have quoted, does not demonstrate that the mental condition of the accused made it "undesirable for him to give evidence" within the meaning of
section 35(1)
(b) of CJPOA. The conclusion of the report says, first, that the appellant would have "extreme difficulty in giving evidence". That is quite common among defendants and other witnesses who give evidence in criminal trials. That does not in itself make it "undesirable" that that person should give evidence. The report says next: "The stress and appearing in the court in person could become counterproduction towards his mental health." That states a possibility only. There is no degree of certainty that the experience of giving evidence will adversely affect the mental health of the appellant, so that it is therefore "undesirable" that the appellant should have given evidence. Lastly the report states that it is "very unlikely that he will be able to cope stressors to appear in the court." That sentence is a little difficult to understand but virtually all witnesses in court experience stress, sometimes considerable stress. The comment says nothing about how the experience and stress might affect the appellant's physical or mental health.
36.
As for
Anwar
, on which Mr Metzger relies, that is an entirely different case. In that case, as is plain from the report at paragraph 28, when the judge received the reports from Professor Nell and Dr Lord, he accepted the two medical experts' evidence and concluded that it was undesirable for the appellant to give evidence on that basis. The judge only changed his mind about the direction that he was going to give to the jury because of the even later production of the information that the accused in that case had been the subject of a previous conviction to which the judge had not been referred before. Therefore the circumstances in that case were entirely different from the present. We are not convinced that it is of any value in the circumstances of the present case.
37.
Once the judge had rightly held that the evidence should not be put before the jury, then there was no basis within
section 35(1)
(b) to prevent the judge from giving an "adverse interference" direction to the jury. Of course he retained a discretion on what he directed: see
R v Cowan
[1996] QB 373
at 380E. But the judge decided to give the adverse inference direction in the terms that he did and he cannot be criticised either for deciding to do so or for the terms of the direction. Therefore, this ground of appeal is dismissed.
38.
We can deal shortly with the other ground concerning the evidence relating to the continuity of custody of the padlocks and the keys. At the time that Mr Metzger made his submission to the judge on 8th October that there should be a
voir dire
on this issue the judge had seen the witness statements of the police officers concerned. During the submissions on the
voir dire
he was referred to parts of their statements. The judge could decide there and then whether on the face of statements of the police officers, there was credible evidence to go to the jury to prove the connection between the keys found in garage 9A and the padlocks removed from garage 51. The judge was plainly satisfied that there was such evidence. In those circumstances, there was no point in having a
voir dire
. The judge's ruling was correct.
39.
That application is therefore refused.
40.
The appeal on conviction is therefore dismissed.
(Submissions re: sentence)
41.
LORD JUSTICE AIKENS: Mr Metzger has renewed the application for leave to appeal on sentence.
42.
The applicant was found guilty of participating in an armed robbery in which some £52,000 in value was taken in all. By its verdict the jury found that the applicant was armed with a sawn-off shotgun and was disguised.
43.
The applicant had a bad criminal record including offences of violence, although we accept that nearly all of those convictions are old offences.
44.
Mr Metzger has pointed out that there was personal mitigation available to the applicant. First of all, the judge did, by the time that he came to give sentence have before him the psychiatric evidence of Dr Sain. Also Mr Metzger submits that a very strong mitigating factor was that, in the course of the armed robbery, no injury was inflicted on anyone. No one was ill-treated and the gun was neither pointed at anyone, nor used in any way.
45.
Despite these submissions, in our view, in the circumstances of this case, the sentence of 12 years' imprisonment was fully justified. We cannot regard that sentence as one that was either wrong in principle or was manifestly excessive.
46.
Therefore, the application for leave to appeal on sentence must be refused. | ```yaml
citation: '[2009] EWCA Crim 2519'
date: '2009-11-05'
judges:
- LORD JUSTICE AIKENS
- 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
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judges: <list of judge full names>
```
=====
{context}
======
| No:
2012/6256/B3
Neutral Citation Number:
[2013] EWCA Crim 2313
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Friday, 22 November 2013
B e f o r e
:
LADY JUSTICE SHARP DBE
MR JUSTICE GRIFFITH WILLIAMS
MR JUSTICE LINDBLOM
- - - - - - - - - - - - -
R E G I N A
v
JACOB CROSSLAND
- - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - -
Mr M Smith
appeared on behalf of the
Appellant
Mrs K Taylor
appeared on behalf of the
Crown
- - - - - - - - - - - - -
J U D G M E N T
1.
LADY JUSTICE SHARP: The provisions of the
Sexual Offences (Amendment) Act 1992
apply, as do the provisions of
section 39
Children and Young Persons Act 1933
. This judgment will be anonymised accordingly.
2.
This is an appeal against conviction with the leave of the single judge. The appellant Jacob Crossland is now 21 years old. On 9th October 2012 he was convicted after a trial of two rapes, contrary to
section 1(1)
Sexual Offences Act 2003
("
the Act
"), counts 3 and 6, and four counts of sexual activity with a child contrary to
section 13(1)
of
the Act
, counts 1 to 4. No verdicts were taken on two further counts of sexual activity with a child which were alternative counts to the rape charges.
3.
He was sentenced to a total of eight years' detention in a young offenders’ institution: three years on count 3 and five years consecutive on count 6, to which sentences of two years' detention on each of the remaining counts were concurrent. He was made the subject of a Sexual Offences Prevention Order, required to comply with provisions as to notification and included on a list of relevant persons by the Independent Safeguarding Authority.
4.
The first rape was alleged to have been committed against C, who was born on 18th June 1996, and the second rape was alleged to have been committed against K, who was born on 4th July 1996. C was the complainant in relation to the remaining counts on which the appellant was convicted. It was common ground that the appellant knew both K and C with whom he was friends on Facebook. K also had a connection with the appellant's mother. She and the appellant lived within close proximity to each other.
5.
C and K were at the same school in the same year group and had been friends when they were about 13, but by the time of the alleged incident involving K they were acquaintances rather than friends.
6.
K was allegedly raped on 7th January 2011 when she was 14 and the appellant was 18. She was seen by the police shortly afterwards and told them amongst other things that C used to go out with the appellant. C was then interviewed. One of the things she told the police was that the appellant had injured his penis when he had raped her.
7.
The appellant was arrested and interviewed and denied all the allegations as fabrications. He said he had an alibi in respect of the allegation made by K as he was in Leeds that day having some tattoos done to his arm. He was asked whether he had ever injured his penis when having sex with a partner and he said "no". He made no comment at a second interview apart from confirming the summary given to him of the account he had given in the first.
8.
The appellant's defence case statement served shortly before the trial was consistent with the account given by the appellant in interview, but now said that the appellant’s penis had been injured later, during a relationship with a different girl, ST. It went on: "The defence suspect that C might be aware of that type of injury as she had a physical relationship with a lad called [AH] to whom a similar injury occurred. [AH] also knew that the defendant had suffered the same injury and may have discussed it with (C)".
9.
Following service of the defence case statement, the prosecution served further evidence (from a tattoo artist and a mobile phone expert) which undermined the appellant’s alibi and showed the appellant's phone in use in the area in which both he and K lived all day on 7th January 2011. A statement from AH was also served in which he said in categorical terms that he had never been in a relationship with C, sexual or otherwise, nor had he ever sustained any sort of injury to his penis.
10.
K gave evidence that on 7th January 2011 (she thought it was that day because she had been at home unwell from school all that week) the appellant popped up on Facebook and said he had something to bring round for her mother. He came round by taxi to her home. When he arrived he started pleading for a kiss. She refused and he went up to her bedroom. She followed him to see what he was doing and found him on her bed. He dragged her into the bedroom, pushed her against the wall and tried to kiss and cuddle her. He pushed her onto the bed and despite her protests pulled her trousers down and forced himself upon her, penetrating her with his penis. The appellant left shortly afterwards in a taxi. She told her boyfriend about a week later, then her mother, and the police were then contacted.
11.
A taxi driver, R, was called. He knew both the appellant's family and K's family. He was not able to pin down a particular date but at about the time of the alleged offence against K, he said he had driven the appellant in his taxi from the appellant's house to K’s house.
12.
K's mother said K had been away from school for the whole of the week ending on Friday 7th January. About a week later, K told her that she had been raped.
13.
C said she had a short relationship of about two weeks with the appellant in the summer of 2009 when she was 13 years old and he was 17. She felt bad about the fact that they had split up and in about October 2009 they went for a walk together in the woods. Whilst they were there the appellant pushed her against a tree and penetrated her with his penis, even though she told him to stop. He did stop but only because he had damaged his penis. She said he snapped his foreskin. She said there was blood everywhere and he said he was going to the local A&E department. They stopped seeing each other for a while, but later on, there were four further incidents of consensual sexual activity between March 2010 and March 2011 when she 13 or 14, which occurred because she was “a gullible girl”. Two were of oral sex (these formed the basis of counts 1 and 2) and two were sexual intercourse (these formed the basis of counts 4 and 5). Three of the incidents had taken place at the appellant's house and one at his grandmother's house of which C gave descriptions.
14.
At the close of C’s evidence in chief (which had been given by showing the jury her ABE interview) the defence asked to cross-examine C pursuant to the provisions of
sections 41
and 42 the
Youth Justice and Criminal Evidence Act 1999
.
15.
Sections 41
and 42 provide so far as relevant:
"41 Restriction on evidence or questions about complainant's sexual history.
(1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court—
(a) no evidence may be adduced, and .
(b) no question may be asked in cross-examination,
By or on behalf of any accused at the trial, about any sexual behaviour of the complainant.
(2) The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied—
(a) that subsection (3) or (5) applies, and
(b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.
(3) This subsection applies if the evidence or question relates to a relevant issue in the case and either—
(a) that issue is not an issue of consent; or
...
(4) For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.
(5) This subsection applies if the evidence or question—
(a) relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and
(b) in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused.
(6) For the purposes of subsections (3) and (5) the evidence or question must relate to a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant (and accordingly nothing in those subsections is capable of applying in relation to the evidence or question to the extent that it does not so relate).
...
(8) Nothing in this section authorises any evidence to be adduced or any question to be asked which cannot be adduced or asked apart from this section.
42 Interpretation and application of
section 41
.
(1) In
section 41
—
(a)'relevant issue in the case' means any issue falling to be proved by the prosecution or defence in the trial of the accused;
...
(c) 'sexual behaviour' means any sexual behaviour or other sexual experience, whether or not involving any accused or other person, but excluding (except in
section 41(3)
(c)(i) and (5)(a)) anything alleged to have taken place as part of the event which is the subject matter of the charge against the accused... "
16.
In accordance with those provisions, the court may not give leave in relation to any evidence or question of the nature which potentially falls under
section 41
unless it is satisfied that
section 41(3)
or
section 41(5)
applies and that the refusal might have the result of rendering unsafe a conclusion of the jury or the court on any relevant issue in the case falling to be proved by the prosecution or the defence at the trial.
17.
The defence said it wanted to ask C about her sexual relationship with AH having regard to the matters raised in the defence case statement to which we have referred. It was submitted that the defence was not simply trying to impugn C's credibility, but wanted to ask these questions as they were relevant to how she could have come to know about the appellant's condition and injury. The prosecution submitted these matters could be dealt with without going into C's sexual history.
18.
The Recorder rejected the application. In his view there was arguably a relevant issue within
section 41(3)
. However it was a reasonable assumption that the purpose or main purpose for which the evidence would be adduced or questions asked was to establish or elicit material to impugn the credibility of the complainant as a witness, and refusal of leave would not lead to an unsafe conviction. In view of his ruling he said the appellant should not be cross-examined as to how C came to know of the injury, and he left open the possibility that the issue could be raised again.
19.
By agreement between the prosecution and the defence, AH was not then called to give evidence.
20.
The jury heard from a further witness JW with whom C had been in an on/off relationship for about two years. He said in about April or May 2010 C told him that the appellant had bent her over a tree, tried to have sex with her, but then his "banjo snapped" which meant his penis was bleeding. He said she was upset and had not told anyone about this before. He suggested she tell her family but she never raised it again.
21.
Records from the local hospital showed the appellant had gone to hospital on 2nd December 2009 and complained he was having sex with his partner when he found a wound to his penis. The notes recorded the appellant saying a similar thing had happened to him before: two weeks and also two months earlier.
22.
The appellant, who was of previous good character, acknowledged he knew both the complainants but in his evidence maintained his account that both girls were making the allegations up. He now accepted he was in the vicinity of his home and that of K, on 7th January 2011 and said he had got his dates mixed up. As for the injury to his penis, he said this had resulted from sexual activity with a different girl, ST; and he had denied having such an injury in interview because he had misunderstood the question. He also said that C's descriptions of his grandmother's house and his own could have been gleaned from Facebook.
23.
A statement from ST was read. It confirmed she had a brief relationship with the appellant from about 31st October 2009 which lasted about three weeks and during which the appellant's penis started bleeding whilst they were having sex and she and the appellant then went to the local A&E department.
24.
Mr Smith, who appears on behalf of the appellant today and appeared for him at the trial, submits the judge was wrong to refuse the
section 41
application as the line of questioning he wished to pursue with C related to an important issue in the case, how she could have come to know of the appellant's injury, and it did not relate to credit. He submits it was evidently unfair to prevent the appellant from exploring this issue, not least because the Recorder when summing the case up to the jury identified it as one matter they might wish to consider.
25.
We do not accept that submission. In our view this was not a matter for an application under
section 41
at all. The appellant had an unusual problem affecting his penis. The obvious question for the jury was how C would have known about it unless she had had intercourse with him at some point, as she said she had and the appellant denied. That was the issue. The appellant's somewhat tentative suggestion in the defence case statement was that she may have known about it because AH told her. However there was no basis to cross-examine C about what AH may or may not have told her, except speculatively having regard to the content of AH’s statement in which he said very clearly not only that he had no such injury but that he had never had any conversation with C of the nature described in the defence case statement. To this the appellant's instructions on the matter, to which Mr Smith referred us, could add nothing.
26.
The Recorder at one point during the course of his exchanges with Mr Smith said he might be willing to permit the issue – that is whether AH had ever spoken to C about the appellant’s condition/injury – to be explored with both C and AH but without going into whether C and AH did or did not have a sexual relationship. As it was, the fact that the defence did not then require AH to be called after the Recorder made his ruling does not surprise us. First of all, as we have already said, there was no basis apart from a speculative one upon which to cross-examine either C or AH. Further, if AH had been called and asked whether the appellant had told him of his unusual condition and whether he had then spoken of it to C, there was every risk that AH would have said, as his statement did, that no such conversation with either the appellant or C had ever taken place, which would have put the appellant in an even more difficult position than he was already in.
27.
Whether C and AH had had a sexual relationship, which was what Mr Smith said he wanted to ask C about, was simply irrelevant to any issue the jury had to consider, even if it was the case that curiously AH and the appellant suffered from the same unfortunate condition. In our judgment the Recorder was thus right to refuse the application in respect of evidence which could only, and impermissibly, go to credit.
28.
We add this. We note that no notice was given of the
section 41
application by the defence. It was not made in writing and the questions which the defence wished to ask were not particularised. This was a serious and inexcusable breach of Part 6 of the Criminal Procedure Rules. The rules are there for a reason. The failure to comply with them makes it more likely that things will go wrong at the trial, either because the statutory protection given to the complainants in sexual offence proceedings will be undermined or because the defence will be prohibited from pursuing a legitimate line of questioning. In this case, the Recorder had to deal at short notice with the application when neither the basis for it nor the questions the defence wanted to ask were clearly articulated to him even orally. Fortunately, notwithstanding those difficulties, in our judgment for the reasons we have given we consider he came to the right conclusion.
29.
Two further grounds of appeal were advanced in the written grounds of appeal, but in the event Mr Smith pursues only one of them before us today. He submits that the Recorder was wrong to tell the jury that the date of the alleged offence against K (7th January 2011) was not a material averment.
30.
In his summing-up the Recorder said this:
31.
"I have no more to say about the indictment except that the first five counts, all concerning C, deal with a range of times, whereas count 6 deals with a specific date, 7th January 2011. Now, that specific date obviously is important as a matter of evidence, but as a matter of law the date alleged is not crucial to a finding of guilt, because, if you think about it, if you were satisfied on the evidence that K had been raped but that it had taken pleas on the Thursday before or the Saturday after, then the defendant would still be guilty. The prosecution do not have to satisfy you so that you feel sure that this was not only rape but rape on 7th January of 2011, but of course because a specific date is alleged then this brings into play the issue of what the defendant was in fact doing on that day, and more of that later."
In our view no criticism can be made of that direction. As the Recorder went on to remind the jury, the point as to date was a matter of evidential significance given the way the case on this count was advanced by the prosecution and having regard to the evidence they had heard which bore on this issue during the trial; and he then gave them full and careful directions on the material evidence, including what the appellant had said about the matter.
32.
We are not therefore persuaded by either ground of appeal advanced but are satisfied the appellant’s conviction on all counts is safe. The appeal against conviction is therefore dismissed. | ```yaml
citation: '[2013] EWCA Crim 2313'
date: '2013-11-22'
judges:
- LADY JUSTICE SHARP DBE
- MR JUSTICE GRIFFITH WILLIAMS
- MR JUSTICE LINDBLOM
``` |
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:
200604630/B4-200606558/B4
Neutral Citation Number:
[2007] EWCA Crim 586
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Date:
Wednesday, 14th February 2007
B E F O R E:
LORD JUSTICE KEENE
MRS JUSTICE DOBBS DBE
MR JUSTICE WALKER
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
-v-
CARL PRITCHETT
NATHAN LANGSTON
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
A Merrill Communications Company
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
MR S STIRLING
appeared on behalf of the APPELLANTS
MR J BUTTERFIELD
appeared on behalf of the CROWN
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE KEENE: On 7th July 2006 at Wolverhampton Crown Court, before His Honour Judge Dudley, the appellant and the applicant were convicted of one count of keeping a brothel used for prostitution, contrary to
section 33
A of the
Sexual Offences Act 1956
. The appellant, Pritchett, was subsequently sentenced to 2 years' imprisonment and the applicant, Langston, to a community order of 180 hours unpaid work. Mr Pritchett now appeals against conviction by leave of the Single Judge and Mr Langston's application for an extension of time and for leave to appeal against conviction has been referred to this Court by the Registrar. We grant his applications and we therefore treat both men as appellants. A co-defendant at the Crown Court, Susan Richards, changed her plea to one of guilty and was given a community order with 250 hours of unpaid work required.
2.
Section 33
A of the
Sexual Offences Act 1956
was in fact inserted into that statute by an amendment contained in the
Sexual Offences Act 2003
,
section 55
. That makes it an offence to keep, or to manage or act or assist in the management of a brothel to which people resort for practices including prostitution. This new provision came into effect on 1st May 2004 and it is not contended that it has retrospective effect so as to catch activities taking place before that date.
3.
In the form in which the indictment in the present case was originally worded and signed, no problem arose. It alleged that the three named defendants, on 29th September 2005, had kept, or managed, or acted or assisted in the management of a brothel, namely "Cuddles", 497 Hagley Road, Bearwood. That charge arose out of a police raid on those premises on that date in September 2005. There was ample evidence that the premises were being used as a brothel within the terms of
section 33
A on that date. For example, police found a number of scantily clad women on the premises, condoms, wet Tampons and a couple who were having sexual intercourse. There was further evidence to similar effect.
4.
The central issue at trial was whether these appellants knowingly managed or assisted in the management of those premises as a brothel. In order to help prove their case on this issue, the prosecution wished to rely on certain documentation earlier than the date of the police raid, and they applied, at a pre-trial hearing, to amend the indictment. That amendment was unopposed and it was duly granted. As amended the indictment charged the appellants and their co-defendant with committing the
section 33
A offence "between the 15th October 1998 and the 30th day of September 2005". Nobody appears to have woken up to the fact that such an offence could only relate to 1st May 2004 and later, possibly because the new provision appears in
the 1956 Act
. In any event this defect remained unnoticed throughout the trial. Only after sentence had been passed, on 30th August 2006, did counsel for the appellant Pritchett realise that there was a defect. It is the consequences of that defect and of the judge's directions to the jury which form the basis of these appeals.
5.
The first ground advanced on behalf of both appellants is that the indictment did not comply with the
Indictments Act 1915
,
section 3
, and Rules 5 and 6 of the Indictment Rules 1971.
Section 3(1)
of
the 1915 Act
requires an indictment to contain a statement of the specific offence or offences charged "together with such particulars as may be necessary for giving reasonable information as to the nature of the charge". Rule 6 of the 1971 Rules requires the particulars of the offence to "disclose the essential elements of the offence." There then follows a proviso in these terms: "provided that an essential element need not be disclosed, if the accused person is not prejudiced or embarrassed in his defence by the failure to disclose it."
6.
On behalf of the appellants, Mr Stirling argues that the particulars given in this indictment included a period when the offence complained of did not exist, that is to say the period prior to 1st May 2004. In consequence, it is said, the indictment was and is invalid. The particulars cannot extend beyond the period covered by the statute. Moreover, submits Mr Stirling, a defendant is entitled to know when the alleged offence is taking place and the case which he has to meet. No authority has been cited to us on behalf of the appellants in support of the proposition that the error identified in the present case in the particulars of offence render the indictment null and void.
7.
It seems clear to this Court that the way in which the indictment was ultimately formulated did give rise to an irregularity. That, however, is not the end of the matter. The question is whether that defect renders the indictment automatically a nullity, so that the convictions must be seen as unsafe for that reason. Normally the date of an alleged offence is not to be regarded as a material averment in an indictment (see
R v Dossi
(1918) 13 Cr App R 158
). There may however be situations where the dates given simply do not disclose a criminal offence because, for example, the offence in question did not exist at all on the date set out. That would have been the case with the present indictment, had the period cited been entirely before
section 33
A came into effect. That however was not the case here. Offences of this kind have been held to be continuing offences (see
R v Anderton and Cooper
(1980) 72 Cr App R 232
). It does not have to be established by the Crown in such a situation that a continuing offence of that kind continued throughout the whole of the period. It would suffice if the Crown was able to prove the commission of the offence in the period from 1st May 2004 onwards.
8.
It remains, of course, the fact that the wording of the particulars of offence here produced an irregularity, as we have indicated. But, in our judgment, this did not render the indictment itself a nullity. Guidance on that aspect is to be found in the decision of the House of Lords in the case of
R v Ayres
[1984] AC 447
. There, Lord Bridge of Harwich, giving the only substantive judgment, said this at page 460H to 461B:
"If the statement and the particulars of the offence in an indictment disclose no criminal offence whatever or charge some offence which has been abolished, in which case the indictment could fairly be described as a nullity, it is obvious that a conviction under that indictment cannot stand. But if the statement and particulars of offence can be seen fairly to relate to and to be intended to charge a known and subsisting criminal offence but plead in terms which are inaccurate, incomplete, or otherwise imperfect, then the question whether a conviction on that indictment can properly be affirmed under the proviso must depend on whether, in all the circumstances, it can be said with confidence that the particular error in the pleading cannot in any way have prejudiced or embarrassed the defendant."
That reference in the passage quoted to "prejudiced or embarrassed the defendant" reflects the same approach as is found in the wording of Rule 6 of the 1971 Rules. But in any event, the words were being used by Lord Bridge in that passage as a way of applying the proviso, which at that time existed, in the wording of
section 2(1)
of the
Criminal Appeal Act 1968
. That proviso has since gone but has been replaced by the test which this Court is now required to apply by virtue of
section 2(1)
, as it is now worded, namely whether this Court thinks the conviction is unsafe. That will not always produce the same result as the earlier test under the original proviso (see the decision in
R v Graham
[1997] 1 Cr App R 302
). Nonetheless, it seems to us that the approach of the House of Lords in
Ayres
, as expressed by Lord Bridge is, on the facts of the present case, relevant to the issue of the safety of these convictions. We shall turn to those in a moment.
9.
Before we do so, it is necessary to summarise the evidence at trial, particularly the evidence of the involvement of the appellants. Both of them were found by a police officer in the kitchen of the premises at 2.30 am of the morning immediately following the evening raid by the police on 29th September 2005. There was evidence that they said to a police officer that they were cleaners.
10.
So far as Mr Pritchett is concerned, the Crown also relied at trial on evidence that he took possession of the copy of the search warrant intended and marked for the owner/ occupier of the premises and was the director and main share holder of the company CP Limited, which was the freehold owner. He had the keys to a car parked outside, a Mercedes. He did not declare employment as a cleaner to the Revenue and he had a previous conviction, in 1990, for living on immoral earnings which was said to show propensity. All of those factors could be said to concern the situation at or around the time of the police raid in September 2005. In addition, the Crown relied on evidence that he had made a witness statement on 27th March 2004, in which he describe himself as "just filling in as the manager" at Cuddles Massage Parlour. There was a second witness statement by him to like effect, dated 22nd April 2004.
11.
In the case of Langston, he did not declare employment as a cleaner to the Revenue. His home was owned by CP Limited, but most strikingly, there was a sign on the notice board in the premises, at the time of the police raid, with a telephone number saying to call "Nathan" if there were any problems. Nathan was Mr Langston's first name. He sought to explain this in interview on the basis that the notice was there in case there were any maintenance problems. Of some significance, it is to be observed that neither appellant gave evidence at trial.
12.
With that summary of the evidence, we can turn to the issue of the safety of the convictions. In the case of the appellant, Pritchett, this is bound up with the second ground of appeal, which asserts a misdirection by the judge in his summing-up. The grounds of appeal in Langston's case do not rely on such a ground for reasons to which we will come. The alleged misdirection arises because the judge never sought to get the jury to focus on the period from 1st May 2004 onwards. He spelt out the two issues for the jury in the following terms:
"The prosecution, first of all, have to prove that the premises concerned were acting as a brothel, and, secondly, if they are going to succeed against the defendant, they have to prove the other aspect, that they managed or assisted in the management of the brothel."
13.
In so far as the judge dealt with what period of time was relevant for these issues he said, at page 5H onwards:
"Dates are never a really important or rarely a really important element of a criminal charge, because it doesn't, in one way, really matter when it was. The question is: did it happen? Are you sure that it happened? The prosecution have selected a fairly wide bracket, which looks as if it goes about the time of the incorporation of the company CP Limited, until the 30th September, and of course 30th September was the day after the police raid.
The prosecution don't have to prove that each of these defendants was involved on every single hour of every single day between those dates. They have to prove to your satisfaction, so that you are sure, that the defendant whose case you are considering was involved in the management of or assisting in the management of the brothel at some stage during that very wide period. And of course, as has already been pointed out, the bulk of the evidence in the case comes from one day -- comes from 29th September. It goes beyond that, we know, from notices and things that were found on the premises. But don't worry about the dates: concentrate on whether the prosecution have proved the two important elements in the case."
14.
The omission of any reference to the period "from 1st May 2004 onwards", so far as whether these premises were a brothel, is not said to be of significance. There was clear and vivid evidence that they were being so used on 29th September 2005, at the time of the police raid, and in contrast there was only limited evidence that they were being so used before 1st May 2004.
15.
But on the issue of the involvement of the appellants in the management of premises and particularly the appellant, Pritchett, the omission is said to be significant. Mr Stirling submits that the judge failed to direct the jury that they had to be satisfied that the offence was committed on or after 1st May 2004, and that this appellant was involved in the management at that time. The conviction, it is said, cannot be seen as safe. It is contended that there was here a clear misdirection. So far as the safety of the conviction is concerned, it is argued on behalf of Mr Pritchett that, as at 29th September 2005, the evidence against him was merely his arrival at the premises with
15.
Mr Langston, there describing themselves as cleaners and Mr Pritchett accepting the warrant. Such other evidence as there was consisted simply of Mr Pritchett's connection with others involved and the two witness statements which he had given to the police, in March and April 2004, referring to himself in some terms as "manager". Mr Stirling draws attention to the fact that Crown described those witness statements as "very compelling evidence" if accurate. It is submitted there could be no doubt that such evidence would have been very significant for the jury. As for the safety of the conviction of the appellant, Pritchett, as now to be judged by this Court, Mr Stirling submits that none of the evidence shows his involvement in 2005 in the management. There is, it is said, no evidence to that effect and this Court cannot be sure that a reasonable jury would have convicted, if they had been properly directed on the evidence as it stood.
15.
For the Crown, Mr Butterfield accepts that there was a misdirection and also that some of the evidence about Mr Pritchett and his involvement in the management related to such involvement before 1st May 2004. But he submits that the conviction is nonetheless safe. The evidence from before that date was, it is said, still relevant and admissible, given that there was no evidence to suggest that the position had changed after that date and, in addition, there was also evidence specifically relating to the period after the statutory provision came into effect on that date. Mr Butterfield refers, in that connection, to Mr Pritchett's presence at the premises in the small hours of the morning on 29th September, to his taking and retaining the search warrant and to the absence of any rebuttal evidence from him. It is submitted on behalf of the Crown that it is inconceivable that the jury would not have found Mr Pritchett guilty in respect of his management of the brothel after 1st May 2004.
16.
We can deal, first and briefly, with the position concerning the appellant, Langston. Very little of the evidence about his involvement in the management of the premises related to the period before 1st May 2004. Consequently there can be no doubt that, if the jury had been properly directed to consider that involvement at the relevant time (namely on or after that date), they would still have convicted. This, no doubt, is why this line of argument does not form one of his grounds of appeal.
17.
The position in respect of the appellant, Pritchett, is somewhat more complicated. The evidence from which his involvement in the management at the relevant time could be deduced does relate to the time both before and after the date when
section 33
A came into effect: the mere fact that evidence emanates from before that date does not render it irrelevant. Mr Butterfield is right in saying that the evidence before that date has relevance, in so far as the jury might infer this appellant's involvement after that date. They were not, of course, directed to consider whether such an inference could properly be drawn.
18.
The evidence from the period after 1st May 2004 consisted, as we have indicated, of Mr Pritchett's presence at the premises in the early morning after the raid, his explanation at the time that he was a cleaner, the absence of any tax return declaring his employment there, his role in the company owning the freehold of the premises and his taking of the owner/occupier's copy of the search warrant. The fact that the car he used was outside at the time, seems to us, to add very little, if anything, to this, although it may be unusual for a cleaner to be driving a Mercedes. His conviction for living on immoral earnings, in 1990, was also relevant, though it was of some antiquity when considered 15 years later.
19.
The jury must have been influenced by Mr Pritchett's witness statements in early 2004, in which he effectively described himself as "managing the massage parlour." This evidence was indeed described by the judge in summing-up as "very compelling evidence". Certainly it was, if one was considering the period in the indictment from 1998 to September 2005, though, as we have already said, it is not without potential significance, even if one's consideration is confined to the period from 1st May 2004 onwards. A jury would be entitled to draw an inference from that evidence, that he was still a manager in 2005, unless there was some evidence to cast doubt on that.
20.
The question for this Court is whether we are satisfied that, if the jury had been properly directed about how to approach all this evidence, the only reasonable and proper verdict in the case of the appellant, Pritchett, would have been one of guilty (see the decision in
R v Stirland
(1945) 30 Cr App R 40
and
R v Davis, Rowe & Johnson
[2001] 1 Cr App R 115
, at 132). In other words: must any reasonable jury have been sure, if properly directed on the evidence, that Mr Pritchett was indeed involved in the management of this brothel in the period between 1st May 2004 and 30th September 2005?
21.
We have concluded that any such jury would inevitably have been sure of this appellant's guilt. They would have been entitled to take into account his earlier witness statements, as we have indicated, together with the absence of any evidence to suggest that the position had changed since then. When that is added to the appellant's presence on the premises, shortly after the police raid, along with the appellant, Langston, his ownership through the company CP Limited of the premises, his false explanation for his presence there, namely that he was cleaner, and the fact that he gave no evidence at trial to rebut the Crown's case, this Court is satisfied that any reasonable jury would have been bound to convict. That being so, these appeals against conviction are dismissed. | ```yaml
citation: '[2007] EWCA Crim 586'
date: '2007-02-14'
judges:
- LORD JUSTICE KEENE
- MRS JUSTICE DOBBS DBE
- 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}
======
| 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 1680
No. 202303727 A3
202303753 A3
Royal Courts of Justice
Tuesday, 19 December 2023
Before:
LORD JUSTICE WILLIAM DAVIS
MRS JUSTICE FARBEY
HER HONOUR JUDGE MORELAND
REX
v
ART
and
AJB
REPORTING RESTRICTIONS APPLY:
SECTION 45 OF THE YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999
__________
Computer-aided Transcript prepared from the Stenographic Notes of
Opus 2 International Ltd.
Official Court Reporters and Audio Transcribers
5 New Street Square, London, EC4A 3BF
Tel: 020 7831 5627 Fax: 020 7831 7737
[email protected]
Mr. G. Hughes
appeared on behalf of the Applicant ART.
Ms. K. Roxburgh
appeared on behalf of the Applicant AJB.
Ms. L. Tucker
appeared on behalf of the Crown.
_________
JUDGMENT
MRS JUSTICE FARBEY:
1
The provisions of
section 45
of the
Youth Justice and Criminal Evidence Act 1999
apply in this case. No matter relating to either of the applicants or the victim of the offence shall, while they are under the age of 18, be included in any publication if it is likely to lead members to identify that person as a person concerned in the proceedings.
2
On 2 December 2022 in the Crown Court at Norwich the applicant AJB (then aged 16) pleaded guilty upon re-arraignment to one offence of conspiracy to cause grievous bodily harm with intent, contrary to section 1(1) of the Criminal Law Act 1997. On 27 January 2023 in the same court the applicant ART (then aged 17) pleaded guilty upon re-arraignment to the same offence. On 5 October 2023, before Her Honour Judge Robinson, ART was sentenced to 3 years, 9 months and AJB to 4 years' detention in a young offender institution. Appropriate ancillary orders were made. At the date of the offence both applicants were aged 16. At the date of sentence they were both 17 years old. Their applications for leave to appeal against sentence have each been referred to the full court by the Registrar on account of their young age.
Facts
3
We turn to the facts. On 10 August 2022 at around 7.20 p.m. V1 was confronted by six males at her home address. The group comprised AJB, ART and four others, who were the applicant's co-accused. Two of V1's sons, aged 8 and 5, were inside the property. Her eldest son V2, aged 15, was not at home. The group were aggressive and told V1 that they were looking for V2. One member of the group told V1: "We came here to warn V2 we are going to kill him." The group then all began to say that they were going to kill V2. They were aggressive to V1, who feared they would push their way into the house. The males remained for 5 to 10 minutes before leaving. V1 then called the police. Officers arrived at the scene shortly afterwards.
4
All six males were found in a nearby public park. Their mobile telephones were seized. Two machetes were recovered from different places along the park footpath.
5
AJB's fingerprints were on one of the machetes. ART, AJB and the four co-accused were associated with the “Neno” gang based in Nacton in East Ipswich. The motivation for wanting to attack V2 related to rivalry with another gang, “J Block”, which operated in the area of Ipswich where V2 lived with his mother.
6
The mobile telephones of AJB and another co-accused were examined. They revealed a group conversation in which AJB reported that he thought rival gang members were on Nacton Road. He asked the group if they had found out where V2 lived. AJB sent images of houses to the group and a discussion followed as to which house belonged to V2. The group discussed finding and attacking V2 with knives. Plans were made to travel to the address by taxi. A co-accused's phone had an invoice for four machetes that were to be delivered to another member of the group, as well as screenshots of the machetes. Following the offence, V2 and his family were forced to move out of the area.
Sentencing remarks
7
The judge sentenced all six members of the group together. She rightly described the incident at V1's house as a very serious incident. She observed that V2 was vulnerable because of his age. The group had planned to use highly dangerous weapons and were intent on taking revenge on V2 for a trivial reason, relating to damage to a door at a house with which one member of the group was associated. She said that the group was lucky that V2 was not at home; otherwise, they may have been facing a murder charge. Although sentencing for a conspiracy, the judge considered the Sentencing Guideline for the completed offence of causing grievous bodily harm with intent. She was entitled to do so. She concluded that the offence fell within the highest culpability category, i.e. level A, under the guideline.
8
As regards harm, the judge noted that the conspiracy did not result in any physical harm as the intended stabbing did not take place. However, she was satisfied that the group intended to cause very serious injury or death. The offence was one of category 2 harm under the guideline. The judge was entitled to reach this conclusion on the basis of the harm which the conspiracy was intended to cause or might foreseeably have caused.
9
The conspiracy was therefore to be treated as a category 2A offence under the guideline with a starting point of 7 years' custody and a category range of 6 to 10 years' custody for an adult. It was an aggravating factor for all group members that the offence took place in a residential street in daylight when other people were around. It was a further aggravating factor that the offence took place against what the judge described as the backdrop of tensions and tit for tat violence between opposing gangs. By way of mitigation the judge took into consideration that the applicants were aged only 16 at the time of the offence, had no previous convictions and were vulnerable young people "sucked into" gang violence.
10
In relation to AJB the judge observed that the phone messages showed that he played an active part throughout in plans to carry a large knife and attack V2. He had failed to take responsibility for his offence. On the other hand, AJB had plans to apply for a railway engineer apprenticeship. He had been working with the Youth Justice Service, with the support of his family, to distance himself from negative influences.
11
In relation to ART the judge noted that ART's phone messages stated that he would stab V2 and that he wanted to borrow a balaclava. Footage from a police body-worn camera showed him wearing a dark mask. He was, however, less active in the conspiracy than others. He had accepted responsibility for what he had done. He had been working with the Youth Justice Service to distance himself, and had distanced himself, from negative influences.
12
The judge applied the Overarching Guideline on Sentencing Children and Young People (“the Overarching Guideline”). She took into consideration that the court must have regard to the principal aim of the youth justice system, which is to prevent offending and to promote the welfare of a child or young person. The approach to sentencing should be individualistic and focused on rehabilitation rather than punishment. She recognised that in determining a child's culpability the emphasis must be on emotional and developmental age as much, if not more, than chronological age. She acknowledged that a custodial sentence for a young person is a last resort and that, if a custodial sentence is imposed, the court may think it appropriate to apply a sentence falling within the region of half to two thirds of the adult sentence for those, like the applicants, aged 15 to 17.
13
The judge concluded that the offence was so serious that an adult would have received 8 years' imprisonment. Applying a one-third reduction for the applicant's age and a 25 per cent discount for their guilty pleas, she arrived at the sentences which we have mentioned already. We do not need to set out the ways in which she sentenced the co-defendants.
Submissions
14
On behalf of ART, Mr Hughes submits that the sentence passed by the judge was manifestly excessive. She had failed to give sufficient weight to ART's age, previous good character and progress towards rehabilitation since the date of the offence, such as distancing himself from gang culture and securing an apprenticeship which his detention will bring to an end. She had failed to have proper regard to the detailed Pre-Sentence Report. She ought to have accepted the recommendation in that report for an alternative to detention, namely a Youth Rehabilitation Order with Intensive Supervision and Surveillance (“YRO with ISS”). She had failed to explain why she had rejected that alternative. She had failed properly to apply the Overarching Guideline by focusing on punishment when she ought to have focused on rehabilitation and reintegration.
15
On behalf of AJB, Ms Roxburgh submits that the judge gave insufficient weight to the principles in the Overarching Guideline. She did not apply her mind specifically to the imposition of a YRO with ISS and had failed to give reasons for concluding that such a sentence would not be sufficient. She could usefully have addressed the elements of ISS. The Pre-Sentence Report made plain that AJB had rehabilitated himself through his engagement with the Youth Justice Service. He had detached himself from his negative peer group. He had a career and a realistic plan to achieve it. The Pre-Sentence Report considered that detention would be harmful to AJB's mental health and his employment prospects. Detention would increase - rather than reduce - the prospect of recidivism.
16
On behalf of the respondent, Ms Tucker, principally in writing, submits that the judge had the principles of the Overarching Guideline at the front of her mind, as well as the relevant case law. She had considered the contents of the reports. While she had not expressly spelt out in terms why the offence was so serious that she could not impose a YRO with ISS, she had clearly acknowledged that detention is a sentence of last resort for a child, but had concluded that, given the seriousness of the offence, only a sentence of detention could be justified for each of the applicants. She had applied the relevant offence guideline and had made a proper deduction for age, as well as applying the appropriate discount for the guilty pleas. The sentences imposed on each applicant were not manifestly excessive or wrong in principle.
Discussion
17
The Overarching Guideline gives guidance about the imposition of custodial sentences on children, emphasising the importance of the assessment of the Pre-Sentence Report in the judge's determination of whether the custody threshold has been crossed:
"6.44
In determining whether
an offence has crossed the custody
threshold, the court will need to assess the seriousness of the offence, in particular the level of harm that was caused, or was likely to have been caused, by the offence. The risk of serious harm in the future must also be assessed. The pre-sentence report will assess this criterion and must be considered before a custodial sentence is imposed. A custodial sentence is most likely to be unavoidable where it is necessary to protect the public from serious harm.
6.45
Only if the court is satisfied that the offence crosses the custody threshold, and that no other sentence is appropriate, the court may, as a preliminary consideration, consult the equivalent adult guideline in order to decide upon the appropriate length of the sentence."
18
The guideline goes on to state:
"6.46
When considering the relevant adult guideline, the court
may
feel it appropriate to apply a sentence broadly within the region of half to two thirds of the adult sentence for those aged 15 – 17 [...] This is only a rough guide and must not be applied mechanistically. In most cases when considering the appropriate reduction from the adult sentence
the emotional and developmental age and maturity of the child or young person is of at least equal importance as their chronological age.
This reduction should be applied before any reduction for a plea of guilty."
19
In her sentencing remarks the judge referred to
R v ZA
[2023] EWCA Crim 596
, to which we too have been referred. The court in that case emphasised, at paragraph 82, that an "entirely different approach to sentence is required than that which courts routinely apply to adult offenders", and provided a summary of the general principles. Among other things:
"(5)
The contents of the Youth Justice Service pre-sentence report and any medical/psychiatric/psychological reports will be key. Courts should consider these reports, bearing in mind the general principles at section 1 of the overarching youth guideline, together with any youth-specific offence guideline, carefully working through each.
(6)
In general it will not be helpful to go straight to paragraph 6.46 of the overarching youth guideline without having first directed the court to general principles canvassed earlier in that guideline, as well as to any youth-specific guideline. The stepped approach in the overarching youth guideline and any youth-specific offence guideline should be followed. Working through the guideline(s) in this way will enable the court to arrive at the most appropriate sentence for the particular child or young person, bearing in mind their individual circumstances together with the dual aims of youth sentencing.
(7)
If the court considers that the offence or offence(s) is (are) so serious as to pass the custody threshold, the court must consider whether a YRO with ISS can be imposed instead. If it cannot, then the court must explain why."
20
In our judgment, the judge in the present case followed the approach in
ZA.
Her sentencing remarks show that she did not sentence the applicants as mini-adults but had in mind the principles that must be adopted under the Overarching Guideline. Her sentencing remarks are structured and demonstrate that she considered each case before her on an individual basis, albeit that there were certain factors that were relevant to all the cases, such as the seriousness of the offence. We find no material error in her approach.
21
The judge did not expressly refer to paragraphs 6.44 and 6.45 of the Overarching Guideline. She was not required slavishly to cite large passages from the guideline, but to indicate that she had considered and applied its substance. In our judgment, the judge's sentencing remarks read as a whole satisfy us that she did so.
22
The judge did not expressly say why she was rejecting a YRO with ISS in favour of detention. However, the judge considered the Pre-Sentence Reports for each applicant which made clear that there was a significant risk of serious harm in the future. It is plain from her sentencing remarks, read fairly and as a whole, that she regarded the offending as so serious that only a sentence of detention for each applicant was warranted. Neither of the applicants can be in any realistic doubt as to why she did not impose any form of community sentence, even a stringent one.
23
By their pleas to the offence which they each entered on a “full facts” basis, the applicants have accepted that they conspired to cause very serious violence. We have seen the images of the machetes found by the police, as well as other vivid material that was before the judge. We agree with her that this was a very serious incident, putting at risk the life of a 15-year-old boy in the context of wider gang violence in the area. Age and good character do not in these circumstances mean that a YRO with ISS ought to have been imposed.
24
In our judgment, the judge was entitled to impose a sentence on each applicant of immediate detention for the length that each received. It is not arguable that the sentence of either of the applicants was manifestly excessive or wrong in principle. We refuse leave to appeal in both cases.
_______________ | ```yaml
citation: '[2023] EWCA Crim 1680'
date: '2023-12-19'
judges:
- LORD JUSTICE WILLIAM DAVIS
- MRS JUSTICE FARBEY
- HER HONOUR JUDGE MORELAND
``` |
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 323
Case No: (1)2012/02519;(2)2012/05883;(3)2012/03179
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM (1) BRADFORD CROWN COURT
(2) CHELMSFORD CROWN COURT
(3) PETERBOROUGH CROWN COURT SITTING AT HUNTINGDON
(1)His Honour Judge Durham Hall QC
(2) Mr Recorder Dodd QC
(3) Mr Recorder Clark
(1) T2011/7601; (2) T2012/7110; (3) T2011/7211
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
26/03/2013
Before :
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE SIMON
and
MR JUSTICE IRWIN
- - - - - - - - - - - - - - - - - - - - -
Between :
(1)
Robert Perkins
(2)
Billy Bennett
(3)
Ronnie Hall
Appellant
- and -
R
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
(1)
Stephen Wood
for the
Applicant Perkins
(2)
P Panayi
for the
Applicant Bennett
(3)
Roy James (Solicitor Advocate)
for the
Applicant Hall
Tom Little
for the
Crown
Hearing date: 12
th
February 2013
- - - - - - - - - - - - - - - - - - - - -
Judgment
LORD JUDGE LORD CHIEF JUSTICE OF ENGLAND AND WALES:
1.
These cases, which were heard together, raised a number of different questions about victim personal statements and, in cases of homicide, family impact statements, both now well-established parts of criminal process. They are:
a)
An appeal against sentence by Robert Perkins who, following his guilty plea and variation of sentence made under s.155 of the Power of Criminal Courts (Sentencing) Act 2000, was made subject to a total sentence of 12 years imprisonment by His Honour Judge Durham Hall QC in the Crown Court at Bradford.
b)
An appeal against sentence by Billy Bennett who, following his guilty plea, was sentenced to a total of 9 years imprisonment by Mr Recorder Dodd QC at Chelmsford Crown Court on 17 September 2012.
c)
An appeal against conviction for aggravated burglary by Ronnie Hall at the Crown Court at Peterborough sitting at Huntingdon before Mr Recorder Clarke and a jury on 16 March 2012. On 27 April he was sentenced to 11 years imprisonment.
Victim Personal Statements/Family Impact Statements
2.
Victim Personal Statements that is, statements by the victims of a crime or crimes, or in cases involving death, Family Impact Statements, by surviving members of the family of the deceased, were formally introduced into the criminal justice system of England and Wales in 2001. In this judgment they will be referred to as the statement or statements. They were included in the Practice Direction (Criminal Proceedings: Consolidation)
[2002] 1 WLR 2872
and they are now found in Part III 28 of the Current Consolidated Criminal Practice Direction
[2009] 1 WLR 1396
. Their purpose is to allow victims a more structured opportunity to explain how they have been affected by the crime or crimes of which they were victims. They provide a practical way of ensuring that the sentencing court will, consider, in accordance with s.143 of the Criminal Justice Act 2003, “any harm which the offence caused”, reflecting on the evidence of the victim about the specific and personal impact of the offence or offences, or in the cases of homicide, on the family of the deceased. The statements may, albeit incidentally to the purposes of the sentencing court, identify a need for additional or specific support or protection for the victims of crime, to be considered at the end of the sentencing process. At the same time, the process does not create or constitute an opportunity for the victim of crime to suggest or discuss the type or level of sentence to be imposed. The distinction is important, and is sometimes misunderstood. It is, however, well exemplified in
Nunn
[1996] 2 Cr. App. R(S) 136.
3.
This was a sensitive case in which the defendant had caused the death of a close friend after driving dangerously, having consumed alcohol. After sentence in the Crown Court, this court was supplied with statements from the mother and one of the sisters of the deceased who were seeking, indeed urging, clemency on the court, not merely because the sentence passed on Nunn was having a detrimental effect on him, but because it was adversely affecting their ability to come to terms with the loss and grief which they had suffered. As the mother made clear in her statement, her husband, the father of the deceased and his other sister, did not agree with them. In short, victims of precisely the same crime, with the same dreadful consequent emotional damage, took diametrically opposed views about the sentence.
4.
The court observed:
“… if the victim feels utterly merciful towards the criminal, and some do, the crime has still been committed and must be punished as it deserves. If the victim is obsessed with vengeance, which can in reality only be assuaged by a very long sentence, as also happens, the punishment cannot be made longer by the court than would otherwise be appropriate. Otherwise cases with identical features would be dealt with in widely differing ways, leading to improper and unfair disparity, … If carried to its logical conclusion, the process would end up by imposing unfair pressures on the victims of crime or the survivors of crime resulting in death, to play a part in the sentencing process which many of them would find painful and distasteful. It is very far removed from the court being kept properly informed of the anguish and suffering inflicted on the victims by the crime”.
5.
These principles are encapsulated in the current Practice Direction. This reads:
“III.28 When a police officer takes a statement from a victim, the victim will be told about the scheme and given the chance to make a Victim Personal Statement. The decision about whether or not to make a Victim Personal Statement is entirely a matter for the victim. A Victim Personal Statement may be made or updated at any time prior to the disposal of the case. It will not normally be appropriate for a Victim Personal Statement to be made after the disposal of the case; there may be rare occasions between sentence and appeal when an update to the Victim Personal Statement may be necessary, for example, when the victim was injured and the final prognosis was not available at the date of sentence. If the court is presented with a Victim Personal Statement, the following approach should be adopted:
(a) The Victim Personal Statement and any evidence in support should be considered and taken into account by the court prior to passing sentence.
(b) Evidence of the effects of an offence on the victim contained in the Victim Personal Statement or other statement, must be in proper form, that is a witness statement made under s.9 of the Criminal Justice Act 1967 or an expert’s report; and served upon the defendant’s solicitor or the defendant if he is not represented, prior to sentence. Except where inferences can properly be drawn from the nature of or circumstances surrounding the offence, a sentencer must not make assumptions unsupported by evidence about the effects of an offence on the victim.
(c) The court must pass what it judges to be the appropriate sentence having regard to the circumstances of the offence and of the offender, taking into account, so far as the court considers it appropriate, the impact on the victim. The opinions of the victim or the victim’s close relatives as to what the sentence should be are therefore not relevant, unlike the consequences of the offence on them. Victims should be advised of this. If, despite the advice, opinions as to sentence are included in the statement, the court should pay no attention to them.
(d) The court should consider whether it is desirable in its sentencing remarks to refer to the evidence provided on behalf of the victim. …”
6.
We shall return to a number of features of the Practice Direction, after we have noted three further current sources of information. In 2006 a pilot scheme known as the Victims’ Advocate Pilot Scheme allowed the families of victims in homicide cases to make a Family Impact Statement in open court. The statement was directed to the effect of the crime on them. The pilot scheme was run at the Central Criminal Court and four other major courts. On 3 May 2006 an appropriate protocol was issued. Dealing with it broadly, the principles which are now contained in the current Practice Direction were applied. In particular, whether presented orally or in writing, the statement was formal evidence, and if the family member chose to give evidence orally, the process would be the same as if he or she were giving evidence in chief, and liable to be cross-examined on the defendant’s behalf, and the defendant was to be notified in good time of the contents of any such evidence, so as to enable appropriate forensic decisions to be made.
7.
The relevant Guide for Police Officers, Investigators and Criminal Practitioners is entirely consistent with the Practice Direction. It records:
“The VPS is the victim’s chance to:
•
Explain in their own words how the crime has affected them, either physically, emotionally, financially or in any other way
•
Express legitimate concerns, such as feeling vulnerable, fearful, intimidated or worried about the alleged offender being granted bail
•
Say if they intend to seek compensation …
•
Request referral to Victim Support or to other agencies who might help them.
The VPS must not include the victim’s offender about how the offender should be punished. That is for the magistrate or judge to decide.”
The Guide continues by indicating that the victim can make a statement at the same time as they make their main witness statement, at a later date, or both, and importantly adds:
“Remember, some victims may not want to make a VPS about how the crime has affected them. This is perfectly acceptable and you should not draw any conclusions if they don’t.”
8.
The recent Report for the Commissioner for Victims and Witnesses in England and Wales (Robert & Manikis, Oxford, 2011) concluded that victims were generally favourable to the scheme. Although only a minority of victims submit a statement, of those who do, most appeared to benefit from the experience. Victims of serious crimes of violence were more likely to submit statements, and those who did appeared more satisfied with the sentencing process than those who did not.
9.
Without suggesting any amendments or additions to the current Practice Direction, a number of its aspects need emphasis.
a)
The decision whether to make a statement must be made by the victims personally. They must be provided with information which makes it clear that they are entitled to make a statement, but, as the Guide to Police Officers and Investigators underlines, no pressure, either way, should be brought to bear on their decision. They are entitled to make statements, and they are equally entitled not to do so. They should be informed of their right, and allowed to exercise it as they wish: in particular the perception should not be allowed to emerge that if they chose not to do so the court may misunderstand or minimise the harm caused by the crime.
b)
When the decision whether or not to make a statement is being made, it should be clearly understood that the victim’s opinion about the type and level of sentence should not be included. Again that is entirely consistent with the Guide to Police Officers and Investigators. If necessary, victims must be assisted to appreciate that the court is required to pass the appropriate sentence, in accordance with decisions of this court, and definitive guidelines issued by the Sentencing Guidelines Council or the Sentencing Council, and make a judgment based on all the facts of the case, including both the aggravating and the mitigating features.
c)
The statement constitutes evidence. That is the basis on which it is admitted. It must therefore be treated as evidence. It must be in a formal witness statement, served on the defendant’s legal advisors in time for the defendant’s instructions to be taken, and for any objection to the use of the statement, or part of it, if necessary, to be prepared. In
Perkins
, the statement was handed over far too late in the process, and indeed we are concerned that some of the submissions from counsel in these cases suggest that a somewhat haphazard and slovenly approach to the time when the statement is served may have developed, at any rate in some parts of the country.
d)
Just because the statement is intended to inform the sentencing court of specific features of the consequences of the offence on the victim, responsibility for presenting admissible evidence remains with the prosecution.
e)
It follows that the statement may be challenged, in cross-examination, and it may give rise to disclosure obligations, and indeed as the case of
Hall
underlines, may be used, after conviction, to deploy an argument that the credibility of the victim is open to question.
10.
Properly formulated statements provide real assistance for the sentencer. An example of how seriously they are taken by the court is that they are one of the few documents which are always specially flagged in the papers prepared for the judges of this court, considering an appeal against sentence or an application by the Attorney General to refer an unduly lenient sentence to the court.
11.
Experience has shown that in the overwhelming majority of cases, after a statement has been prepared, it is put before the sentencing court in the usual way, and then summarised, or sometimes in whole or in part read aloud in open court by the prosecuting advocate. The judge will always have read the statement himself, and may sometimes choose not only to indicate that it has been taken into account, but to quote any relevant passages in court. Of course, in the selection of any passages for quotation or indeed summary, the advocate and indeed the judge must be very sensitive to the position of the victim, and on occasions the need to respect the victim’s privacy. The application of these principles means that it will be very rare for the victim to read out his or her statement, but the process is sufficiently flexible for the judge to permit it in an appropriate case.
12.
It will seldom be appropriate for a statement to be introduced at a sentencing appeal if it was not before the sentencing court. Obviously there will be occasion when an update to the statement is appropriate. If so the formalities must continue to be observed. In this court the purpose of the statement is unchanged. It keeps the court informed about the continuing impact and further developments relevant to the impact of the offence. It cannot be used for the purposes of arguing that the sentence was excessive or lenient. (See, for example,
Perks
[2001] Cr. App. R(S) 19 and
AG’s Reference No. 59 of 2006
[2006] EWCA Crim. 2096
.) Just because of the need for flexibility, there will be occasions when, as in the Crown Court, the court will permit the victim of the crime to give evidence in the form of reading a properly prepared and timeously served further statement. This step was permitted exceptionally in the appeal against sentence by
Bennett
because we were satisfied from our pre-reading of the statement that this was essential to our understanding of the impact of the crime on the victim.
13.
In the context of appeals, just as the sentencing decision cannot be influenced by the views of the victim about the level and range of sentence, perhaps we should note that the views of the victim cannot provide a basis for this court to conclude that the appeal is or is not well founded. If, applying ordinary principles, the sentence appears to this court to be excessive or wrong in principle, it must be reduced, irrespective of the views of the victim.
14.
The guidance given by this court to the victims of crime and their families in the context of appeals states that it “would be extremely rare for someone who has been the victim of an offence (or their family) to be asked to speak or give evidence to the court”. That is an inevitable consequence of the jurisdiction exercised in this court, which in the context of appeals against sentence, does not constitute a re-hearing. There may, indeed, be practical difficulties, not least that the prosecution is often not represented on an appeal against sentence, and an appellant may waive his rights to attend. Nevertheless there will, as the guidance implies, be a small handful of cases where the court decides that it should allow a victim to read or give evidence along the lines of a properly drafted and served witness statement, as in
Bennett,
following a very serious crime.
15.
With these considerations in mind we shall address these appeals.
Robert Perkins
16.
This application for leave to appeal against sentence has been referred to the full court by the Registrar of Criminal Appeals. For technical reasons we grant leave. Robert Perkins is 66 years old, and the offences to which he pleaded guilty on 17 February 2012 in the Crown Court at Bradford were historic sexual offences committed against three young girls, twins with a younger sister, between 1986 and 1991. The unsatisfactory course of these proceedings of itself requires leave to be granted.
17.
On 27 March 2012 before His Honour Judge Durham Hall QC, the appellant was sentenced, according to the transcript of the sentencing remarks, to a total of 17 years imprisonment. The sentences were not accurately recorded by the Crown Court, where the total sentence was noted at 16 years imprisonment. Counts 1-8 involved the first of the twins KD, counts 10-17 involved the second twin SD, and counts 18-25 involved the third sister, RD. In relation to counts 1-3 and 5-8 the total sentence was 5 years imprisonment. In relation to counts 10-11, 15 and 17, the total sentence was 7 years imprisonment, to run consecutively to the sentences imposed in relation to the offences against KD. In relation to counts 18-25 the total sentence was 5 years imprisonment, again to run consecutively to the sentences for the offences of which KD and SD were the victims. Counts 4-5, indecent assault on KD, and counts 9 and 12-14 indecent assaults on SD, and count 16, rape of SD, were ordered to remain on the file on the usual terms.
18.
A sexual offences prevention order was made, for life, pursuant to s.104 of the 2003 Sexual Offences Act. The order prohibited the appellant from approaching, seeking to approach or communicating by whatever means, directly or indirectly any of the three victims. It is agreed by counsel for the Crown and the appellant that this order was neither appropriate nor necessary. We agree. Accordingly it will be quashed. Notification orders and orders under the Safeguarding of Vulnerable Groups Act 2006 were also made.
19.
On 27 April 2012 Judge Durham Hall reopened the sentence in accordance with s.155 of the Power of Criminal Courts (Sentencing) Act 2000. He varied the sentence in respect of the offences against KD and ordered that the sentences on counts 1-8 should run concurrently rather than consecutively. On the basis that the original total sentence for the offences involving this child was 4 years imprisonment, rather than the 5 years shown on the sentencing transcript, the overall total was 16 years imprisonment, this produced a total sentence of 12 years imprisonment. It is this total sentence which is now the subject of the appeal.
20.
The facts of this case are sadly familiar. These were historic sexual offences against three female siblings, which dated back to 1986 to 1991. The girls were aged between 9 and 13 when they were seriously abused by the appellant. He was a family friend of the children’s parents, and he babysat for them when the parents were out. He groomed them by giving them sweets and money, and allowing them to plait his long hair, and he would tickle them and touch them, apparently innocently, before he began to touch them indecently. The charges involving KD alleged touching of her breasts and digital penetration of her vagina. With SD there was digital penetration of the vagina, and a specific count of rape, when she was 12 years old, involving the insertion of the tip of his penis into her vagina, causing her pain and to bleed afterwards. With RD the offences involved touching her vagina with his fingers and rubbing his penis against her vagina, and one occasion when he inserted his penis into her mouth. This incident caused RD to be physically sick. It is an aggravating feature of these offences that the abuse on one child was often perpetrated in the presence of the others. The children were silenced by threats to kill them if they told their parents.
21.
In fact we know that one of the children wrote letters at the time. Just a few words from one of them is sufficient to convey some idea of what the child, as she still was, was suffering. “I don’t know what to do. I just want it to STOP or for someone to make it stop. If anyone reads this can you please do something about this”. The children were all too young to do anything themselves, and, because of the threats, they were all too frightened to tell anyone else.
22.
There is no doubting the seriousness of these offences. As a result of his threats, no complaint was made by any of the girls to their parents. They came to light some 20 years or so later, in 2009, when KD happened to see the appellant and reported what had happened to the police.
23.
The appellant was arrested. He made admissions of the offences involving KD and RD, and went on to admit the offences committed against SD. Thereafter she was interviewed by the police and gave her own account of what had happened to her. The appellant expressed remorse for his offending, telling the writer of the Pre-sentence Report, “it was wrong what I did, it was an evil act I did”. He pleaded guilty.
24.
The appellant was not a man of good character, but his last prison sentence was imposed as long ago as 1978. Now 66 years old, he is in poor health. He suffers Type II diabetes and hyper-tension. In 2008 he suffered a heart attack. His mobility is affected by arthritis. In the Pre-sentence Report he was said to represent a “low” risk of re-offending, and the Crown accepted that he had not offended for many years.
25.
Passing sentence on 27 March 2012, the judge reflected that the offences represented a campaign of “degrading abuse” of children who were groomed by the appellant, and assaulted for his own self gratification. He was a trusted member of the family, treated as an uncle. The judge was aware and attached importance to the appellant’s frankness when interviewed, and credit was to be given to him for revealing the full extent of his offending as well as sparing the victims the ordeal of giving evidence. The judge also recognised what he described as a “degree of infirmity”.
26.
The judge carefully reflected on the victim impact statements of RD and KD. Significantly, in the context of the issues which arise in these appeals, SD did not wish to provide a victim impact statement because she found the whole process far too emotional and disturbing. The two statements which are available explain why. In essence, both victims describe the dreadful impact of the years of abuse on their entire life. It is unnecessary to set out the details, but one example of the kind of impact which might otherwise be overlooked is the description by one of the victims that, because of what happened to them all, the three sisters drifted apart, each of them trying to deal with what had happened in her own way. The other feature of the statements is how, even after the offences came to light, they have been kept hidden from other members of the family. The judge was entitled to describe the damage done to the children as festering over the years, causing life long damage to them.
27.
After concluding his remarks the judge expressed himself concerned that the sentencing regime which applied to sentences imposed for offences committed under what he described as ‘the old regime’ were different to those which would obtain to crimes committed more recently.
28.
At the variation hearing on 27 April the judge explained that he was concerned that he had imposed a sentence that might leave the impression that he had not given the appellant full or sufficient credit for his plea. He had made an insufficient allowance for the totality principle. He was not however reducing the sentence to reflect the differences in the regime’s governing release from imprisonment. The total sentence should be 12 years imprisonment.
29.
The submission is that this sentence was manifestly excessive. It failed to allow sufficiently for the appellant’s immediate admissions and voluntary disclosure to the police of some of his offences, and his subsequent early pleas. Insufficient recognition was paid to the medical condition of the appellant, the age of the offences and the absence of evidence of any sexual offending in the interim. Setting these matters of mitigation against the offences committed by the appellant, even with the significant features of aggravation, a starting point of 18 years imprisonment before the guilty plea and remorseful co-operation with the police was excessive, and this resulted in an excessive sentence.
30.
Before addressing the appropriate level of sentence, there are two separate features of the process which we must consider.
31.
The first troublesome area of process is that the variation hearing took place on a day when the judge ordered the case to be heard, without formal listing, when, coincidently, both counsel in the case happened to be appearing before him in a different case. Neither of them had their original papers. The judge obtained the court file and proceeded with his decision, notwithstanding submissions that the proposed variation should not take place in the absence of the defendant, whether in court or by video link, unless he had waived his right to be present. The judge did not invite submissions from either counsel, observing that to require the defendant to travel to court would be detrimental to his health and he proceeded to order the variation.
32.
S.155 of the 2000 Act provides a valuable safety net in the sentencing process, enabling the judge to reflect on the sentencing decision and if so minded, within a statutory period, to amend it. It is however no more and no less than a further hearing in the original case. As such it should be listed so that all the interested parties, not only the defendant, but the victims, and the public and the media may be present if they wish. This variation hearing undoubtedly took place in open court, but if no one with a direct interest in the case had any idea that it was to be listed, for those most closely concerned the hearing was effectively a private hearing. That should not happen.
33.
The second is a complaint that the victim personal statement was not received by counsel for the defendant until the morning when he was due to be sentenced. Indeed this part of the process did not take place until after the case had been called on. Mr Wood on behalf of the applicant is critical of what happened in the present case, and suggests that it provides a good example of an inappropriate practice that has now developed and become wide-spread. Unless there was some breakdown in communication, late service of the statements is wholly inappropriate and, as we explained earlier in the judgment, wrong in principle. It must stop.
34.
We have reflected on Mr Wood’s careful submissions about sentence. This is a lamentable case. Three children abused, suffering life long consequences as a result, and seriously abused, with one child raped vaginally, and another raped orally, by a man who was in a position of trust, and whose threats enabled him to escape detection and condemned them to pitiful silence. Looked at as a total, this sentence was not manifestly excessive.
35.
Accordingly, save in relation to the Sexual Offences Prevention Order, the appeal will be dismissed.
Billy Bennett
36.
Billy Bennett, now aged 22, is a young man of positive good character, on 1 August 2012 in the Crown Court at Chelmsford pleaded guilty to three counts of rape, one count of kidnapping and one count of assault by penetration. The offences took place on the same date and involved the same victim. On 17 September 2012 before Mr Recorder Dodd QC for the rape offences he was sentenced to 9 years imprisonment on the rape count, for kidnapping to 4 years imprisonment, and for assault by penetration, to 6 years imprisonment, all the sentences to run concurrently. The total sentence was 9 years imprisonment, together with an order for forfeiture of a Ford Focus motor car and an appropriate order requiring indefinite compliance with the notification provisions.
37.
These offences occurred on 19 May 2012, and the victim was a young woman, 26 years old, who had enjoyed a sober night out with friends in Chelmsford town centre. She started to walk the short distance home. As she did so a car came by which, she noticed, did a U-turn and then drove back down the road, apparently driving away. In fact it turned into a side road.
38.
She carried on walking, and close to where she had seen the car apparently drive away, she saw the appellant walking directly towards her. He had his arm up and was holding something in his hand and, threatening to stab her if she failed to comply. He ordered her to “suck his dick”. She begged him not to hurt her and he told her that if she did as he said she would not be hurt. He then repeated what he said. He undid his trousers and forced her head down onto his penis and said “suck my cock”. While he did this he was holding an object in his hand, and she was terrified. He made her crouch down and forced his penis into her mouth. After a short while he told her to get up, and ordered her into his car which was parked close by.
39.
She was extremely frightened and she asked him to let her go. He ordered her, “Do as I say, I am not going to hurt you”. She repeatedly begged him not to hurt her. His response was that if she didn’t do as he said, and get into his car, he would stab her. So she entered her vehicle, which he then drove away.
40.
At that stage she believed that her life was in danger, and as the car drove away she kept apologising to the appellant saying, “I’m sorry, I’m sorry, I’m sorry”.
41.
The appellant knew exactly where he was going. He took a short direct route to the entrance of a disused hospital where he would not be interrupted. Once there, while still in the vehicle, the appellant undid his trousers and pushed her head down onto his penis. He removed his penis from her mouth and after that began forcibly to kiss her, forcing his tongue into her mouth, and then pulling or trying to pull her leggings down. Her overriding and overwhelming sense at the time was that she was going to die. He then pushed her head back onto his penis, this time for a number of minutes, and then managed to pull down her leggings.
42.
She was sat in the passenger seat. He leaned over and forcibly pushed his fingers into her vagina. It hurt a great deal. After this digital penetration, the appellant climbed over from the driver’s seat, ordered her to take her leggings off and then tried to insert his penis into her vagina. To begin with he was unable to do so. As she describes it, this appeared to make him “more wound up”. He ordered her to get herself wet, put his penis back into her mouth briefly, but long enough and with such force that she felt that she was choking. He put his fingers back into her vagina and ordered her not to try and get out of the car. Then he walked around to the passenger door while she was still inside the vehicle, he picked up a bottle of water from within the car, and poured water over the victim and himself apparently to provide some lubrication. He then raped her, telling her that she must not worry, she would not catch anything from him. After a while he ejaculated inside her.
43.
Once this incident was over, he asked her for some identification. She showed him some cards. Eventually she asked if she could go, and he said that she could. She sorted out her clothing, put her shoes on and ran away the short distance to her home. The appellant drove his vehicle away. Notwithstanding the dreadful experience, the victim took in details about the vehicle, including its make, its model and its registration number.
44.
When she reached home, she telephoned the police. Quite apart from her description of the incident, she was able to provide the police with ample material to enable them to trace the defendant to his mother’s home address by the afternoon of 20
May.
45.
The appellant was not at home on that occasion, but the police made it clear that they intended to speak to him. At 6.25 that evening he went to Brentwood Police Station, where he was arrested and interviewed. The interview involved a mixture of comment and no comment, but he was clearly apologising to the victim, saying it wasn’t right, and that he had handed himself in because he had a guilty conscience and that what he had done was wrong. He explained that he did not really know what he had been doing because he had taken drugs in the form of cocaine. The apology was repeated, and in due course he pleaded guilty.
46.
The victim was to tell the police that the appellant had been forceful, menacing and controlled, behaving as if he had “formulated a plan”. In the immediate aftermath of the offence, she was extremely concerned about the possibility that he had transmitted a sexual disease to her. On the day of the sentencing decision, that is approaching five months after the rape, appropriate tests demonstrated that there had been no such transmission.
47.
The victim impact statement read by the judge led him to observe that she had been “very badly affected” by what had happened to her and that the events would remain with her for a very long time.
48.
The judge concluded that an indeterminate sentence would not be appropriate. Counsel for the prosecution suggested that the rape offence fell within the second category identified in the Definitive Sentencing Guidelines Council, with an indicative range of six to eleven years where a person of good character was convicted after a trial. It is, however clear, that counsel was limiting this categorisation to the count of rape alone, for he added that “consideration, of course, has to be had, as regards to assault by penetration” and the count of “kidnap”.
49.
The judge addressed the incident as a whole, which he rightly described as a “horrifying experience”, noting that because the victim had been able to give the police a clear account of what had happened and the details of the appellant’s car, the appellant had surrendered to the police, admitting what he had done and apologising for his behaviour. His only explanation was that he had taken cocaine, which the judge suggested did not excuse or mitigate his behaviour. This was a sustained attack, which lasted over half an hour, involved the element of kidnap or detention, repeated threats to use a weapon, which the victim believed was a knife, and ended when he ejaculated inside her without attempting to use any form of contraceptive. The judge also believed that the decision to drive to the deserted hospital site to continue the sexual assaults suggested a “modest degree” of planning.
50.
After considering the victim impact statement, which set out in unequivocal language the impact of the offence on the victim, he passed the sentence which is the subject of the present appeal. As we have already indicated, we considered an application, supported by Mr Little on behalf of the prosecution, and without objection from Mr Panayi, that we should allow the victim to give evidence in accordance with the properly prepared statement. We did so, and we heard her evidence. The grave nature of this crime and its continuing severe impact on this particular young woman is clear.
51.
In a well structured submission Mr Panayi submitted that the sentence was manifestly excessive. The appropriate category within the current guideline was the middle category, with a range of 6-11 years custody after a trial, and that although there were a number of serious features of this crime, care should be taken not to double count, in particular the element of abduction or detention which was already included within the aggravated features of the offence. He suggested that the only additional aggravating features, legitimately to be considered in the sentencing decision, were the fact that the attack lasted some half an hour, and was therefore sustained, that the use of a weapon was threatened, and that the appellant ejaculated within the victim without using a condom. These were not sufficient to take the offences into the higher category. They were rightly placed in the middle category, even if higher up that range. As against these features, he underlined the appellant’s youth and positive good character, and his obvious remorse and positive assistance to the investigation, which ultimately culminated in his guilty plea at the earliest possible moment.
52.
Our decision in this appeal has not been altogether straightforward. In some ways the discussion focussing on the question of the category of the offence within the appropriate guideline has been, as it sometimes is, something of a distraction. Whether one treats the offence as a middle category offence with serious aggravating features, or treats the serious aggravating features, taken with the broad facts of the offence, as justifying categorisation at the more serious level, is in some ways academic. This offence occurred when this young woman was close to her home (a feature which has had a particular impact on her) and she was orally raped in the street, then driven away and orally raped again, and then vaginally penetrated, with force, by fingers and then penis in the car until the appellant ejaculated. This was indeed a “quite horrifying” experience, and the impact on the victim is severe and she will be emotionally scarred for the rest of her life. Allowing for the genuine mitigation, our conclusion is that the sentence was at the high end of the appropriate range, but not excessive so that this court should interfere with it.
53.
Accordingly the appeal will be dismissed.
Ronnie Hall
54.
Keith Lauder lived at 157 Hinchcliffe, Orton, Peterborough. Megan Hall, the appellant’s daughter, lived next door. At about 8.30pm on 10 July 2011 Mr Lauder was disturbed by his dog barking. He went to investigate and was confronted by a man who had entered through the rear kitchen door. The man pointed a rifle at Mr Lauder’s face and said “take your top off, you know why, you know what I’m on about”. Mr Lauder backed away into his front room, but he was pursued by the man, who struck him in the jaw two or three times with the butt of the rifle, causing serious facial injuries. He then managed to escape to the back of his house, making his way to a nearby shopping centre and alerting the police. In the meantime the intruder caused considerable damage inside the house.
55.
Mr Lauder made a witness statement on 20 July 2011. In the course of the witness statement he described the individual who had attacked him:
“… (I) … was immediately confronted by a male who I did not recognised. He was about 5’7” tall and of stocky build with black hair, he was aged in his mid 40’s. I noticed the male was carrying a single barrelled rifle … I was taken aback by this and very shocked … the man then shouted at me in a deep Scottish accent, saying … I was confused by this. I was asking what this was about, he just said, “you know what it’s about”. I’m not 100% sure what happened next but I recall getting away from the male …”
56.
A sample of the appellant’s blood was found at Mr Lauder’s home, where significant damage had been caused. The appellant was arrested on 27 October 2011. At the request of the defence, an identification procedure took place on 25 January 2012, and Mr Lauder did not identify the appellant as his attacker.
57.
Before the trial, the appellant served a defence case statement, part of which reads:
“The defendant states that the victim of this offence, who is unable to identify the offender, knows the defendant by his first name of Ronnie and is aware that the defendant is the father of his neighbour, Megan Hall. Had the defendant been responsible for the offence, he would have been identified by the victim.
… The defendant had visited the victim at his home address on a number of occasions. During one of these visits the defendant and others were “messing around” when he accidentally smashed a picture frame and cutting his finger. He recalled the frame being on a wall and the picture itself was of a young girl”.
58.
In response, a further statement dated 19 January 2012 was taken from Mr Lauder. Among other matters, Mr Lauder confirmed that he had met “the father of my old next door neighbour”, but once only, that he had never been visited at home by him and did not really know him. He added that he felt he would not be able to identify Megan’s father from the time he met him, which was more than a year before.
59.
The Crown relied on powerful evidence to establish that the appellant was the burglar. First, his blood which was found on a sideboard with broken glass on it. The Crown also relied on the general presentation of Mr Lauder’s home, which was normally kept in a tidy fashion, to show that the blood could not have been left over from an earlier incident. There was an account of a witness who described a tall man with bloodied knuckles was coming out of the victim’s house via the back garden, carrying something like a shovel or a spade, and leaving the scene in a dark coloured Subaru vehicle, with a registration number, part of which was said to be AE52 or 53. The appellant owned a black Subaru vehicle, registration number AE518WK. The Crown relied on Mr Lauder’s evidence that his attacker had a Scottish accent, as does the appellant and on the fact that the appellant’s daughter lived next door to the scene. In addition the appellant’s previous convictions were admitted, and they were said to establish a propensity to commit violent offences of this kind. Finally the Crown drew attention to the appellant’s failure to mention in his police evidence important facts which subsequently emerged to underline that his evidence at trial was not credible.
60.
At trial Mr Lauder gave evidence. In chief, he was asked if he was able to look at the face of the person who was attacking him, and he replied, “not straight away, no”. After recounting what had happened and what had been said, and describing the speaker’s Scottish accent, he was asked whether at that stage he realised that this was someone he had met before. His answer was:
“well, I was a bit confused with what was happening, but – and then it came back to me that it is – I’d met him once before”.
Counsel restated the question, asking whether he had recognised the man at the scene. The answer was “no”, at the time he agreed the man was “a stranger”. No doubt with the defence case statement in mind counsel asked Mr Lauder whether any pictures had been smashed at his house, and whether he had ever met Megan’s father. He answered that he had met Megan’s father on one previous occasion at Megan’s house, a couple of months before the burglary. He had only met the father briefly, the father had never been into his house, and, none of the broken glass shown in the photographs was present at the scene before the burglary. He confirmed that he had not recognised the man who assaulted him at the time, having only met him on one brief previous occasion.
61.
In cross-examination it was suggested to Mr Lauder that he knew Ronnie Hall well as the father of his neighbour and that the appellant had visited his house on a number of occasions. Mr Lauder denied it. It was suggested to him that he clearly knew Megan’s father by sight, to which he replied:
“When I saw him out on the street I’d recognise him but he’s never been to my house”.
It was then suggested that this must mean that the person who carried out the attack was not Megan’s father. Mr Lauder responded that in the course of such an attack “you don’t instantly know what is happening”. He went on to say that he would not be able to identify Megan’s father, “but if I saw him walking down the road, I’d be able to point him out to you”.
62.
Thereafter the evidence was concluded, and after a summing up which has not been criticised in any way, the appellant was convicted.
63.
Shortly after the conviction, on 23 March 2012, Mr Lauder made a victim impact statement. After describing his injuries and ill treatment, he said:
“I don’t really know my attacker. I’d only met him once. I did know that he was the father of the girl next door. I had no problem with him or his daughter”.
64.
As we have emphasised earlier in the judgment, a victim personal statement must be in proper evidential form. That applied here. Of course, a truly inconsistent statement in such a document, whether made before or after a trial, may be introduced into evidence at the trial (or indeed considered as possible fresh evidence after conviction), if it has any relevance to the issues before the jury, or, if the jury has convicted the defendant, to the safety of the conviction. In circumstances, it cannot be simply brushed aside.
65.
Mr James, on behalf of the appellant, submits that this passage in the victim personal statement renders the conviction unsafe. He relies on the phrase “I did know that he was the father of the girl next door” to demonstrate that in his evidence at trial Mr Lauder was lying about the issue with which he had been pressed. This, he said, undermines Mr Lauder’s credibility. This credibility was relevant not merely to his own evidence generally, but to the strength of the case overall, and indeed even to the question of the admissibility of the appellant’s previous convictions.
66.
In response Mr Little for the Crown suggested that the issue of Mr Lauder’s previous meeting with the appellant was fully before the jury. At that stage the defence had available to them Mr Lauder’s two witness statements, and the content of the victim personal statement does not in reality take these matters any further forward. In addition, Mr Little emphasises the context of the victim impact statement, which was made exactly a week after the jury had convicted the father of the girl next door. Properly understood in context, the victim’s personal statement is not and could not reasonably be thought to be a lie. In any event the combination of the evidence in the case means that the conviction is safe.
67.
We agree. The issue as to whether Mr Lauder knew his attacker, recognised him at the time, and for no apparent reason was concealing that fact, was fully ventilated before the jury. This victim personal statement was not inconsistent with the broad evidence Mr Lauder had given, or with the prosecution case. Properly understood, the statement does not mean “I recognised my attacker at the time”. Rather the fair reading is that the witness had met the man, who by then had been convicted of the attack, once, as the father of the girl next door and that he did not really know him. There was ample evidence to sustain this conviction. For these reasons the conviction is not unsafe and the appeal is dismissed. | ```yaml
citation: '[2013] EWCA Crim 323'
date: '2013-03-26'
judges:
- 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}
======
| No.
2008/03987/A9
Neutral Citation Number:
[2008] EWCA Crim 2304
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Wednesday 8 October 2008
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Judge
)
MR JUSTICE OWEN
and
MR JUSTICE CLARKE
____________________
ATTORNEY GENERAL'S REFERENCE Nos. 49 of 2008
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
__________________
R E G I N A
- v -
JORDAN BLAKE
__________________
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 J Rees
appeared on behalf of the Attorney General
Miss K Dempsey
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 a sentence imposed by Her Honour Judge Dangor sitting in the Crown Court at Harrow on 27 June 2008. We grant leave.
2. The offender is Jordan Blake. He was born on 5 August 1991 and is now aged 17. On 4 April 2008, when he was sixteen years and eight months old, at the first opportunity, he pleaded guilty to an offence of wounding with intent contrary to
section 18
of
the Offences against the Person Act 1861
.
3. There were two co-defendants, Tristan Dominique (aged 18) and Kane Dean (aged 16). They pleaded guilty to affray and were sentenced along with the offender. Dominique was sentenced to an eight month detention and training order; Dean to a six month detention and training order; and the offender (who was then just 17) was sentenced to a twelve month detention and training order.
4. The facts need some attention. It was 1.30am on Friday 16 November 2007 when the offender and his two friends, Dominique and Dean, went to a fast food restaurant in Finchley Road, London NW11. They ordered some food and paid for it. They were served by Mr Jabarkhil and Mr Haider. Dominique was unhappy about the quality of the chips he had bought. He demanded a refund. Mr Jabarkhil initially refused, but eventually refunded 50 pence on the advice of Mr Haider. Dominique demanded more money. That demand was refused. Dominique threw chips and a soft-drink can at Mr Jabarkhil. At this stage the offender played no part in this particular incident. The three of them were asked to leave. Mr Jabarkhil and Mr Sahar (the manager) attempted to usher the three youngsters out.
5. Mr Jabarkhil and Mr Sahar followed the three out into the street. Dominique turned on Mr Jabarkhil and started to punch him. Mr Sahar managed to drive Dominique away. With that Dean and the offender attacked Mr Jabarkhil. At some stage in the proceedings Mr Jabarkhil was punched a number of times by Dean. Much more significantly and more seriously, at the time or shortly beforehand the offender produced a kitchen knife. It had a blade of 8-10 centimetres in length. He stabbed Mr Jabarkhil a total of six times -- five times to his back near his right shoulder blade and once to the upper right side of his chest. Mr Sahar returned to Mr Jabarkhil and assisted him to get rid of Dean and the offender. Having been helped back inside the shop Mr Jabarkhil collapsed. He was seriously injured. The police and an ambulance were telephoned. A description was given via the emergency operator of the three young men who had been involved in the incident. All three were arrested nearby within a short time.
6. CCTV footage showed the offender throwing something into a bin at the corner of Finchley Road and Golders Green Road as he ran away from the scene. The kitchen knife, used to wound Mr Jabarkhil, still bore traces of his blood, when it was later recovered from the bin.
7. Mr Jabarkhil was taken to hospital. When he arrived he was found to have five stab wounds to the area of the right shoulder blade. In addition there was a single penetrating stab wound to the upper right chest, approximately three inches below and one inch to the right of the line of the right nipple. Twenty-five stitches were required to close up his wounds. The injury to the front of his right chest was serious. The knife had pierced the rib cage and penetrated down into the chest cavity. This caused internal bleeding and a collapse of the right lung. A blood transfusion was required. There were continuing concerns about significant bleeding through the chest drain that had been inserted. Mr Jabarkhil had to be transferred to University College Hospital in the afternoon of 16 November where the cardio-thoracic team took over his care. Thereafter he made a good recovery from his physical injuries. He was discharged from hospital six days later.
8. In his witness statement, made approximately four weeks after the attack Mr Jabarkhil said that he was still in severe pain and unable to sit or walk for long periods. He had not returned to work. According to his account he had suffered considerable psychological damage. He suffered from nightmares. He made a comment that he fled into this country as a refugee to save his life; yet on the night of the attack, as he saw the blood pouring through the wound to his chest, he thought that he would die.
9. The three offenders were interviewed later the same day. We need not trouble with the accounts given by the two co-accused, save that Dominique admitted that he had argued with, and thrown the chips at, Mr Jabarkhil, that he had run away when chased out of the shop, and that he had thrown a can of soft drink at the man who had chased him.
10. The offender made no comment to the questions that were put to him. As we have indicated, he pleaded guilty. A written basis of plea was submitted. This read:
"I accept that I was in the chicken shop with my two co-defendants. I was not involved in the initial argument with staff. I left the shop after everyone had gone off. I was grabbed around my neck by the victim and I accept that I stabbed him repeatedly. I do not accept that I punched him at all. After I stabbed him I ran around the corner. I am sorry for what I did. It's not like me. I regret I did what I did."
No Newton hearing was sought and none was required. The judge indicated that she would deal with the offender on that written basis of plea.
11. At the time of the offence the offender was 16 years old. He had a previous conviction from March 2006 when he was aged fourteen-and-a-half. He had pleaded guilty at the Youth Court to assault occasioning actual bodily harm and was sentenced to an eight month referral order and ordered to pay compensation.
12. A pre-sentence report was available to the judge. It contained an account of the incident given by the offender. It accurately recounted that the offender was not involved in the original argument. The offender asserted that Mr Jabarkhil had grabbed him and attempted to punch him. He cried out to his friends for help but they had not responded. He said that he felt in danger from the three adults who had been working in the food shop. He had then stabbed Mr Jabarkhil. He said that when this happened "everything happened so fast. I'm not sure what I was trying to achieve". He asserted that he had found the knife he used in the attack in a park earlier that day, but he could not explain in answer to the enquiries by the author of the report why he had kept the knife and why he had carried it with him at all. Indeed it is right to emphasise that it followed from the offender's account that he had chosen to take the knife with him when he left his home at around midnight to go and find the food.
13. Strong levels of remorse, self-loathing and insight were expressed in the interview. The report records that the offender had attempted to harm himself on three separate occasions after his arrest for this offence.
14. Although it is unnecessary to describe his home circumstances, it is right to record that the offender had experienced a very troubled upbringing. At school he was described as "resistant and sometimes disengaged but not obstructive". In September 2007 he began a National Vocational Qualification course in electrical installation. He was described by his course tutor as someone who had difficulty applying himself, but he was noted to be polite and pleasant.
15. A summary of the risk factors was made by the writer of the report. It concluded that the offender had a tendency to outbursts of anger which led to a loss of control when confronted with difficult situations. The offender was assessed as posing a high risk of harm, but with a medium risk of re-offending. It was believed that those risks could be considerably reduced by ongoing intervention and support from the Youth Offending Team.
16. We have gone through this information from the probation officer and through the offender's upbringing, background and the reports on him at the different places where he was educated because he is still a very young man.
17. The judge's sentencing remarks proceeded on the basis that the incident began because of an overreaction on Dominique's part. She then went on to identify the aggravating features of the offence committed by the offender who, she said, had appeared to panic. She said:
"This was a serious offence of wounding with intent. It was a wounding which included a weapon.... it was a weapon that was used six times and the result was that the victim lost 1.2 litres of blood, had to have a blood transfusion and his lung collapsed. You are fortunate .... that you are not looking at perhaps a murder; I mean it is really close enough to be really worrying.
You have also as an aggravating feature the fact that you have a previous conviction for assault occasioning actual bodily harm but I have taken into account the fact that no weapon was used on that occasion."
The judge then took account of the matters raised with her in mitigation on the offender's behalf. She concluded:
"I really had to start about thinking to lock you up for around two years because of the seriousness of the offence ...."
But having taken into account the mitigating features, and in particular the youth of the offender, she imposed the sentence against which the Attorney General now appeals.
18. We are satisfied that this sentence was unduly lenient and significantly so. We recognise the mitigating features identified to the judge. The offender had a difficult familial background and problems at home, although it is fair to say -- and we are grateful to them for enabling us to say -- that his parents are here today in this very difficult environment for them, standing by him. He was sixteen-and-a-half years old. The judge focused on his youth. He had pleaded guilty at the first available opportunity. He expressed remorse for what he had done. That remorse was not only recorded in the pre-sentence report but also in his own letter written to the court in which he describes how sorry he is for what he had done. He acknowledged that the apology was late –- too late -- for his victim. It is fair to say that the offence was not one which started out at his behest; nor was it premeditated. But -- and it is a very important but -- he was carrying a knife. The result was that he inflicted injuries on his victim which carried significant risk. The attack was a sustained attacked; there were six separate stab injuries. All the injuries were to the torso. The offender was part of a group. The victim was providing a service to the public. The offender has, despite all the things that are said about him to his advantage, a previous conviction for an offence of violence.
19. Unhappily this offence is typical of many. In
R v Blizard and Povey
(21 May 2008) this court observed that carrying a knife or an offensive weapon without reasonable excuse was a crime committed far too often by far too many people. "Every weapon carried on the streets, even if concealed or out of sight, or not likely or intended to be used, or unused, represented a threat to public safety and public order. That was because even if the item was carried only for bravado or some misguided sense that it would be used for possible self-defence, there might arise a moment of irritation, drunkenness, anger, perceived insult or something utterly trivial like a look, where the weapon was then produced and mayhem would follow, including offences of the greatest seriousness such as murder, manslaughter, causing grievous bodily harm and wounding".
20. The offender carried a knife -- an offensive weapon -– and, just as was forecast, when he became involved in this altercation, even assuming that he was wholly innocent before he became involved, he drew the knife he was carrying and he used it. As it happened, he used it on someone who had already been attacked by at least one of his friends and he caused that man very serious injuries.
21. There are a number of features of mitigation in this case. We recognise them and give due weight to them, as did the sentencing judge. In our judgment, however, the judge attached too much weight to those mitigating features. Let us repeat the message from this court: Those who carry knives in the street and then use them to wound and injure must expect severe punishment -- no ifs, no buts, no perhaps. We must do what we can to eradicate this dreadful knife problem.
22. The offender is young. The court does not have a free hand in the way in which it should deal with him. We have reflected on the available alternatives by way of sentence. We regard this as a grave crime for the purposes of
section 91
of the
Powers of Criminal Courts (Sentencing) Act 2000
. Notwithstanding the matters of mitigation which have been drawn to our attention, as they were to the trial judge, we have come to the conclusion that there must be a significant increase in the sentence to be served by the offender. We shall order that the sentence should be increased to reflect a custodial term of three years. | ```yaml
citation: '[2008] EWCA Crim 2304'
date: '2008-10-08'
judges:
- THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
- MR JUSTICE OWEN
- MR JUSTICE CLARKE
- 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:
201505383 C2
201600335 C3
201600191 C3
201600336 C3
Neutral Citation Number:
[2017] EWCA Crim 2061
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HHJ TOPOLSKI QC
T20157119
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BRISTOL
HHJ COTTLE
T20157226
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
19/12/2017
Before :
LADY JUSTICE HALLETT
VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
MR JUSTICE SPENCER
and
MR JUSTICE LAVENDER
- - - - - - - - - - - - - - - - - - - - -
Between :
R
Respondent
- and -
BARTOSZ REJMANSKI
- and -
R
- and -
CHARICE GASSMAN
AMBERSTASIA GASSMAN
Appellant
Respondent
Appellants
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
S Whitehouse QC
(instructed by
Crown Prosecution Service
) for the
Respondent
P J Griffiths QC and S Kivdeh
(instructed by
Sweetman, Burke & Sinker
) for the
Appellant Rejmanski
L Mably QC (
instructed by
the
Attorney General’s office)
as
Advocate to the Court
- and -
A R Malcolm QC
(instructed by
Crown Prosecution Service
) for the
Respondent
A Vaitilingam QC
(instructed by
Ross Solicitors
) for the
Appellant (Charice Gassman)
A Daymond (Solicitor Advocate)
(instructed by
Ross Solicitors
) for the
Appellant (Amberstasia Gassman)
Hearing dates: 28 November 2017
- - - - - - - - - - - - - - - - - - - - -
Judgment
The Vice President :
Introduction
1.
Rejmanski has leave to appeal against his conviction for murder and Charice Gassman seeks leave to appeal against her conviction for murder. The cases have been listed together because they raise the same issue: the extent to which a mental disorder can be relevant to an assessment of “
the circumstances of the defendant
”, when considering the partial defence of loss of control provided by s.54(1) Coroners and Justice Act 2009 (“the CAJA 2009”). They both complain that the trial judge’s directions effectively deprived them of the defence.
2.
Charice Gassman and her sister Amberstasia Gassman, her co-defendant, also apply for leave to appeal against sentence.
3.
We have had the benefit of submissions from counsel for each of the parties and from an amicus curiae, Mr Louis Mably QC, appointed by Her Majesty’s Attorney General at the court’s request. We are grateful to Her Majesty’s Attorney and to all counsel, particularly Mr Mably, for their assistance.
Background to the enactment of Sections 54 and 55 of the CAJA 2009
4.
Sections 54 and 55 of the CAJA 2009 were enacted against a background of controversy and widespread dissatisfaction with the common law partial defence of provocation as revised by section 3 of the Homicide Act 1957. The dissatisfaction was summarised by the Law Commission in two reports:
Partial Defences to Murder, Final Report
(2004) Law Com No 290 and
Murder, Manslaughter and Infanticide
(2006) Law Com No 304 (“the 2006 Report”).
5.
The components of the pre CAJA 2009 defence were that (a) the defendant lost his/her self-control as a result of something said or done, and (b) a person having ordinary powers of self-control would have reacted as s/he did.
6.
In determining the second, objective component, two strands of judicial opinion arose as to the extent to which a jury could take into account the particular characteristics of the defendant, in addition to age and sex, when considering the degree of self-control which would be exercised by the hypothetical person against whose conduct the defendant’s conduct was measured. One strand was that the objective test gave rise to a flexible standard, which attributed the defendant’s characteristics to the person having ordinary powers of control; the other strand held that there was a single objective standard, and the particular characteristics of the defendant were irrelevant. This led to conflicting case law.
7.
In
R v Smith (Morgan)
[2001] 1 AC (
“Morgan
Smith”
), a majority of the House of Lords held that the defendant’s particular characteristics could be taken into account, and that the question for the jury was: what could reasonably be expected of a person with the defendant’s characteristics, including characteristics which affected his general ability to control himself? On this view, the objective standard was flexible, and not constant.
8.
The minority, however, took the opposite view. They held that the objective component of the defence gave rise to a single standard, which did not vary depending on personal characteristics. Particular characteristics which affected the defendant’s general ability to control himself, such as a short temper, a mental disorder or intoxication, should not be attributed to the reasonable man. They could be taken into account, however, to the extent that they were relevant to an assessment of the gravity of the provocation (an approach that was consistent with the decision in
DPP v Camplin
[1978] AC 705
). The minority also observed that where a person killed because of a mental disorder affecting his general capacity for self-control, the mitigation of the offence of murder was found in the defence of diminished responsibility.
9.
In
Attorney General for Jersey v Holley
[2005] UKPC 23
,
[2005] 2 AC 580
, a Board of nine members of the Privy Council was specially convened to consider whether
Morgan Smith
was correctly decided. Lord Nicholls said that
Morgan Smith
was in “direct conflict” with the decision of the Privy Council in
Luc Thiet Thuan v The Queen
[1997] AC 131
and the reasoning of the majority in
Morgan Smith
was “not easy to reconcile with the reasoning of the House of Lords in
R v Camplin
[1978] AC 705
or
R v Morhall
[1996] AC 90”. The Board held, by a majority, that the position in English law was as set out by the minority in
Morgan Smith
. The Board declared that the reasonable person test gave rise to one standard that did not vary from defendant to defendant. Personal characteristics could be taken into account to the extent that they were relevant to an assessment of the gravity of the provocation, but were not relevant if and insofar as they reduced the defendant’s capacity to exercise self-control.
10.
In making a series of recommendations for reform the Law Commission expressed a clear preference for the approach of the Privy Council in
Holley
, of the minority in
Morgan Smith
and of the House of Lords in
Camplin
. The Commission recommended that that approach should be given statutory effect.
11.
The Government did not adopt all the Law Commission’s recommendations as to the partial defences to murder in enacting the CAJA 2009, as was noted in
R v Clinton
[2012] EWCA Crim 2
. However, in respect of the reasonable person test with which we are concerned, it expressly accepted the recommendation of the Law Commission and the wording of subsections (1)(c) and (3) of section 54 of the CAJA 2009 is very similar to the formulation proposed in the 2006 Report.
The statutory framework
12.
Chapter 1 of the CAJA 2009 provides for two partial defences to murder, diminished responsibility and loss of control, and it is important to read them together. In relation to diminished responsibility, section 52 amends section 2 of the Homicide Act 1957, substituting a new statutory test to this effect:
“(1) A person (“D”) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which—
(a) arose from a recognised medical condition,
(b) substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and
(c) provides an explanation for D's acts and omissions in doing or being a party to the killing.
(1A) Those things are—
(a) to understand the nature of D's conduct;
(b) to form a rational judgment;
(c) to exercise self-control.
(1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides an explanation for D's conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct.”
13.
In relation to loss of control, section 56 abolishes the common law defence of provocation, and replaces it with the new partial defence, set out in sections 54 and 55. Section 54 provides:
(1) Where a person (“D”) kills or is a party to the killing of another (“V”), D is not to be convicted of murder if—
(a) D's acts and omissions in doing or being a party to the killing resulted from D's loss of self-control,
(b) the loss of self-control had a qualifying trigger, and
(c) a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.
(2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden.
(3) In subsection (1)(c) the reference to “the circumstances of D” is a reference to all of D's circumstances other than those whose only relevance to D's conduct is that they bear on D's general capacity for tolerance or self-restraint.
(4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge.
(5) On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence under subsection (1), the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.
(6) For the purposes of subsection (5), sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply.
(7) A person who, but for this section, would be liable to be convicted of murder is liable instead to be convicted of manslaughter.
14.
Section 55 defines “qualifying trigger” for the purposes of section 54:
(2) A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies.
(3) This subsection applies if D's loss of self-control was attributable to D's fear of serious violence from V against D or another identified person.
(4) This subsection applies if D's loss of self-control was attributable to a thing or things done or said (or both) which—
(a) constituted circumstances of an extremely grave character, and
(b) caused D to have a justifiable sense of being seriously wronged.
(5) This subsection applies if D's loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4).
(6) In determining whether a loss of self-control had a qualifying trigger—
(a) D's fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence;
(b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence;
(c) the fact that a thing done or said constituted sexual infidelity is to be disregarded.
15.
The new loss of control defence therefore consists of three components:
(i)
D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control,
(ii)
the loss of self-control had a qualifying trigger, and
(iii)
a person of D’s sex and age, with a normal degree of tolerance and self-restraint, and
in the circumstances of D
, might have reacted in the same or a similar way to D.
16.
The focus of the argument before us has been on the effect of section 54(3), which provides that “
in the circumstances of D”
is a reference to all of D’s circumstances,
“other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance or self-restraint”
.
17.
Academic commentators such as Professor Ormerod (in Smith and Hogan’s Criminal Law, 14
th
edition) have suggested that the effect of section 54(3) may be different from the tests set out in
Camplin
and
Holley
, in that it is less restrictive and more generous to the defendant. Whereas in
Holley
the Board
excluded
all characteristics or circumstances, unless they were relevant to the gravity of the provocation, section 54(3)
includes
all circumstances, unless their
only
relevance
is that they bear on the defendant’s general capacity for tolerance or self-restraint. On this reading of section 54(3), it is no longer necessary to demonstrate a connection between the defendant’s particular circumstance and the gravity of the provocation; all that must be demonstrated is some relevance to the defendant’s conduct over and above the fact that the circumstance bears on the defendant’s general capacity for tolerance and self-restraint.
18.
Three decisions of this Court have been put before us in which the relevance of mental disorder to “
the
circumstances of the defendant
” in section 54(1)(c) has been considered.
19.
In
R v Mcgrory
[2013] EWCA Crim 2336
, the Court held that the trial judge had been correct to direct the jury that evidence from a medical expert that the defendant’s depression meant that she had a “reduced ability to deal with taunting and to cope with those sorts of pressures compared to someone not suffering from depression”, was excluded from their consideration by section 54(3).
20.
In
R v Wilcocks
[2016] EWCA Crim 2043
,
[2017] 1 CrAppR 23
, the Court considered the case of an Appellant with a personality disorder which affected his ability to form a rational judgment. It was argued on his behalf that this was one of the “circumstances” which was not excluded by section 54(3). The trial judge, Holroyde J, (as he was then) had given the following direction, which distinguished between a matter affecting general capacity, and a matter affecting the gravity of the qualifying trigger:
“If and in so far as you conclude a personality disorder reduced his general capacity for tolerance or self-restraint, that would not be a relevant circumstance when you are considering the defence of loss of control. But it is important to emphasise that this exclusion only relates to any feature of a personality disorder which reduced his general capacity for tolerance or self-restraint. Let me give you an illustration. If you thought that CW suffered from a personality disorder which made him unusually likely to become angry and aggressive at the slightest provocation, that would of course be relevant to diminished responsibility but it could not assist him in relation to loss of control. But if you thought that a personality disorder had caused him to attempt suicide, then you would be entitled to take into account as one of his circumstances the effect on him of being taunted that he should have killed himself.”
21.
It should be noted that Holroyde J allowed the jury to consider the disorder in relation to the gravity of the trigger, but he excluded it from their consideration if and insofar as it related to the defendant’s general capacity. This Court held that the direction accorded with section 54(3). Despite the fact that it was common ground before us that Holroyde J’s directions were correct in law, Mr Griffiths QC attempted to argue a contrary position. Since section 54(3) excluded evidence whose
only
relevance was to general capacity, it was his contention that if the disorder was relevant to two or more issues, say general capacity and the gravity of the trigger, and was admitted into evidence, it could be used in relation to both issues.
22.
In
R v Meanza
[2017] EWCA Crim 445
, the Appellant suffered from paranoid schizophrenia and anti social personality disorder. The court rejected an argument that the partial defence of loss of control should have been left to the jury. The court considered there were two insurmountable obstacles faced by the Appellant. First, the Appellant could have no “justifiable sense of being seriously wronged”. Second, the Appellant’s paranoid schizophrenia and anti social personality disorder were “excluded from account” in considering his circumstances under section 54(1)(c), as was conceded by his counsel.
Conclusions on the effect of sections 54 and 55
23.
First, we have considered whether it is necessary to analyse further the background to the enactment of sections 54 and 55. In our view, it is not. The provisions themselves and Parliament’s intent are sufficiently clear in this regard and no resort to additional material such as Hansard is necessary. Furthermore, our conclusions accord, for the most part, with the final submissions of all counsel.
24.
Second, the three components of loss of control are distinct and require separate consideration. We agree with Ms Whitehouse QC and Mr Mably QC that the potential relevance of a mental disorder to each of the components is fact specific. It depends on the nature of the defendant’s disorder, the effect it has on the defendant and the facts of the case.
25.
Third, the wording of s. 54(1)(c) is clear: in assessing the third component, the defendant is to be judged against the standard of a person with a normal degree, and not an abnormal degree, of tolerance and self-restraint. If, and in so far as, a personality disorder reduced the defendant’s general capacity for tolerance or self-restraint, that would not be a relevant consideration. Moreover, it would not be a relevant consideration even if the personality disorder was one of the “circumstances” of the defendant because it was relevant to the gravity of the trigger (for which, see
Wilcocks).
Expert evidence about the impact of the disorder would be irrelevant and inadmissible on the issue of whether it would have reduced the capacity for tolerance and self-restraint of the hypothetical “person of D’s sex and age, with a normal degree of tolerance and self-restraint”.
26.
Fourth, if a mental disorder has a relevance to the defendant’s conduct other than a bearing on his general capacity for tolerance or self-restraint, it is not excluded by subsection (3), and the jury will be entitled to take it into account as one of the defendant’s circumstances under s.54(1)(c). However, it is necessary to identify with some care how the mental disorder is said to be relevant as one of the defendant’s circumstances. It must not be relied upon to undermine the principle that the conduct of the defendant is to be judged against “normal” standards, rather than the abnormal standard of an individual defendant. It follows that we reject Mr Griffiths’ argument that, if a disorder is relevant to, say, the gravity of the qualifying trigger, and evidence of the disorder is admitted in relation to the gravity of the trigger, the jury would also be entitled to take it into account in so far as it bore on the defendant’s general capacity for tolerance and self-restraint. The disorder would be a relevant circumstance of the defendant, but would not be relevant to the question of the degree of tolerance and self-restraint which would be exercised by the hypothetical person referred to in section 54(1)(c).
27.
As we have indicated, the most obvious example of when evidence of a mental disorder may be relevant to the defendant’s circumstances is the one mentioned in
Holley
and
Wilcocks
, where the disorder was relevant to the gravity of the qualifying trigger. In
Holley,
the Board accepted that in the case of a woman suffering from ‘Battered Woman’s Syndrome’ or a personality disorder, who killed her abuser, evidence of her condition may be relevant to both the loss of self control and to the gravity of the provocation for her. In
Wilcocks,
the trial judge, and this Court, accepted that, if a personality disorder had caused the defendant to attempt suicide and he had been taunted by the deceased about committing suicide, then the jury was entitled to take it into account as one of his circumstances in considering the third stage of the defence.
28.
We do not exclude the possibility of other circumstances where a disorder might be relevant to the third component, but none have been put before us. This suggests the question is of academic interest only.
29.
Finally, the exclusionary effect of subsection (3) is consistent with, and reinforced by, the availability and scope of the partial defence of diminished responsibility in section 2 of the Homicide Act 1957, as amended by section 52 of the 2009 Act. The amended section 2 applies where a mental disorder substantially impairs the ability of the defendant to exercise self-control. The two defences may be presented together as alternatives. The law does not therefore ignore a mental disorder that, through no fault of a defendant, renders him or her unable to exercise the degree of self-control of a ‘normal’ person.
30.
We shall now apply those principles to the facts of the individual cases before us.
R v Rejmanski
Prosecution case
31.
Number 30 Compton Avenue, London E6 was home to the Appellant, a Polish national, the deceased, Grzegorz Raczek, also a Polish national, and Adrian Magiel, with whom Mr Raczek shared a room.
32.
On 28 March 2015 Mr Magiel and Mr Raczek were in their room when the Appellant knocked at the door. Mr Raczek did not want to let him in because the two men disliked each other. The Appellant persisted and said that the three of them needed to talk together in the kitchen about some food that had gone missing and for which he blamed the deceased. The Appellant appeared to be a little “tipsy”. They went to the kitchen where they drank a beer and the two men seemingly resolved their differences.
33.
Later Mr Magiel returned to his room. He found the deceased lying on the floor with his face swollen. The Appellant was standing over him, seemingly trying to move his upper body. Mr Magiel asked the Appellant what had happened. The Appellant replied, “He deserved it. He didn’t get a kicking for nothing.” They moved the deceased onto the bed. The Appellant said, “Let him sleep”. He appeared to be slightly under the influence of alcohol and there was a bottle of vodka, some of the contents of which had spilled onto the floor. The room was untidy. Mr Magiel went downstairs to call the emergency services.
34.
When the paramedics and police arrived, they found the deceased lying on a bed. He had several head injuries and was unresponsive. He was declared dead at the scene. The floor was littered with empty alcohol bottles.
35.
The Appellant was still in the room, sitting on a chair, strumming a guitar and singing or chanting words to the effect of, “I’ve killed him. He’s dead. I’m not afraid.” On arrest, the Appellant stated, “I’m not afraid. I killed him.” Thereafter he made several more admissions to the police that he was responsible for killing the deceased, although later in interview he made no comment.
36.
At the police station he was examined by a doctor. The Appellant told him that he was a boxer and had previously been a soldier. He did not disclose any medical condition. He was too drunk to consent to a blood test. He had a number of injuries, in the form of bruises and grazes, mostly to his knuckles, which were consistent with punching.
37.
The Appellant’s clothing was found to be heavily stained with the deceased’s blood. The marks on the deceased’s head and shoulders and on his shirt could have been made by the Appellant’s shoes and would have required forceful contact (eg kicking or stamping).
38.
Dr. Ian Cumming, a psychiatrist, examined the Appellant. He was of the opinion that at the time of the killing the Appellant may have been suffering from some of the symptoms of Post Traumatic Stress Disorder (“PTSD”) but its presence was neither strong nor pervasive. He had heard nothing from the Appellant to indicate that he had PTSD before the killing. He noted that there was no evidence that he had sought help either in Poland or in the UK. The condition had had little effect on his life beyond some occasional binge drinking. There was a contrast between the symptoms recorded by the prison and the lack of anything similar beforehand. There was no suggestion that prior to March 2015 he was unpredictable or violent. The doctor therefore had no confidence in a diagnosis of PTSD. He could find no link between PTSD and what the Appellant did that night. It was pure speculation to suggest otherwise.
39.
Dr. Julia Heller, a psychologist, said that the Appellant had some symptoms of PTSD but did not meet the full diagnosis. The only evidence to that effect came from the Appellant and one could not rely upon self-reporting. The Appellant reported minimal alcohol use in the three months prior to the killing but heavy use in the 24 hours leading up to the incident. He said he was highly thought of at work, related well to his colleagues and had a lot of friends. His history did not indicate or disclose any evidence of the sort of disturbance, significant distress or impairment found in the lives of those with a full PTSD diagnosis. The absence of clinical depression or a generalised anxiety disorder were further indicators that a diagnosis was not made out.
40.
In summary, the prosecution case was that the Appellant had become angry with the deceased and, fuelled by drink, had lost his temper and attacked him with his fists and/or feet intending, at the very least, to cause him really serious harm.
41.
Their case in respect of PTSD and loss of control was that the Appellant’s symptoms did not meet the full criteria for a complete diagnosis and, in any event, his condition was not linked to the loss of self control. All the evidence pointed to his having been drunk and disinhibited rather than having lost self-control. In any event the things said and done by the deceased were relatively minor and would not amount to the Appellant having a justifiable sense of being seriously wronged and thus did not establish a qualifying trigger. A normal, sober man would not have reacted in the way he did.
The defence case
42.
The Appellant was of previous good character, a decorated soldier in the Polish army and a veteran of the Afghanistan war. As a result of the horrific scenes he had witnessed in Afghanistan and the battles in which he had been directly involved, he said that he suffered symptoms which he contended were correctly diagnosed (albeit only after the killing) as PTSD. For several months after his return he experienced nightmares and flashbacks. When those memories became more intense he began to drink more to control himself. He never sought professional help because it would have caused his friends in Poland to look down upon him. His ability to work was affected and he found it hard to focus and concentrate.
43.
The attack on the deceased was triggered by the deceased’s comments about the Polish army. When the Appellant tried to change the subject the deceased slapped him on the back of the head and said to him in Polish, “Pour some vodka, cat (or kitten)”, a derogatory term used to refer to fresh recruits to compare them with more established older soldiers. He asked the deceased not to talk that way and told him that he had greater knowledge because he had served in Afghanistan. The deceased flew into a rage and accused the defendant and people like him of going to Afghanistan to make money, rape women, and shoot children.
44.
Dr. Kahtan, a psychiatrist, relying solely on the Appellant’s account to him and as recorded in prison records after the killing, was of the opinion that the Appellant fulfilled the criteria for a diagnosis of PTSD, which was a recognised mental health condition. His symptoms were intrusive memories, daytime flashbacks and nightmares, together with anxiety symptoms consisting of mood change, panic and jumpiness. Further symptoms were seen in his avoidance of traumatic memories and in his depressive presentation. His alcohol abuse, typically described as self-medicating, was a way of coping with the above symptoms.
45.
He described the Appellant as a troubled man at the time of the killing. What the deceased had said was belittling and this provocation in combination with his intoxication led to the offence. The PTSD would have made the provocation worse because he was unwell and finding it hard to cope with stress. The Appellant had “lost it” when subject to relatively minor provocation from which, viewed objectively, most people would walk away.
46.
The Appellant denied being drunk but, if he was, it would have impaired his judgment and he would have been more likely to react violently to the provocation. A sober man would have found it easier to deal with the insults but the doctor could not say whether, had the Appellant been sober, the killing would not have happened. There was no history of alcohol dependency.
47.
Dr. Marc Desautels, a psychologist, used a diagnostic questionnaire as part of his examination of the Appellant. For reasons we do not understand, the questions contained indicators of how an answer might be used to lead to a diagnosis and the questionnaire was sent to him in advance. His diagnosis was entirely dependent upon what the Appellant told him in that questionnaire and in person and on a diagnosis of PTSD made after the killing by a prison doctor. Nevertheless, Dr Desautels was confident that the Appellant’s answers were accurate and the Appellant was suffering from PTSD. PTSD increased the risk of drinking problems and veterans who were diagnosed with PTSD and who misused alcohol showed an increase in violence and aggression.
48.
On the night of the killing, the conversation with the deceased would have caused the Appellant stress by triggering memories and his PTSD symptoms. The symptoms would have been exacerbated by the addition of alcohol, resulting in him becoming more disinhibited and leading to him losing control.
49.
In summary, the defence case relied on lack of intent and the two partial defences of loss of control and diminished responsibility.
50.
The defence case specifically in respect of PTSD and loss of control was that the diagnosis had been underplayed by the prosecution. It was clear that the incident was entirely out-of-character and that the Appellant had lost control. It was also clear that there was a qualifying trigger in the things said and done by the deceased. Such things were by no means trivial to the Appellant, but were extremely grave and would have left him with a justifiable sense of being seriously wronged. Given his history, his circumstances, and his experiences in the military the jury could find that he had lost self-control.
The issues for the jury
51.
The issues as left to the jury were
(i) whether the Appellant had the requisite intent;
(ii) whether the prosecution had proved that he had not lost self-control; and
(iii) whether the defence had established that his responsibility was diminished.
In respect of the defence of loss of control, the specific issues were:
(a) whether the Appellant might have lost his self-control rather than merely attacking the deceased in anger or frustration;
(b) if so, whether that loss of self-control was attributable to something said or done by the deceased which was extremely grave in the circumstances and which caused the Appellant to have a justifiable sense of being seriously wronged; and
(c) whether a person of the Appellant’s age and sex, with a normal degree of tolerance and self-restraint and in the Appellant’s circumstances (such circumstances not including any circumstances that affected his ability to keep himself under control, such as the effect of drink) might have reacted in the same or similar way.
Ground of appeal
52.
Mr Peter Griffiths QC complains that the judge failed to give the necessary directions as to the relevance of PTSD to the loss of control defence. Before summing up, the defence had suggested that the judge should direct the jury that the Appellant’s PTSD was relevant to the qualifying trigger and to his circumstances for the purposes of section 54(1)(b) and (c). Although the judge directed the jury to consider the second component of the defence in the context of “his history, his circumstances and his experience in Afghanistan”, the judge did not specifically direct the jury that the Appellant’s PTSD should be included as part of the defendant’s circumstances for the purposes of the third component of the defence. He directed the jury to consider what the reaction of a sober person with a normal degree of tolerance and self restraint placed in the same predicament as the defendant would have been. This was described as a serious error and one that renders the Appellant’s conviction unsafe.
53.
Mr Griffiths accepted that one of the effects of PTSD (if the jury accepted the Appellant was suffering from PTSD) was to impair his general capacity for tolerance and self-restraint, but he maintained it was still admissible. It was not excluded by section 54(3) because the PTSD was relevant over and above its effect on the Appellant’s general capacity. If so, the Appellant’s mental condition, which caused him distress, anxiety, nightmares and flashbacks, should have been a circumstance or characteristic for the jury to consider in evaluating whether a person with an otherwise normal degree of tolerance and self-restraint, but suffering with PTSD, might have reacted in a similar way to the defendant.
54.
Furthermore, the Appellant’s particular circumstance of PTSD fell squarely within the requirements of section 54(1)(c) of the CAJA 2009 and also met the test in
Camplin
and
Holley
, in that the taunting was about the circumstances which gave rise to the PTSD. Telling a man with a normal degree of tolerance and self-restraint, who has never served in any army and has never set foot in Afghanistan, that he had raped women and killed children in Afghanistan would sound nonsensical. However to say the same thing to a man who had served in the army in Afghanistan and suffered with PTSD as a result would be substantially different. The relevance of the PTSD to the Appellant’s conduct therefore was not only to reduce his general capacity for tolerance and self-restraint, but also to explain the gravity of the trigger for the Appellant’s conduct.
Conclusions on appeal against conviction
55.
Having accepted that in principle a disorder such as PTSD may be a relevant circumstance for the jury to consider when assessing each of the components of the partial defence of loss of control, we analyse its relevance on the facts of this case.
56.
For present purposes we shall assume that the jury found that the Appellant was suffering from PTSD as a result of his experiences in Afghanistan, although that is by no means certain. In the years since leaving Afghanistan and before the killing, there was no record of any complaint of the symptoms of PTSD, he had held down a job, he had no history of violence and he had normal social relationships. The experts who testified he was suffering from PTSD had relied on his own reports of symptoms and on a diagnosis made after the killing and, in one case, had used a questionable methodology to reach his conclusion.
57.
Accepting that the two doctors called for the defence were or may have been correct, however, there remain two hurdles in the Appellant’s path.
58.
We note that, according to the Appellant’s own evidence and his account to medical professionals, the effects of PTSD on him were nightmares and flashbacks which, when they became intense, caused him to drink more alcohol. The flashbacks were set off by, for example, the sound of aeroplanes or personal radios. There was no evidence from the Appellant that he experienced any sort of flashback at the time he killed the deceased and he had never become violent in response to flashbacks. Dr Desautel’s initial observation that the insults of the deceased “would have caused the defendant to stress by triggering memories and his PTSD symptoms (….exacerbated by the addition of alcohol) resulting in the defendant becoming more disinhibited”, was qualified in cross-examination in that he conceded this was no more than a hypothesis. There was, therefore, little, if any, basis in the evidence for saying that the Appellant’s PTSD in fact affected his general capacity for tolerance and self-restraint at the time of the killing.
59.
However, the first, and insurmountable, hurdle faced by the Appellant was that, if and insofar as his PTSD did affect his general capacity for tolerance and self-restraint, that was irrelevant to the third component of the defence. In effect, the defence wished the judge to direct the jury to consider whether the hypothetical person of the defendant’s age and sex, with a normal degree of tolerance and self-restraint, but who had contracted PTSD which reduced his general capacity for tolerance and self-restraint, would have acted as he did. As it seems to us, this is precisely the kind of consideration that Parliament expressly excluded at this stage. The hypothetical person is assumed to have a normal degree of tolerance and self-restraint. Accordingly, we are satisfied the judge properly resisted the defence’s efforts to dilute the objective standard laid down in section 54(1)(c).
60.
There is a second hurdle. There was undoubtedly a link between the deceased’s alleged conduct and the Appellant’s military service in Afghanistan. The insults were directed at the Appellant’s military service and, if his account was true, he knew that he had suffered mentally as a result of his time in Afghanistan. His military service and its effects upon him were therefore relevant to the issue of the qualifying trigger. The judge accepted this and directed the jury to consider all of the evidence about the Appellant’s background in deciding whether the Appellant’s loss of self-control was attributable to things done or said which constituted circumstances of an extremely grave character, and caused the Appellant to have a justifiable sense of being seriously wronged.
61.
He may not have used the “label” PTSD, but the judge directed the jury to assess the deceased’s words and conduct (slapping about the head, using derogatory terms and accusing those who served in Afghanistan of improper motives and appalling conduct) against the background of the relationship between the Appellant and the deceased and the Appellant’s personal circumstances. In dealing with the second component of the defence, he directed the jury in terms that in assessing the qualifying trigger they “must consider the defendant’s personal history, in particular … his experiences in Afghanistan and how they affected him and his personality.” No complaint is made about those directions.
62.
When he turned to the third component, the judge directed the jury to consider “whether a man aged in his early 20s with a normal degree of tolerance and self-restraint placed in the same situation might have acted in the same or similar way as the defendant did…” At other points in the summing up the judge used the expressions “in his circumstances” and “placed in the same predicament” or “in the same situation”. He did not repeat his summary of the evidence as to the Appellant’s circumstances, but it was clear from his directions taken as a whole that the jury could take all the Appellant’s relevant circumstances into account. Finally, he did not direct the jury, as he would have been entitled to do (as in
Wilcocks
), to ignore the PTSD insofar as it bore on his general capacity for tolerance and self-restraint.
63.
Thus, the Appellant was given the benefit of the kind of direction he sought: the jury were directed to consider the components of the partial defence of loss of control in the context of a man who had served in Afghanistan, suffered as a result and then was taunted about his behaviour and motives.
64.
In our view that was sufficient. Even if the judge had expressly directed the jury to bear in mind the condition of PTSD at every stage, as Mr Griffiths claims he should have done, we have no doubt the verdict would have been the same. The conviction is not unsafe and we dismiss the appeal.
R v Charice and Amberstasia Gassman
Prosecution case
65.
On the morning of 12 May 2015, a heated argument took place between Charice Gassman and the deceased, Alison Connelly, about an incident the previous evening. Later Charice Gassman went into the local shop. She was followed by the deceased and one of her daughters, Kylie Heys. The deceased “flipped” and head-butted Charice. Charice said to the deceased, “You’re fucked”, before running off in the direction of her sister Amberstasia’s house. She banged on the door, shouting, “Get the machete. I am going to fucking kill her”. She took a knife and concealed it. Followed by her sister and another woman called Danielle, she headed for Kylie Heys’ flat at Evelyn House, where the deceased was staying. She was overheard issuing a variety of threats to kill or murder Ms Connelly as she made her way there including, “I am going to nank (stab) some bitch”. She did not want any witnesses for what she was about to do. Charice banged and kicked on Ms Heys’ front door. Amberstasia shouted to the deceased to “get the fuck down here” and told Charice to wait until they came out. When the deceased did leave the flat, a fight ensued and Amberstasia warned Ms Connelly, “I wouldn’t do that if I were you”. She did nothing to stop her sister. Charice took the knife from her waistband and stabbed Ms Connelly once in the chest. Amberstasia hit the deceased on the back of the head and shouted, “That’s what comes when you fuck with my family”. As the sisters left the scene, she threatened, “If my sister goes down for this I will come back and get you.” Shortly thereafter, the deceased died.
66.
Both applicants were arrested and interviewed. Charice Gassman declined to answer any questions.
67.
Dr. Sandford, a consultant forensic psychiatrist, interviewed Charice Gassman in October 2015. She was not suffering from any major mental illness, but she was suffering from a Cluster B personality disorder (which is similar to Emotionally Unstable Personality Disorder (“EUPD”) but is a broader category). She had anti-social and emotionally unstable personality traits and, at the time of the killing, she had an abnormal mental state, i.e. an intense anger related to her personality.
Defence case
68.
Charice Gassman told the jury she felt dizzy after the head-butting incident. She rang her father and asked him to take her to hospital. She then knocked hard on her sister’s front door and was let in. She said that she did not remember much after this; she did not remember getting a knife from her sister’s house or the journey back to Kylie’s flat. The next thing she remembered was the deceased shouting, “She has stabbed me.” She looked down and saw a knife in her hands.
69.
She said that the day before the incident, her step-grandfather had died. He had sexually abused her between the ages of 13 and 16 and she had only ever told two people about the abuse, one of whom was Danielle, whom she had told the day before. She had been smoking cannabis daily since the age of 14 and it calmed her down and took away her angry feelings.
70.
She said that she had seen medical professionals about her anger and that she had an issue with voices in her head.
71.
Dr. Bradley, a consultant forensic psychiatrist, gave evidence that Charice Gassman was suffering from EUPD, which meant that she was unable to regulate her emotions and was abnormally sensitive. People who suffer from EUPD can become extremely distressed and angry, self-harm and take a long time to calm down. Sexual abuse is often a principal cause of the more extreme types of EUPD.
72.
Charice also had a chronic cannabis dependency, part of which was related to the abuse she had suffered. In November 2014, she had seen a high intensity therapist who thought she was having periods of dissociation because she spoke of three different personalities. Transient psychotic symptoms and hearing voices were common with EUPD, but cannabis could also cause drug-induced psychosis.
73.
In December 2014, Charice declared that she might kill if someone upset her and she was not using cannabis. She was told that she needed proper psychological treatment, but she failed to engage with the relevant bodies.
74.
The doctor thought that the account given by Charice was genuine and that on 15 May 2015 she was suffering from “an abnormality of mental functioning and, in particular, a liability to outbursts of anger or violence with an inability to control the resulting behavioural explosion”. Within the definition of EUPD was an impairment of ability to exercise self-control. This diagnosis provided an explanation for the killing.
Issues as left to the jury
75.
The Judge handed down written directions and a route to verdict. He correctly identified that the burden of proof remained on the Crown and dealt with the elements required by section 54(1).
76.
In relation to the third component considered above, the judge directed the jury to take into account all of Charice’s circumstances, such as the death of her abusive step-grandfather, the break-up of her relationship with her boyfriend and the threat of eviction, but he expressly directed them to ignore the evidence that Charice was suffering from EUPD which may have made her less able to exercise tolerance and self-restraint than a person of her age and sex. This was because “Parliament required a jury to consider whether a person with a normal degree of tolerance and restraint might have acted in the same or similar way.” The fact that she was prone to lose her temper, particularly when she had not taken cannabis, bore on her general capacity for self-control and was irrelevant on this issue.
Ground of Appeal against conviction
77.
There is one ground of appeal against conviction, namely that the directions of the trial judge on the issue of loss of control were wrong in law.
78.
Mr Adam Vaitilingam QC invited the court to conclude that, on the facts of this case, the diagnosis of EUPD was relevant to the third component of the defence because it affected the way she reacted to the death of her abuser. For a defendant suffering from EUPD, a traumatic event may be more distressing than it would be for a normal person, because she may become disproportionately emotional. This has nothing to do with her general capacity for tolerance and self-restraint, but relates to her ability to exercise self-control on the day in question. On the day she killed Ms Connelly, she was in a greatly distressed state. The jury should have been directed to consider the hypothetical person with a normal degree of tolerance and self-restraint, but in such a state.
79.
He attempted to distinguish a “general” capacity for tolerance and self-restraint from the ability to exercise self-control in the face of particular circumstances. He accepted that, had it not been for the death of the step-grandfather the day before, the evidence of EUPD would not have been admissible at the third stage. If a defendant is by nature bad-tempered and easily provoked (particularly when she has not taken cannabis), that is her general capacity and, insofar as her mental condition makes her a generally bad tempered person, it is to be disregarded. It is not a “circumstance” for the purposes of section 54(1)(c). However, he insisted that the death of the step-grandfather makes all the difference. If a defendant kills while a particularly traumatic event has placed her in a distressed condition, the consequences of that event should be left to the jury as one of her “circumstances” in the way that Mr Vaitilingam understood Holroyde J had done in
Wilcocks
.
80.
Mr Vaitilingam proposed a direction along these lines:
“Given the condition that you find Charice Gassmann was in that morning as a result of her grandfather/abuser’s death, how might a person of her age and sex in that condition have reacted to the provocation had she had normal powers of tolerance and self-restraint?” Had such a direction been given, it was his contention that the jury might have decided that Charice Gassmann was in an abnormally distressed and emotional state that morning, far beyond what one might expect of someone whose grandfather/abuser had just died and that a woman in a similar state of distress might have reacted to the provocation in a similar way, even though that woman had normal powers of tolerance and self-restraint.”
Conclusions on the application for leave to appeal conviction
81.
Mr Vaitilingam’s distinction was an ingenious one, but we have no doubt the judge was correct in the way he directed the jury. The only relevance of EUPD to Charice Gassmann’s circumstances for the purposes of the third component was that it bore on her general capacity for tolerance and self-restraint. By its very definition, EUPD impairs a person’s general ability to exercise self-control; as a result of her disorder, she overreacted to events, she lost her temper and she took a long time to calm down. Furthermore, the qualifying trigger was said to be the deceased’s head-butt. Nothing was said or done which was directly referable to her mental condition, the sexual abuse she had suffered, the death of her grandfather or her withdrawal from cannabis. In those circumstances, we agree with Mr Mably that it is difficult to identify how it can be said that the condition of EUPD was relevant to the third component in any way other than her general capacity to react to events.
82.
The result is not unduly harsh because, if her condition was as bad as the defence claimed, and if a combination of her illness and a series of events just before the killing provided an explanation for the killing, the appropriate partial defence for her was diminished responsibility. On one view that was the only appropriate defence for her and the judge and Mr Malcolm QC for the prosecution were overly generous to her in agreeing that loss of control should be left to the jury. Having decided the defence should be left, the judge directed the jury fully and fairly to take into account at each stage all of her circumstances, such as the death of her abusive grandfather, the breakdown of her relationship with her boyfriend and the threat of eviction. He only excluded the evidence of EUPD from their consideration in so far as it bore on her general capacity for tolerance and self-restraint. He thereby fully complied with the requirements of section 54(1)(a) to (c) and section 54(3). There is nothing unsafe about the conviction. We refuse leave.
Appeal against sentence
Sentencing hearing
83.
Charice Gassman was aged 19 at the time of the sentencing hearing. She had three previous court appearances between 2011 and 2013 for three offences: common assault, inflicting grievous bodily harm and criminal damage. She had not previously served a custodial sentence.
84.
Amberstasia Gassman was aged 23 at sentence. She had three previous court appearances between 2008 and 2014 for three offences: common assault, assaulting a police constable and resisting or obstructing a police constable. She had not previously served a custodial sentence.
85.
The trial judge had a number of victim personal statements from members of Ms Connelly’s family, setting out the devastating consequences of her death to them all, especially to the youngest of her eight children, her son aged 12.
86.
He also had the benefit of a number of medical reports. We have already referred to those on Charice. There was a psychiatric report on Amberstasia setting out her history, which suggested that she too had experienced symptoms consistent with a diagnosis of EUPD. She was not suffering from a severe or enduring mental illness.
87.
The judge described the applicants as involved in a joint enterprise that left Ms Connelly bleeding to death outside her daughter’s home. Charice was intent on revenge and really serious harm when she armed herself with a knife and then headed off uttering threats to kill or murder. When confronted by Ms Connelly she killed her. At some point in their journey to Evelyn House, at the latest, Amberstasia realised that Charice had a knife and, having heard the threats, realised she might use it. She herself was intent on using violence towards the deceased as well as encouraging and backing up her sister. In the aftermath of the stabbing, when she may not have known that Ms Connelly was dying, Amberstasia was heard to shout, “That’s what happens when you mess with my family.”
88.
Although Charice had written to the court to express her remorse, he had seen few signs of genuine remorse when giving evidence and he had detected a sense of anger and irritation. She was prone to act violently and unable to control her emotions. Her EUPD acted as some impairment but not a substantial impairment.
89.
In relation to Charice, the judge took the normal starting point in paragraph 5A of schedule 21 to the Criminal Justice Act 2003 of 25 years’ custody for the minimum term because she took a knife to the scene. He noted, as he did so, that had she been under 18 the starting point would have been 12 years. He decided not to add to the starting point to reflect the aggravating factors of premeditation and her previous convictions for offences of violence, but he did make a downward adjustment of 6 years to reflect her age and mitigation, namely her disorder, her cannabis dependence and the effects of withdrawal. She was sentenced to custody for life with a minimum term of 19 years.
90.
In relation to Amberstasia Gassman, the judge bore in mind the contents of the psychiatric report and the fact that she too may have suffered from EUPD. He acknowledged she was still relatively young and her convictions for violence were limited. Balancing all the aggravating and mitigating factors and her role as he found it to be, he concluded that a sentence of 12 years’ imprisonment was appropriate.
Ground of appeal against sentence for Charice Gassman
91.
There is one ground of appeal for Charice Gassman, i.e. that the minimum term of 19 years was manifestly excessive. Mr Vaitilingam invited the court to find that in the light of her age, a degree of provocation (in the head-butt) and her mental disorder, the judge should have made a greater downward adjustment from the starting point of 25 years.
Ground of appeal against sentence for Amberstasia Gassman
92.
Similarly, Amberstasia Gassman
argues that her sentence of 12 years’ imprisonment was manifestly excessive.
93.
Mr Daymond for the applicant criticised the judge for failing to adjourn sentence for the preparation of a pre-sentence report (“PSR”). Such a report would have dealt with matters relevant to sentence other than the facts of the offence. It was his contention that a psychiatric report was not a substitute for a PSR; in effect it dealt only with the applicant having some traits of EUPD. In the light of this diagnosis a PSR was more important, rather than less so.
94.
Mr Daymond also criticised the judge’s approach to the factual basis for sentence. The judge was accused of going behind the jury’s verdict based on his directions in the route to verdict. The judge suggested that “the jury had given (Amberstasia) the benefit of the doubt” as to her intent, but went on to sentence as if she did have the necessary intent for murder. He declared himself satisfied that by the time she reached Evelyn House she was aware that her sister had a knife and intended to cause at least really serious bodily harm to Ms Connelly. There was no proper evidential basis for the finding that Amberstasia knew her sister had a knife at any stage before the stabbing. Had the jury been satisfied she knew of the knife and of her sister’s intent, they would have convicted of murder.
95.
Finally, complaint was made that the judge placed insufficient weight on
i)
the Appellant’s age (23),
ii)
the fact that she had no more than minor previous convictions,
iii)
the fact that she had played no active physical or verbal part in the stabbing, and
iv)
her mental disorder.
Conclusions on the applications for leave to appeal against sentence
Charice Gassman
96.
We understand why Mr Vaitilingam applied for leave to appeal against sentence. A term of 19 years to serve before being considered for parole is a very long time for a young woman of nineteen.
97.
However, the judge was obliged to take the starting point of 25 years for the minimum term, as Mr Vaitilingam conceded. There was here no reason to depart from the norm. The judge could have made an upward adjustment to reflect the aggravating factors but decided not to do so, rightly in our view.
98.
There was some slight mitigation in the fact she had been head-butted by the deceased that morning, but we note, as the judge noted, she had plenty of time to calm down. There was a gap of over ten minutes between the incident in the shop and the stabbing, during which time she went to her sister’s home, armed herself and then set off with the intent to kill or, at the very least, cause really serious bodily harm. Given the nature of her threats the judge would have been entitled to conclude she intended to kill.
99.
Part of the reason she did not calm down was her EUPD and that too is a mitigating factor, but Charice Gassman knew full well the effect upon her of the disorder and that she may kill and refused to engage with the help offered to her. Had she done so, she may not have reacted to the head-butt in the way that she did.
100.
We agree that a significant downward adjustment from the starting point was required for that mitigation, in particular her age. However, a reduction of 6 years (the equivalent of a 12 year determinate sentence) is a very significant reduction and, despite Mr Vaitilingam’s eloquence, we remain unpersuaded that a 19 year minimum term was excessive. We give leave but dismiss the appeal.
Amberstasia Gassman
101.
A full and careful Pre-Appeal Report including a risk assessment has been prepared for us. If there was an omission on the judge’s part, it has been remedied. We have considered the contents with care and conclude that it does not assist the applicant in the way Mr Daymond had hoped. She is making progress in prison and is motivated to address her problems, but there have been two adjudications for violent behaviour. She is currently assessed as posing a high risk of serious harm to members of the public, especially to those she perceives as a threat to her family. She now regrets her actions, but still attempts to minimise and justify her past violent behaviour. The author of the report concluded that her involvement in the death of Ms Connelly was triggered by a combination of factors: by the fact her sister had been “disrespected and wronged”, by her inability to control her anger generally (her EUPD) and by her heavy drug abuse at the time. She still disputes the extent of that involvement.
102.
That brings us to the complaint about the judge’s assessment of the factual basis for sentencing. A useful summary of the proper approach is contained in the judgment in
R v King
[2017] EWCA Crim 128
.
Sweeney J, giving the judgment of the court, said this at paragraph 31:
“In our view the correct approach by the judge, after a trial, to the determination of the factual basis upon which to pass sentence, is clear. If there is only one possible interpretation of a jury's verdict(s) then the judge must sentence on that basis. When there is more than one possible interpretation, then the judge must make up his own mind, to the criminal standard, as to the factual basis upon which to pass sentence. If there is more than one possible interpretation, and he is not sure of any of them, then (in accordance with basic fairness) he is obliged to pass sentence on the basis of the interpretation (whether in whole or in relevant part) most favourable to the defendant.”
103.
We respectfully agree.
104.
There was here more than one interpretation of the jury’s verdict and it was for the judge to form his own conclusions on the evidence as to the factual basis for sentence, if he could properly do so. In our judgment, there was ample evidence to satisfy the judge so that he was sure that the applicant knew of the knife and Charice’s intent and to reject any suggestion that Amberstasia thought they were going to Evelyn House for some innocent purpose. Charice had made her intent all too clear. It does not follow from the fact that Amberstasia was acquitted of murder that she did not know of the knife and of her sister’s intent. It means simply that the jury was not satisfied she shared her sister’s intent. Amberstasia was, therefore, a knowing party to an armed revenge mission, as the judge found, albeit not a party with the proven intent to kill or cause really serious bodily harm.
105.
She is still a young woman and before this offence was relatively lightly convicted. She is also said to suffer from a personality disorder. These were all factors that the judge bore very much in mind, as reflected in his careful sentencing remarks. Bearing the aggravating and mitigating factors in mind, we are satisfied it is not arguable that the sentence of 12 years was excessive. We refuse leave. | ```yaml
citation: '[2017] EWCA Crim 2061'
date: '2017-12-19'
judges:
- LADY JUSTICE HALLETT
``` |
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 1284
Case No:
201400723/A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Thursday, 12th June 2014
B e f o r e
:
PRESIDENT OF THE QUEEN'S BENCH DIVISION
(SIR BRIAN LEVESON)
MRS JUSTICE PATTERSON DBE
SIR RICHARD HENRIQUES
--------------------------
R E G I N A
v
JOHN LANGLEY
--------------------------
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 English
appeared on behalf of the
Applicant
Mr I McLoughlin
appeared on behalf of the
Crown
--------------------------
J U D G M E N T
1.
MRS JUSTICE PATTERSON: On 29th November 2013 in the Crown Court at Luton the appellant was convicted of conspiracy to commit robbery. On 10th January 2014 he pleaded guilty to failure to surrender to his bail. He received sentences of 8 years' imprisonment for the conspiracy, 3 months' imprisonment for the bail offence to run concurrently and was disqualified from driving for a period of 5 years, under
section 147
of the
Powers of Criminal Courts (Sentencing) Act 2000
. The appellant applies for leave to appeal against sentence on the count of conspiracy and in relation to disqualification from driving. He appeals against his sentence for the failure to surrender to bail.
2.
The appellant appeared on a 14 count indictment with six others. He was convicted on count 1, on the basis that he was involved in six robberies. The robberies were the subject of counts 2 to 7 on the indictment. The appellant was the getaway driver on each of those occasions.
3.
The facts are that a gang of robbers targeted Co-op stores and Ladbrokes betting shops based in and around the Luton area. The gang were responsible for 10 such robberies during 2012.
4.
The first robbery which involved the appellant was on 29th January 2012 at about 21.00 hours. Two men entered the Co-op store in Birdsfoot Lane. Their faces were covered. One man jumped over the counter and told a member of staff that if she stayed out of the way she would not get hurt. The other man ripped away the cash boxes from under the tills. Approximately £300 was stolen. Both men ran from the store. Cell site evidence showed that at the time of the robbery the appellant's mobile phone was using a mast which covered the location of the Co-op store.
5.
On 4th February two premises two-and-a-half miles apart were robbed within half-an-hour of each other. The first was a Ladbrokes betting shop in Hitchin Road, Luton. At about 19.40 a co-accused, Mr Gildea, and another man entered the shop wearing balaclavas. Both men were holding orange carrier bags which appeared to conceal guns. The first man shouted: "Don't think about pushing the panic alarm, just open the door". The door was opened and two men went behind the counter and demanded the money. The shop worker, Mr Tole, opened the till and told the robbers that it contained all the money that the shop had. The robbers demanded the money from the safe. Mr Tole recalled that threats were made regarding shooting. That made him think that the robbers had guns. He opened the safe which the men emptied and took the cash, which totalled about £430. Telephone evidence showed that the appellant was contacting his co-accused on the day of the robbery and again his mobile phone was using a cell site covering the location of the robbery at the time that it occurred.
6.
The next robbery was at an another Co-op store on Birdsfoot Lane. CCTV evidence showed the same two men entering the store wearing balaclavas. One vaulted over the till whilst the second pointed to a handle and hammer in his pocket and told the staff to stay still and remain silent. The other man ripped the cash boxes from under the two tills. Once again the appellant was linked to the location of the robbery by cell site evidence. Some £1200 was stolen.
7.
On 7th February, at about 20.05 the target was a Co-Op store in Dunstable. Two men entered the store, one wearing a balaclava and the other a face mask. A hammer was being carried. Both men went behind the counter, knocked off the cash safes and smashed open the tills. Between £3,000 to £4,000 was taken. Once again, on the day of the robbery the appellant's phone was in contact with his co-accused. Cell site evidence placed it in the vicinity of the robbery at the relevant time.
8.
The final two robberies in which the appellant was involved took place on the evening of 11th February. The first was an attempt to rob a Ladbrokes store on Eaton Green Road. Two men entered the shop wearing balaclavas. Upon seeing them the shop worker, Mr Sherwood-Smith, ran into the rear office and locked himself in. One of the men was carrying a white carrier bag which appeared to have some kind of weapon inside.
9.
CCTV evidence showed that one of the men pointed the object in the carrier bag at Mr Sherwood-Smith. The men repeatedly demanded that the shop worker open the door but he refused. The two men eventually left empty handed. Again, the appellant's phone was identified through cell site evidence in the vicinity of the robbery at the relevant time.
10.
The robbers then moved up the road to the Co-op on Wigmore Lane. Two men entered the store and one jumped over the counter. He shouted at the shop worker not to do anything stupid. He kicked two cash boxes off the counter and handed them to his accomplice. One of the robbers was holding a screwdriver and pointing it at a customer who was with her 9-year-old son. The robber, however, allowed her to leave the store. The robbers stole £150. They left the shop and got into a car, the make and registration of which was noted by the shop workers. The vehicle was jointly owned by the appellant's mother and uncle.
11.
Following the robbery, a text was sent by the appellant, using a cell site situated just around the corner from the Co-op to one of his co-accused.
12.
The learned judge, in his sentencing remarks, expressed the view that the evidence that the appellant was the getaway driver in respect of each of the robberies was overwhelming. Each of the robberies was carried out in more or less the same way, which showed they were planned and not spontaneous. They were carried out at the end of the day. They took about a minute. The robbers knew exactly what they wanted and how to get it. In most of the Co-op robberies a real weapon was produced or could be seen. In the Ladbrokes’ offences the impression was given that the offenders had a gun. Had they not given that impression, they would have had no ability to get into the protected area behind the counter. Staff and customers were scared and frightened but no one was physically injured.
13.
Under the Robbery Guideline of the Sentencing Guidelines Council this was a case, the judge held, that fell either within the guidelines for robberies of small business or less sophisticated commercial robberies. The offences all fell within level 2 where a weapon was produced and used to threaten, with the exception of the first in time, where no weapon was used. The robbery guidelines were for a single offence, carried out by a first offender, after a trial. Where multiple offences were concerned, then the sentence imposed had to reflect the overall criminality. For a single offence involving an imitation firearm, the starting point after a trial was likely to be in the order of 7 years. The fact that the amount of money stolen was small was not a mitigating factor where the intention was to take a full cash till at the end of the day. The judge accepted that the appellant's role as a getaway driver put him into a different category. However, the appellant carried out an important role.
14.
The position in the Ladbrokes robberies was different from the others and aggravated by the impression that the robbers had guns. It was that which made the shop workers react in the way they did. A further aggravating factor in relation to all the robberies was the fact that there were two robbers each wearing facial disguises. The combination of two disguised men with weapons was an aggravating factor.
15.
The appellant had a long list of previous convictions including robbery. There was no doubt that he was aware of the weapons and disguises being used. There was no doubt that he knew it was necessary to pretend to have a gun for the Ladbrokes robbery. However, he played a lesser role than those that had gone into the shops. The letter he had written to the judge showed a degree of insight into the position in which he found himself and of the problems relating to drugs that he had faced in his life. The judge accepted that the appellant felt remorse for those affected by his co-accused's actions and that he appreciated the seriousness of his position. He had a loving partner and she and his family would suffer.
16.
The judge took as a starting point a period of 9 years' imprisonment for the conspiracy but because of the lesser role of the appellant reduced it to 8 years. The appellant had pleaded guilty to a breach of bail for which a sentence of 3 months' imprisonment was imposed to be served concurrently. As the driver of the car used in the course of crime he was eligible to be disqualified. Applying the relevant section of
Powers of Criminal Courts (Sentencing) Act 2000
, the judge was satisfied the appellant should be disqualified for an appropriate period which was 5 years bearing in mind the sentence imposed.
17.
Before us three points have been taken. First, it has been argued that it was wrong in principle for the judge to sentence the appellant upon the basis that he had knowledge of, or involvement with, an imitation firearm in circumstances where there was no firearm count on the indictment. That was a settled and clear principle of law. Various cases are relied upon in support. Those include the cases of
R v Guy
93 Cr App R 108,
R v McGrath
8 Cr App R 372,
R v Eubank
[2002] 2 Cr App R 4
and
R v Murphy
[2000] 3 Cr App R 39
.
18.
The difficulty with that submission is that all of the cases relied upon were decided before the current Sentencing Guidelines Council Guideline on Robbery. The guideline makes it clear that in assessing the overall seriousness of the robbery one of the factors to be taken into account is the use of or presence of a weapon, even if not used. In determining which level of seriousness it is appropriate to attribute to the offence, level 2 expressly deals with where a weapon is produced and used to threaten or to cause a victim harm. Criterion (c) directs that regard is to be had to the nature of the weapon used, whether it is real, and if it was a real firearm, whether it was loaded.
19.
Since the coming into effect of
section 125
of the
Coroner and Justice Act 2009
, the duty of the sentencing judge is to follow guidelines unless it would be contrary to the interests of justice to do so. It follows that as part of the sentencing exercise now the judge is obliged, when sentencing for a conspiracy to rob, to have regard to whether a weapon was present and used or threatened to be used in terms of determining the level of seriousness of the offence in the resultant sentence.
20.
In any event, taking into account the numbers of robberies involved here, the period of time during which the gang operated and the way in which they operated, it is our view that the sentence imposed by the learned sentencing judge was entirely appropriate. The sentencing judge's approach, which was to take into account the presence of a firearm in defining his starting point cannot be faulted. However, we do note that the Sentencing Guideline on Robbery is currently under review by the Sentencing Council. It would be appropriate for them to consider the interrelationship of the earlier authorities that have been relied upon in this case and the significance of them in relation to the formerly accepted principle that where a firearm is involved it should be charged as a separate count. However, as we have set out, in the particular circumstances here the ultimate sentence that the judge imposed having regard to the numbers of offences comprised within the conspiracy and the antecedents of the appellant was entirely appropriate.
21.
Second, it is submitted that the sentence imposed for the Bail Act offence was manifestly excessive in light of the fact that the appellant surrendered voluntarily some days late and that there was minimal disruption to the trial which continued in his absence. The appellant had pleaded guilty at the first opportunity.
22.
Those submissions totally ignore the criminal record of the appellant. In his extensive antecedents are five previous offences of failing to surrender to bail. They are clearly a serious factor which the learned judge was right to take into account and impose, as he did, a sentence of imprisonment within the appropriate range. Following the relevant sentencing guideline the starting point is some 14 days imprisonment with a range from a community order up to 40 weeks' custody.
23.
Third, it is submitted that the power to disqualify from driving under
section 147
of the
Powers of Criminal Courts (Sentencing) Act 2000
is not available on conviction for a conspiracy and reliance is placed on the case of
R v Terence Riley
(1983) 5 Cr App R(S) 33. The case of
Riley
concerned disqualification under the
Powers of Criminal Courts Act 1973
section 44(2)
. That reads:
"If in a case to which this section applies the Crown Court is satisfied that a motor vehicle was used (by the person convicted or by anyone else) for the purpose of committing or facilitating the commission of the offence in question (within the meaning of
section 43
of
the Act
) the court may order the person convicted to be disqualified for such period as the court thinks fit from holding or obtaining a licence to drive a motor vehicle."
24.
The point that arose was whether, when there was a plea to a conspiracy, use of a motorcar facilitated the commission of the offence, namely the conspiracy. On the facts it was held it did not. Overt acts in which a conspiracy could be inferred did not in themselves amount to a conspiracy. There was, therefore, no jurisdiction to make the order.
25.
That case, however, was distinguished in the case of
R v Michael Devine
(1990) 12 Cr App R 235
, where the court held that an offender could be disqualified when he had used a vehicle in an attempt to avoid apprehension for a conspiracy. Having set out
section 44(2)
of
the 1973 Act
, the court then turned to
section 43(2)
of
the Act
. That provides:
"Facilitating the commission of an offence shall be taken for the purposes of this section and
section 44
of
this Act
, to include the taking of any steps, after it has been committed for the purpose of disposing of any property to which it relates, or avoiding apprehension or detection."
26.
The court held that as the vehicle was being used for the purpose of avoiding apprehension and detection in relation to the conspiracy with which the appellants were charged the sentence had been properly imposed. It is of note that
section 43(2)
does not appear within the judgment in the case of
Riley
.
27.
In this case the disqualification was made under
section 147(6)
of the
Powers of Criminal Courts (Sentencing) Act 2000
. That is in similar terms to
section 43(2)
of 1973 Act. The car being driven by the appellant was the getaway car, was clearly used to avoid apprehension and detection after the commission of the robberies and was used to take the property from the robbery away from the scene of the crime.
28.
It follows that, in the circumstances of this case, the power to disqualify was exercised appropriately.
29.
In any event the court had the power, under
section 146
of the
Powers of Criminal Courts (Sentencing) Act 2000
to, in addition to dealing with the appellant for the offence of conspiracy, deal with him by disqualification for driving for such period as it thinks fit.
30.
Although a submission was made as to the duration of the disqualification, in the circumstances of this case we find that the length of the disqualification was entirely appropriate. In those circumstances we grant leave to appeal on grounds 1 and 3 but dismiss the appeal. | ```yaml
citation: '[2014] EWCA Crim 1284'
date: '2014-06-12'
judges:
- MRS JUSTICE PATTERSON DBE
- SIR RICHARD HENRIQUES
``` |
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 3059
Case No:
200605956 C1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM PRESTON CROWN COURT
HHJ OPENSHAW QC
200605956C1 1
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
18/12/2008
Before :
LORD JUSTICE PILL
MR JUSTICE SWEENEY
and
SIR CHRISTOPHER HOLLAND
- - - - - - - - - - - - - - - - - - - - -
Between :
Peter Geoffrey Moyle
Appellant
- and -
R
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Lord Carlile of Berriew QC and Miss C Rimmer (instructed by Keith Park) for the Appellant
Mr J McDermott QC
(instructed by
CPS
) for the Respondent
Hearing date : 17 October 2008
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Pill :
1.
On 11 November 2004 in the Crown Court at Preston before HHJ Openshaw QC and a jury, Peter Geoffrey Moyle was convicted of murder. He was sentenced to life imprisonment with a minimum term of 14 years and 5 months. He appeals against conviction by leave of the full court.
2.
On 6 April 2004, the deceased, David Brown, aged 67 years, was knocked to the ground outside the The George public house, Blackpool, and repeatedly kicked. He sustained catastrophic head injuries which caused his death three weeks later on 23 April 2004. He had been a regular customer at The George.
3.
The prosecution case was that the appellant had inflicted the blows that caused death. In interview and evidence, the appellant admitted striking the deceased but denied that he had caused the fatal head injuries. He claimed to have been provoked by the deceased. Thus the issues for the jury were whether the appellant had caused the injury from which the deceased died, whether he had intended either to kill the deceased or cause him really serious injury and, if so, whether he had been provoked by the deceased to act as he did.
4.
Evidence was given of unpleasantness between the two men at the public house some weeks before 6 April. Before his death occurred, the deceased had been drinking in The George for several hours. The landlord saw the deceased and the appellant engaged in a struggle and saw the deceased raise his hand as if to punch the appellant. The landlord forcibly removed the deceased from the public house.
5.
Through a window at the public house, the deceased was observed to be on the ground and being kicked viciously by the appellant. One of the witnesses went outside and saw the deceased lying on the ground. The appellant was two to three feet away and grinning. The appellant then walked away casually. Another regular at the public house pursued the appellant and took hold of him; the appellant grinned, laughed and ran off. Blood staining was present on the front part of the right instep of the appellant’s shoe and the blood was found to be that of the deceased.
6.
In evidence, the appellant said that he had drunk six cans of lager, a pint of lager and two double whiskies before entering The George. He said that he had been drunk, but not excessively so, and he had been aware of his actions.
7.
When he had been in the public house for only a few minutes, the deceased crossed the room and punched him in the face. He said he was ushered from the premises by the landlord and the deceased followed about two minutes later. The deceased staggered over to him and fell to the ground, the back of his head hitting the pavement. The appellant stood over him and punched him with his fist about three times. He was angry about what had happened in the public house. He denied that he had kicked the deceased. He did not know how the blood spots came to be on his trainers.
8.
The appellant accepted that he had told the police in interview that he had punched the deceased to the ground. He said that was untrue. He had told that untruth because he thought it sounded better than the truth which was that he had punched the deceased while the deceased was already on the ground.
9.
It is now claimed on behalf of the appellant that he was unfit to plead at the time of the trial in November 2004. It is further submitted that, if he was fit to plead, he was, at the time of the alleged offence, suffering from such abnormality of mind as substantially impaired his mental responsibility for his acts in being a party to the killing and that, by virtue of
section 2
of the
Homicide Act 1957
, any conviction should have been for manslaughter. Neither issue was raised at the hearing before Judge Openshaw. The appellant was represented at the trial by leading and junior counsel as well as solicitors. A medical report, dated 1 September 2004, had been obtained from Dr T.J. O’Hare, consultant psychiatrist.
10.
Dr O’Hare’s report was based on detailed information he had been given about the appellant’s medical history, a two hour interview with the appellant and a discussion with Mr A. Bates, the appellant’s Community Mental Health Nurse.
11.
Dr O’Hare described the appellant’s family and personal history, summarised his medical history and referred to the optimism which had been felt in the early part of 2004 about the appellant’s future. Dr O’Hare considered, in detail, the circumstances of the alleged offence. He considered that he had established a good rapport with the appellant. The appellant had mentioned lack of intent and diminished responsibility due to alcohol and paranoia as possible defences to the charge of murder.
12.
Dr O’Hare stated:
“All the available information indicates that over the next few months [in early 2004], his mental state and functioning improved substantially. However, it is my opinion that, by the time of the alleged offence, he had not fully recovered from his illness, and although the florid psychotic symptoms had resolved, he was continuing to report paranoid feelings, felt suspicious of the motives of others towards himself, and avoided crowded situations. These symptoms have evidently persisted during his remand.”
13.
In the doctor’s opinion, the disinhibiting effect of alcohol had been a significant factor in the appellant’s behaviour. He did not consider that a defence of insanity was applicable. As to diminished responsibility, he stated:
“I will now attempt to address the issue of whether his responsibility was substantially diminished. I have no doubt that Peter Moyle suffers from paranoid schizophrenia, a severe mental illness within the meaning of the
Mental Health Act 1983
. He was evidently very unwell at the time of his admission to hospital in December 2003. However, by the time of the alleged offence, his mental state and functioning were much improved but he continued to experience symptoms, as previously described. While he was not frankly psychotic or “out of touch with reality”, my opinion is that these symptoms are likely to have influenced his perception of situations and to have made him mistrustful of the motives of others. If a person is experiencing such symptoms on a regular basis, they are likely to feel under stress and this is likely to impair their ability to tolerate additional stress such as being subject to an assault. My impression is that this reduced tolerance to stress, as a result of residual symptoms of his schizophrenia, combined with alcohol intoxication, contributed to his violent behaviour. I think it unlikely that he was acting under the direct influence of psychotic symptoms (as, for example, when a person suffering from delusions of persecution attacks their supposed persecutor; another example would be a person who carries out an assault in response to auditory hallucinations, believing them to be instructions from God).
I therefore think it is reasonable to infer that Peter Moyle’s responsibility for his actions was, to some extent, impaired by illness. However, on the basis of the information available to me, I do not feel able to state that the impairment of his responsibility was “substantial”.”
14.
As to fitness to plead, Dr O’Hare stated:
“At the time of my assessment, Peter Moyle was able to understand the nature of the evidence; plead with understanding; instruct his legal representatives; challenge a juror and follow Court proceedings. He was therefore fit to plead. However, he told me that he had not taken antipsychotic medication for the past month and that there had been a recent deterioration in his mental state. I therefore recommend that his fitness to plead be reassessed nearer the time of his trial: I assume that the Crown Prosecution Service will be requesting a report from a Psychiatrist.”
No further report was obtained, the appellant declining to co-operate with the psychiatrist appointed (Dr Plunkett).
15.
In addition to the report of Dr O’Hare, this court had available medical reports from four consultant psychiatrists who have examined him post-conviction. Three of them gave oral evidence.
Fitness to Plead
16.
The test was stated by Alderson B in
Pritchard
(1836) 7 C&P 303:
“There are three points to be enquired into:- first, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of the proceedings in the trial so as to make a proper defence - to know that he might challenge any of you [the jury] to whom he may object - and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation.'”
17.
The test for fitness to plead was considered in this court in
Padola
[1959] 43 Cr App R 220
(a five judge constitution) and
Robertson
[1968] 52 Cr App R 690
. The
Pritchard
test was approved. In
Padola
, Lord Parker CJ stated, at page 239:
“In our judgment the direction given by Alderson B. is not intended to cover and does not cover a case where the prisoner can plead to the indictment and has the physical and mental capacity to know that he has the right of challenge and to understand the case as it proceeds.”
Robertson
was a case in which there had been a finding of disability before arraignment. The defendant submitted that he should have been tried. Lord Parker referred to medical evidence that “[the defendant’s] delusional thinking might cause him to use his challenges wrongly or unwisely and that his “delusional thinking”, from which he suffers, might cause him to act otherwise than in his own best interest; in other words unwisely, and so on.” The finding of disability was quashed, the court accepting the submission on behalf of the defendant that:
“On the evidence here [he] appears to have had a complete understanding of the legal proceedings and all that is involved and, although he suffers from delusions which at any moment might interfere with a proper action on his part, that is not a matter which should deprive him of his right of being tried.”
18.
A finding of disability was also quashed in
Berry
[1978] 66 Cr App R 156
, Lord Lane, CJ, presiding. Lord Lane found the direction to the jury inadequate stating, at page 158:
“It may very well be that the jury may come to the conclusion that a defendant is highly abnormal, but a high degree of abnormality does not mean that the man is incapable of following a trial or giving evidence or instructing counsel and so on.”
19.
Giving the judgment of this court in
M
[2003] EWCA Crim 3452
, Keene LJ referred to the authorities mentioned above and stated, at paragraph 31, that they “clearly establish the law on this topic in this jurisdiction.”
20.
In submitting that the appellant was unfit to plead at the time of his trial in September 2004, Lord Carlile QC, who did not appear at the trial, seeks to rely on the evidence of the three consultant forensic psychiatrists called before the court. In May 2005, the appellant was transferred from HMP Preston to Guild Lodge Medium Secure Unit under
section 47
/49 of the
Mental Health Act 1983
because his mental state had deteriorated to an extent that he required hospital care. He has remained an inpatient at Guild Lodge and, since his transfer, Dr R Abdur has been the Responsible Medical Officer (“RMO”). He first met the appellant in January 2005 as visiting psychiatrist at the prison and reviewed his case in February and again in April 2005. He has since interviewed the appellant regularly.
21.
In his report, Dr Abdur refers in great detail to the hospital notes. His opinion, as expressed in his report of 18 April 2006, was that the appellant “suffers from a serious enduring mental illness called Paranoid Schizophrenia.” The prognosis is poor and confirmed in a further report dated 23 September 2008. That opinion is shared by Dr M Ventresss in his report of 19 March 2008. In his opinion, the appellant has had symptoms of the illness since around 2002 but that these have “preoccupied him to greater or lesser extents and he has chosen, or been able, to conceal these for significant periods.” Dr J McKenna (9 October 2006) and Professor D Grubin (19 July 2008) share that opinion.
22.
In his oral evidence, Dr Abdur stated that the appellant has been concealing his symptoms. Asked why the appellant had refused to see Dr Plunkett, Dr Abdur stated:
“My opinion is that this was based on his delusions. He felt that Dr Plunkett was part of a larger conspiracy that involved the courts, the police, the prison system. He was under the impression that the court case was already mapped out before the trial and that he would be hung, drawn and quartered anyway.”
23.
Dr Abdur accepted that the appellant “can go about his day to day living activities without any problems but it is his inner belief system that is psychotic.” Dr Abdur added:
“. . . I have known him for about three years now, my Lord. On a day to day basis Mr Moyle can go about his daily business, he engages in activities on the wards. But underneath it all there is always the psychosis present and you only need to scratch the surface and the delusions come out.”
24.
We set out further extracts from Dr Abdur’s oral evidence:
“Psychotic patients sometimes do not talk about their symptoms because they feel so vulnerable as a result of the symptoms that if they were to disclose these symptoms something catastrophic might happen. This was reported to me by Mr Moyle later, that during the trial he felt that if he were to disclose his psychotic symptoms to the doctors then he would be convicted of witchcraft and he would be executed. His way of protecting himself was not to disclose his symptoms. Even at the best of times Mr Moyle does not talk about his symptoms very openly. . . ”
“Because of the nature of the illness, Mr Moyle does not live in a real world. He is not in touch with reality, even at the best of times. I think at that time, because of his psychotic presentation, this would have had a profound effect on how he perceived what was going on around him. Some of the delusions that would have hampered his understanding of the trial process would have been his belief that there was a conspiracy involving the courts, the police, the prison system, and even the mental health professionals. He also believed that if he were to disclose his psychiatric symptoms then he would be persecuted even more for it.”
“. . . he can go about his day to day living activities without any problems but it is his inner belief system that is psychotic.”
“. . . Again, most of the information I have gathered in retrospect is considered in hindsight. I am not sure if everything would be accurate, but from what I gather from Mr Moyle he told me that at the time he did not trust his own solicitor and he could not see how he could have a fair trial. Because of his delusions, his own description of the index offence has changed over time. It has always been in disturbing delusional terms, about how the victim died. It was either the Queen of Sheba, which is one of the characters of his delusions, who killed the victim or it was somebody else or some other spirits. His account often changed over time. Based on that I wonder if he was, at the time, in the state of mind where he could actually instruct his counsel.”
“. . . In terms of understanding the charges, Mr Moyle has always given the impression that he understood the charge, which was murder, but he does not agree with the fact that he should have been charged with the offence of murder because according to him he only punched the victim a few times. He believes that somebody else finished the victim off. So he understands the charges but he does not agree with what was the cause. I think that was very delusional.”
“. . . Mr Moyle, when he is stressed, one of his coping strategies is to withdraw into his own space.”
25.
Questioned by the court, Dr Abdur accepted that the appellant had always been able to give a rational explanation of the tragic events outside the public house on 6 April 2004:
“In terms of the particular scuffle, he can talk about it in a more or less rational way but any further then he becomes all embroiled in his delusions. As I said, his account has changed over time depending on the course of his illness.”
“. . . I have to be careful, because on one hand he could try to exculpate himself from the guilt and always say that somebody else finished him off or kicked him when the victim was lying on the floor. That could be normal. That might be delusional but it might not be as well because that might be an explanation that anybody would give, that “I only punched him so I do not know how he died. Somebody else must have come and inflicted more injury”.”
Dr Abdur added that the appellant had always and consistently denied that he kicked the victim. He had given different accounts of his punching.
26.
On remand, the appellant had been in a general psychiatric hospital which he found very unpleasant. He made it clear to Dr Abdur that he did not want to return there, saying to Dr Abdur, that “he did not want to go back to a “nut house.””
27.
In his report of 9 October 2006, Dr McKenna stated that it was now difficult to reconstruct with certainty the appellant’s likely mental state at the time of the trial. The appellant told the doctor that, when he was facing trial, he felt that he could not trust anybody sufficiently to disclose his experiences. Dr McKenna considered that in terms of the appellant’s global intellectual abilities, including comprehension and memory, there was little doubt that he would have been able to understand the nature of the charge he faced and the significance of entering a plea of guilty or not guilty. His history did, however, raise concern about whether or not mental disorder might have affected his ability correctly to appraise, believe, weigh up and validly use information relating to the legal proceedings. Dr McKenna added:
“There is also very strong evidence, in my view, that the particular symptoms of his mental disorder had strong and direct relevance to the Court proceedings and their background. Mr Moyle has stated that while he was in prison, God told him that he was innocent, and he also came to incorporate or assimilate the fact of the victim’s death into his extensive persecutory delusional system (for example, maintaining that meningitis was induced by the Queen of Sheba). At interview, he suggested to me that he had felt that if he had disclosed his beliefs at the time, he would have been hanged, for witchcraft. He also appears to have believed, or at least suspected, that the legal proceedings were in some way ‘set up’, and that the outcome was preordained (he saw imprisonment in a comparable light, believing that it was something that had been deliberately engineered to suit the purposes of his putative persecutors).
It seems very likely that at the relevant time Mr Moyle, and as part of the effects of active illness, was preoccupied with his internal experiences, mistrustful of others, and deluded about the criminal justice system, the legal proceedings, the background to his charge, and about those involved in them. On balance, and on reviewing the evidence that is now available, I believe that there are strong grounds to suspect that Mr Moyle’s psychotic disorder significantly impaired his ability to take a proper or valid part in his trial, and significantly affected his capacity to be properly defended in legal proceedings.”
28.
There was strong evidence, the doctor stated, that the appellant had been reluctant to disclose the nature and depths of his active symptomatology:
“While on the one hand it is possible to see such behaviour is as straightforwardly understandable (i.e. as a tactic to avoid clear negative consequences from his point of view, such as hospitalisation or medication), I would also suggest that for people suffering in the way that Mr Moyle was, the issue can be closer to, from their own perspective, one of trying to maintain physical and psychological survival. In other words, non-disclosure is not necessarily due to lack of co-operation or malice.”
29.
Dr McKenna also considered that the appellant’s suspiciousness was important:
“If you are suspicious of other peoples’ motives, or indeed their true identity, you are much less likely to be open with them.”
The appellant was trying to protect himself psychologically and regarded the experiences he was undergoing as “an assault on his physical and psychological integrity.”
30.
In his oral evidence, Dr McKenna stated that what struck him about the fatal incident was that the appellant “gave an account of his behaviour which was completely at odds with the account provided by people at the scene . . . He can certainly understand, for example, what was being said in court on an, if you like, grammatical level, but at a more distal level the way that he would interpret that and manipulate that information and make use of it, I think, was almost certainly corrupted by his illness.” Dr McKenna concluded that the appellant “lacked the capacity to be properly defended and that he was unfit to plead.” Asked about the evidence the appellant gave, Dr McKenna said that the appellant claims only to have punched the victim as opposed to kicking him and said that it “could either be part of his delusional thought process or it could simply be guile.” In Dr McKenna’s opinion, the appellant’s delusions “have contaminated his understanding of how the victim actually died.” There had been a previous assault in November 2003 when he attacked his uncle. In that case too, the appellant had given an account of his behaviour which was completely at odds with the account given by people at the scene, Dr McKenna said.
31.
In his report of 19 March 2008, Dr Ventress also expressed the view that, “on balance, the appellant would not have been fit to plead at the time of his trial. He had a delusional fear that he might be executed which would have had at least some preoccupying or distracting effect on him.” Dr Ventress also recorded the appellant’s statement that, during the trial: “I was so embarrassed and ashamed of how my life had turned out.”
32.
Dr Ventress believed that the appellant was masking or concealing his symptoms from the professionals. The appellant believed that people were talking about him. Dr Ventress said in oral evidence:
“My view is that where somebody feels that the integrity of their own mind or thinking has been breached and that the thoughts are available to others, it adversely affects their capacity to take part in a trial because I think it is likely that they would monitor the things that they were thinking, feeling that they might be available to the jury, that they might be available to the prosecution and to others. It is a fundamental breach of a person's integrity . . .”
The appellant told Dr Ventress that, when preparing for the plea and directions hearing, he was setting up a game plan in his mind and “as part of his game plan considered how many spirits the members of the court had in their minds.” The appellant believed that the court had a power to execute him and that “probably would affect whether or not he could enter a plea.” He might also have been influenced by his belief that the court and the jury were under the influence of Satan.
33.
In his oral evidence, Dr Ventress recalled further statements noted in his report:
“He said that at the time he interpreted this as meaning God was listening and paying attention. He recalled the proceedings and said that the judge had been nice and had not raised his voice at Mr Moyle. He said that he had not had specific concerns about individuals in the jury but went on ‘I still believed Satan had all the court and jury under his influence. He'd set me up by sticking the boot in. I thought they were possessed’.”
34.
Dr Ventress concluded, in cross-examination, with the opinion:
“I think he would have had quite a marked difficulty in following what would have been a very involved process in the context, as I have mentioned, of a very stressful experience for somebody who is already suffering from a severe mental illness.”
35.
We have also considered the report of Professor Grubin, dated 19 July 2008, who was unable to attend to give evidence. Professor Grubin was not asked to express an opinion as to the appellant’s fitness to plead at the time of trial. He has, however, expressed an opinion as to current fitness to plead in a situation in which the state of the appellant’s health has not changed significantly since the trial. Professor Grubin considered alternative scenarios. With respect to fitness to plead to a defence of diminished responsibility, Professor Grubin stated:
“If the matter came to trial, his understanding of the evidence and his comprehension of court proceedings would almost certainly be sufficient given the issue to be determined.”
Given a contest in relation to the killing itself, Professor Grubin stated:
“Again, I would not foresee problems in respect of his being able to understand the evidence or comprehending court proceedings if the matter at hand is his mental state at the time of the incident.”
36.
As to diminished responsibility, Professor Grubin was firmly of the opinion that, at the time of the killing, the appellant’s mental state: “will have been such that his ability to control his physical acts in accordance with rational judgment will have been substantially impaired, consistent with a defence of manslaughter on the grounds of diminished responsibility.”
Fitness to Plead
37.
It does not follow, and Lord Carlile does not suggest, that a person whose case comes within
section 2
of the
Homicide Act 1957
by reason of diminished responsibility is thereby unfit to plead. Nor can there be a proposition of law that a person suffering from delusions is thereby necessarily unfit to plead. Lord Carlile submits that the court should accept the evidence of three consultant forensic psychiatrists each of whom formed the view, from their own standpoint, that the appellant was unfit to plead. He submits that the appellant’s approach to the trial was so coloured by delusions that he was unfit to plead.
38.
We are unable to accede to that submission. The analysis must start with the fundamental principle that a person must be tried for and convicted of an offence, according to law, before a custodial order is made. That is fundamental, both in the public interest and in the interests of defendants, to the rule of law. While the law may make provision for custodial orders where defendants are unable to avail themselves of that fundamental right, the circumstances must be circumscribed in the manner prescribed in the authorities already considered. Each case, of course, depends on its own facts but delusions as to the court’s powers of sentence, or as to the objectivity of the court, or as to the evil influences which are thought to be present in the proceedings, do not necessarily require a finding that a person is unable to give instructions and to understand the proceedings.
39.
In concluding that the appellant was, in November 2004, fit to plead, the court has regard to the following factors, not set out in any order of importance:
(a)
The appellant was represented at trial by leading and junior counsel and a solicitor. Notwithstanding the evidence available from Dr O’Hare, they found no reason to query, or investigate further, the appellant’s fitness to plead. The trial was conducted by a judge experienced in criminal cases, who allowed it to proceed. Given the appellant’s instructions, the plea and the issues raised were entirely appropriate.
(b)
The appellant gave evidence at his trial and did so in a way which does not create doubts about his ability to understand questions put to him and to give the answers he saw fit to give. The trial involved a consideration of the events on the evening of 6 April 2004 and the appellant’s part in them. There is no indication that he failed to understand the evidence given or to respond to it with his own account, albeit an account which the jury disbelieved.
(c)
There is no reason to doubt that the appellant understood that the proceedings were serious proceedings, that he was being tried for a serious offence and that the aim of the trial was to determine whether he was guilty of wrongdoing.
(d)
The appellant’s evidence did demonstrate a tactical awareness difficult to reconcile with unfitness to plead as understood in the authorities. For example, he gave evidence about the timing of his punching the victim which was inconsistent with an account given to the police. He gave a reason for having told the police what in evidence he claimed to be an untruth.
(e)
The medical witnesses acknowledged the possibility of guile by the appellant in his approach to the case. Their main concern was that the appellant’s delusions were such as to impede his communication with his legal advisers and his understanding of proceedings.
(f)
The appellant’s embarrassment at his predicament and his inability to accept that his conduct was the cause of death were reactions not uncommon in those charged with serious crime and certainly not supportive of unfitness to plead.
(g)
Clearly, beliefs, one hopes always delusional, that the court is biased cannot extinguish a person’s right to be tried or the public’s right to have that person tried. A false belief about the punishment liable to be inflicted does not impair the defendant’s ability to be tried.
(h)
Even if, at times during the trial, the appellant was not acting in his own best interests, in the evidence and instructions he gave, that does not, in itself, create, or contribute, to a finding of unfitness to plead.
(i)
The appellant’s condition has not changed substantially since 2004. His present legal advisers have sought specific instructions from him and appear to have had no difficulty in obtaining them.
40.
We do not accept that, having regard to the points already considered, the appellant’s medical condition so impaired his ability to communicate with his legal advisers or understand proceedings that he was unfit to plead. We respect and attach weight to the opinion of the doctors, three of whom, though not Professor Grubin, have expressed the opinion that the appellant was unfit to plead. The appellant had serious health problems which affected his attitude to other people and his behaviour generally. They could lead to his having been distracted during the trial. However, analysis of his conduct at the time of the trial does not, read with the medical evidence, demonstrate that he was unfit to plead, as defined in law. He was able to instruct his lawyers and to understand proceedings and give evidence, notwithstanding his delusions. Our conclusion is that the appellant was fit to plead. The appeal on that ground is dismissed.
Diminished Responsibility
41.
The defence of diminished responsibility was not run at trial. The evidence before the court, that of Dr O’Hare, was that the appellant’s responsibility for his actions was, to some extent, impaired by illness but that the impairment was not “substantial”. No further report was obtained, notwithstanding Dr O’Hare’s earlier recommendation, the appellant having declined to be examined. Clear evidence is now available that, at the time of trial, the appellant, having had experience of hospital, did not want to be made subject to a hospital order, the possibility of which would have been raised had the defence been successful.
42.
In such circumstances, the general principle to be applied in this court is that stated by Lord Taylor of Gosforth, CJ, in
Ahluwalia
[1993] 96 Cr App R 133
:
“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 [diminished responsibility] to be raised for the first time here if the option had been exercised at 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. Nothing could be further from the truth.”
Applying that principle, the court declined to permit evidence of diminished responsibility to be adduced on appeal in
Latus
[2006] EWCA Crim 3187
.
43.
In
Neaven
[2006] EWCA Crim 955
, the court upheld the paramount and fundamental importance of the principles in favour of one trial but accepted that there may be cases, where, the evidence of mental illness and substantial impairment being clear, it may be in the interests of justice to admit it. “This is especially so if the potential vice of tactical decisions is met by undisputed evidence that such decisions were affected by the defendant's illness itself” (Rix LJ at paragraph 41).
44.
Having set out the medical evidence in some detail, we can deal with this issue briefly. There is now strong medical evidence, which we accept, that the appellant was, at the time he attacked Mr Brown, suffering from such abnormality of mind as substantially impaired his mental responsibility for his acts in doing the killing. All four doctors have expressly stated that the criteria in
section 2
of
the 1957 Act
were satisfied. They also acknowledge that the appellant declined to cooperate with doctors at the time of trial, Dr McKenna, for example, stating that: “there is very strong evidence that in general, Mr Moyle has been reluctant to disclose the nature and depth of active symptomatology”. He has wished “to avoid the presumed personal consequences of disclosure (particularly being returned to hospital).” The lack of co-operation may have affected the pre-trial opinion of Dr O’Hare who found impairment, but not substantial impairment, on the information available to him.
45.
As in the case of
Neaven
, the appellant’s decisions at the time of trial were affected by the illness itself; the sense of attack on his personal integrity leading to an unwillingness to disclose the extent of his health problems and the fear of being returned to hospital. There can be no suggestion that the appellant was holding back on a defence of diminished responsibility for tactical reasons connected with his trial.
46.
For the prosecution, Mr McDermott QC accepts, and indeed asserts, that analysis. The court quashes the conviction for murder and substitutes a conviction for manslaughter on the ground of diminished responsibility. The appropriate order, as Lord Carlile readily accepts, is a hospital order under
section 37
of
the 1983 Act
combined with a restriction order, without limit of time, under section 41. Dr Abdur has confirmed that a bed remains available at Guild Lodge where the appellant is currently an inpatient. The appeal is allowed to that extent. | ```yaml
citation: '[2008] EWCA Crim 3059'
date: '2008-12-18'
judges:
- LORD JUSTICE PILL
- MR JUSTICE SWEENEY
- 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}
======
| Neutral Citation Number:
[2014] EWCA Crim 1730
Case No:
201300932 C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday 8th July 2014
B e f o r e
:
LORD JUSTICE TREACY
MR JUSTICE GRIFFITH WILLIAMS
MR JUSTICE LEWIS
- - - - - - - - - - - - - - - -
R E G I N A
v
STEVEN (AKA STEVEN EDDIE) MOSES (AKA OLIVER)
- - - - - - - - - - - - - - - -
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)
- - - - - - - - - - - - - - - -
Miss R Martin
appeared on behalf of the
Applicant
- - - - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE GRIFFITH WILLIAMS: On 18th January 2013 in the Crown Court at Newcastle-upon-Tyne, the applicant was convicted of the rape of "D", a male child under the age of 13 (count 1), the sexual assault of D, a male child under 13 (count 2) and causing or inciting D, a child under 13, to engage in sexual activity (count 3). On 28th February 2013 he was sentenced by the trial judge, the Recorder of Newcastle-upon-Tyne, to concurrent sentences of 15 years, two years and six months respectively, a total sentence of 15 years' imprisonment. The Recorder made other orders all consequential upon the convictions, none of which are material for present purposes.
2.
The applicant renews his application for an extension of time in which to appeal conviction and sentence following refusal by the single judge. In a ground of appeal of his own making following the refusal of permission by the single judge, he seeks to adduce fresh evidence.
3.
The
Sexual Offences (Amendment) Act 1992
applies to this appeal so that nothing is to be reported that might reveal D's identity.
4.
D was born in July 2006. He lived with his mother and older brother, "K". He suffered from a speech impediment, had difficulty understanding spoken language and his mental ability was mildly delayed for his age (by more than one year). Nevertheless, he was described at the age of three as a happy and active child.
5.
In July 2010, when he was four years old, the applicant formed a relationship with his mother and lived at their address for approximately two months before he was arrested on 13th August 2010 in respect of unrelated matters and remanded in custody.
6.
The evidence was that from mid-July 2010 it was noted that D's behaviour started to alter. He often became angry or upset and exhibited sexualised behaviour, particularly when at his nursery. He and his brother went to live with their natural father during 2011, and from May 2012 onwards his step-mother "M" also lived with them.
7.
In May 2012 D told his step-mother that he had no friends because he was "naughty and dirty". He explained that "Steve done naughty things to mammy" and that he, D, had done what Steve had done. In June he informed her "Steve used to buy me big presents if I did things to him". In due course the police and social services were informed and D was interviewed on 13th July 2012.
8.
D explained that he was sexually abused by the applicant when he was living at their address in 2010. On a number of occasions he had removed his trousers and exposed his backside and his penis to the child. He recalled an occasion when he was sitting in the lounge watching television and the applicant forced his penis into his, D's, mouth. He continued moving his penis about and only stopped when what D thought was "wee" came out (count 1). He described the applicant coming to his room when he was sleeping, pulling down his pyjama bottoms and playing with his penis (count 2). The applicant would also put his hand up D's mother's skirt whilst D was watching and offered to buy D a present if he did the same and touched his mother's knickers (count 3).
9.
Following his arrest on 13th August 2012 on suspicion of raping a child, the applicant made no reply. In interview he denied the allegations and suggested that the complainant must have been told what to say by someone else, possibly his natural father. He also suggested the nursery staff had lied about him exhibiting inappropriate behaviour in public.
10.
The prosecution case was that D had given a true and accurate account: he had been sexually abused by the applicant during the period when the applicant was living at their address. The Crown relied upon D's account in his ABE interview, on evidence from his step-mother and evidence from staff from D's nursery who described the applicant as behaving inappropriately in public, including fondling D's mother's breasts and putting his hand up her skirt and into her pants.
11.
The defence case was that D's account was untrue. He denied ever touching the child in a sexual manner as alleged or at all. He denied that he had exhibited sexual behaviour in front of D or encouraged him to behave in any such way. He gave evidence confirming that he had met D's mother in June/July 2010 and slept at her address two or three nights a week. He said that he had some contact with D, but not much. He was never alone with him at the beginning and never engaged in sexual behaviour in front of D or his brother, or in front of the nursery staff. He denied buying the children gifts, apart from a birthday present for his sixth birthday and bars of chocolate when they went shopping. He said that he never told D to behave in a sexual way towards his mother, he never touched or rubbed his penis, he never placed his own penis in D's mouth and he never exposed himself to D as alleged. He said that he had had limited physical contact with D and denied blowing raspberries on his tummy, as alleged by nursery staff.
12.
The issue for the jury was a straightforward factual one: were they sure that the account given by D was true and accurate?
13.
The grounds of appeal against conviction drafted by trial counsel have been adopted by Miss Martin, who has appeared for the applicant in this court. We should say that we are grateful to her for her well-focused submissions which have been made with commendable clarity and brevity.
14.
The grounds of appeal are, first, that the ABE interview should have been excluded pursuant to the provisions of
section 78 of the Police and Criminal Evidence Act 1984
; secondly, that there was no evidence to support a conviction on count 2; thirdly, that the convictions are unsafe because D, who had a speech impediment, had a mental age of five years at the time of trial when his actual age was six years, and was describing events which had occurred two years earlier in his short life; fourthly, that D, despite being counselled in private by the intermediary and the trial judge, refused to answer defence counsel's questions in cross-examination and so answered defence counsel's questions which had been provided in writing to the judge and had been asked by the judge.
15.
Miss Martin's final submission was that while, with the exception of the ground of appeal relating to count 2, the individual grounds may not render any of the convictions unsafe, their cumulative effect supports the conclusion that the applicant did not have a fair trial and so his convictions should be quashed.
16.
The complaints about the ABE interview are that there was no evidence of the competency of a child in D's position who was being asked questions about events said to have occurred two years earlier in his short life; there was no intermediary present during the interview. D was asked leading questions and prompted by the interviewing officer by questions which suggested the applicant had done wrong; D was told he had said something else to a police officer to whom he had spoken before in a direct attempt to persuade him to change his account. It was also submitted that there was unfairness because D was being cuddled and reassured throughout the interview by his step-mother.
17.
We observe that the issue of D's competence was not raised until the first day of the trial, and then without prior notice. Section 53(1), (2) and (3) of the
Youth Justice and Criminal Evidence Act 1999
provides:
"(1) At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.
(2) Subsection (1) has effect subject to subsections (3) and (4).
(3) A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to -
(a) understand questions put to him as a witness, and
(b) give answers to them which can be understood."
18.
As the issue had not been raised, the court was not required to determine D's competence in accordance with the provisions of section 54 of the Act, but we observe there was in fact no evidence that D could not understand and answer questions. Indeed, the intermediary instructed for the trial in the Crown Court in her report had stated:
"Despite his age, delayed understanding of spoken language and his speech difficulties [D] has the ability to give evidence in court and would benefit from the use of a registered intermediary to maximise the completeness, coherence and accuracy of the evidence given."
It is clear that her view was that D was a competent witness.
19.
The criticisms of the conduct of the ABE interview were for the most part, if not wholly, accepted. Miss Martin accepted that pursuant to the provisions of
section 78 of the Police and Criminal Evidence Act 1984
, the interview should not have been admitted because of those failures to comply with the code "Achieving Best Evidence". Her submission was that the admitted breaches were very significant and could only be addressed by the exclusion of the interview.
20.
In his ruling on the application to exclude the interview, the learned judge said:
"It is apparent that prior to the interview, he told others about the alleged acts by the defendant; his comments were noted and reported to the Police and the defence have been supplied with those notes. It is right that it is not precisely known what has been said by and to [D] over the interval between the alleged acts and the recorded interview, but there is a good deal of detail from the notes and nursery, school and local authority records, which have all been disclosed to the defence.
The defence have identified the various stages in the video recorded interview at which [D] was prompted or reminded that he had said things to another officer. The details of the prompts are set out in the skeleton argument. I have considered them all. It is right to observe that the questioning was, at times, a little clumsy and there were the prompts identified, but at no stage was [D] obviously led into giving any detail and such faults as there were can properly be the subject of argument and legal direction to the jury: in other words, the complaints go to the weight of the evidence, something to be determined by the jury. With hindsight, it is clear that there should have been an intermediary present during the interview and a series of breaks: it is quite apparent that [D]'s attention span, unsurprisingly for a 6 yo boy in his circumstances, made breaks desirable. However, he was able to address all questions in an apparently competent and coherent manner. It is also right, as has been submitted, that there is no evidence as to [D]'s ability, aged six, to remember events almost two years earlier. However, again, this is a matter for the jury to consider in the context of all the evidence and their life experiences.
I have considered all the points made by the defence. I am satisfied that the trial process, by questioning, comment and submission by Counsel and by direction by me, can and should properly address the criticism raised. The circumstances of and means by which [D]'s interview was obtained was not inherently unfair and none of the complaints, either individually or in combination are of such a nature or degree that the admission of the evidence of the interview would have such an adverse effect on the fairness of the trial that it should not be admitted."
21.
In our judgment, there can be no criticism of the learned judge's approach to that submission. While he did not refer to it, his reasoning is amply supported by the observations of this court in
K
[2006] 2 Cr App R 10
at paragraphs 23 to 26. We observe that later, in what we consider to be a scrupulously fair summing-up, the Recorder drew the jury's attention to all these criticisms of the interview.
22.
Of the other grounds of appeal, no objection was taken at trial to the course followed by the Recorder when D refused to answer questions in cross-examination. That course was, in our judgment, both sensible and pragmatic, and the jury were in due course directed as to their approach to this part of the evidence.
23.
The course taken by the learned Recorder reflected the views of this court in
Cameron
[2001] EWCA Crim 562
at paragraphs 19 to 23. We repeat that the questions asked were the questions drafted by defence counsel and were not questions of the judge's choosing. What matters in the judgment of this court is not who asked the question, but D's answers to them.
24.
The submission of no case on count 2 turned on answers of D when he was describing the occasion when the applicant played with his penis when he was in bed. Miss Martin accepted that the interviewing officer clearly misunderstood what D was saying. The evidence was helpfully summarised in the Recorder's Ruling:
"The introduction to the passage in question began with the question, 'Has Steve ever seen your willy?, and then [D] said, yes, when he was in the living room, and then said, 'I mean, when - when I was in bed'. And he went on to explain, page 27, 'He was sneaking up, and him ...' - he used the word 'Him' when he meant 'He' - '... and him pulled my pants down'. And the passage goes on, 'Was [K] there?' Answer: 'Mm, but he was asleep'. Police Officer: 'He was asleep? So was it night-time?' 'Erm yeah'. Police Officer: 'And had you been asleep and woke up, or had you just not gone to sleep? And then [D] replied, 10:06:16, 'Erm, I just went ...', and then he demonstrated in the interview, closing his eyes. And he said, 'I just went ...' and closed his eyes, '... a few ...' And then the Police Officer, with nothing more, said this. 'So you were asleep. But did you wake up when Steve sneaked up ...' [D] said, 'No', '... and pulled your pants down?' 'No'. 'You didn't wake up?' 'No'. 'So how do you know what happened, then?' 'Cause I would feel it'."
25.
In his written grounds, Mr Callan submitted that on that evidence D was or may have been asleep and so may have been dreaming what had happened, and so there was no evidence of the alleged sexual assault and the count should have been withdrawn from the jury under the second limb of
Galbraith
[1981] 73 Cr App R 124
.
26.
Miss Martin, who adopted that submission, argued that the learned judge in fact substituted his own interpretation of D's evidence. We cannot accept that, and that is clear from the later part of the learned judge's Ruling:
"Now, the problem in relation to this whole passage is that at no stage does [D] ever say that he was actually asleep. It is the assumption of the interviewing Police Officer that he did fall asleep, and she was just concerned as to - that he had fallen asleep, whether he had woken up. But what [D] then says and goes on to say in the remainder of the passage is entirely consistent with a child who is in bed, with his eyes closed, but not asleep, and is describing events that take place and that he can feel, with his eyes closed. But he does not actually look and see who it is, what he is doing, what is happening, or what he says is happening to him, which consisted of playing with his willy, rubbing his willy with his hand, and he described, demonstrated a backwards and forwards or side to side-type motion with his hand when he described that. And that it was - he knew it was Steve, because he said,'I know what Steve feel like', and it was not [K] or his Mum, because they would not do it. And then there came a point when he, the person, who he says was Steve, talked once and said, 'Rock-A-Bye Baby'. And he said that at a time that he was playing with his, [D]'s willy.
All this leads me to the conclusion that it is perfectly open to a Jury to conclude that he was not asleep at the time this event occurred."
27.
In the judgment of this court, that was a correct summary of the evidential position. It was for the jury to decide what had happened.
28.
The single judge, in his observations when he refused permission, concluded with these words:
"... I find no substance in any of your Grounds of Appeal. Although [D] was very young, and the normal trial process had to be modified in a number of ways, the judge took great care to ensure that your trial was fair. I can find no ground on which it could be argued that any of your convictions is unsafe."
29.
With those observations, this court respectfully agrees, and we adopt them.
30.
The additional ground of appeal of the applicant's own making is based on an undated signed witness statement of D's mother, who states that D did not want to go to his natural father and got on well with the applicant, who was loving and caring to both D and his elder brother, "K". She states:
"I had no concerns with Steven being around my children as he is warm and friendly and caring to be around.
I can't tell you enough how much both myself and my children loved having him around but it's the truth. He was a breath of fresh air, he taught [K] to have confidence and not to be scared to ask if he wasn't sure on anything. He was what we all needed, we did things together as a family, played games went out even homework was done as a family."
31.
There is extremely limited support for that assessment of the applicant in the evidence of the nursery school manager, who described the applicant as cuddling and kissing D and blowing raspberries on his tummy. But that witness also described the applicant and D's mother behaving in a sexually inappropriate way in public (see above).
32.
We have concluded the evidence is not capable of belief but, more importantly, there is no explanation, reasonable or otherwise, for the failure to adduce that evidence at trial. That application would accordingly be refused if we were minded to allow the application for an extension of time, but we are not persuaded there are any arguable grounds to challenge the safety of the conviction.
33.
We accordingly refuse the application for an extension of time.
34.
We consider the application for leave to appeal against sentence. The submission is that the sentence was manifestly excessive.
35.
If we may say so, Miss Martin made her submission with understandable hesitation, recognising as she does that the starting point of 13 years applied to this offending because of D's age and the abuse of trust. We would add that there are additional aggravating factors. They are D's extreme youth and what the sentencing judge referred to as an element of grooming. Additionally, the sentence had to reflect the applicant's overall criminality and culpability. While he had no previous convictions of sexual offending, he had a number of previous convictions. We are not persuaded there are any arguable grounds that the sentences were manifestly excessive. | ```yaml
citation: '[2014] EWCA Crim 1730'
date: '2014-07-08'
judges:
- LORD JUSTICE TREACY
- MR JUSTICE GRIFFITH WILLIAMS
- MR JUSTICE LEWIS
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