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5a2b3eae42bf46642493b36e33944bbbd5db8fb727909727c2a1914a0aa472e8

[2015] EWCA Crim 437

EWCA_Crim_437

2015-02-24

crown_court

Neutral Citation Number: [2015] EWCA Crim 437 Case No: 201404490 A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 24 February 2015 B e f o r e : LORD JUSTICE BURNETT MR JUSTICE GILBART HIS HONOUR JUDGE GRIFFITH-JONES (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - R E G I N A v KADELE EMMANUEL CAREW - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave Inter

Neutral Citation Number: [2015] EWCA Crim 437 Case No: 201404490 A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 24 February 2015 B e f o r e : LORD JUSTICE BURNETT MR JUSTICE GILBART HIS HONOUR JUDGE GRIFFITH-JONES (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - R E G I N A v KADELE EMMANUEL CAREW - - - - - - - - - - - - - - - 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 Stanilas (Solicitor Advocate) appeared on behalf of the Applicant - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE GILBART: This applicant was charged on an indictment containing two counts: the first was an allegation of robbery, contrary to section 8(1) of Theft Act 1968, and the second was an allegation of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861. 2. On 21 March 2014, in the Crown Court at Inner London, the applicant pleaded guilty on re-arraignment after the jury had been sworn and after the complainant had given evidence. On 29 April 2014, he was sentenced as follows: on count 2 (wounding with intent) he was sentenced to 9 years' detention in a young offender institution; on count 1 (robbery) he was sentenced to 8 years' detention concurrent and was ordered to pay a victim surcharge order. 3. He had been jointly charged and tried with a man called Jordan Kanon. On 21 March he too pleaded guilty on re-arraignment after the jury had been sworn on count 1 (robbery) and was sentenced to 4 years' imprisonment. As we shall come to, this court has reduced his sentence to one of 27 months' imprisonment. 4. This applicant renews his application for leave to appeal against sentence after refusal by the single judge. The facts are as follows. The complainant was with a friend in Leicester Square in London in the early hours of 25 October 2013 when they got talking to a group of five people. The applicant and Kanon were part of that group. The complainant and his friend were invited to a party in Brixton and agreed to go. They all took a bus to Brixton. Once in Brixton they started walking to the party when the applicant and Kanon said to the complainant, "Come with us we're gonna skin up". The complainant followed them down an alleyway. Kanon stood behind the complainant and the applicant stood in front of him and demanded his mobile phone. The complainant refused to hand it over. Kanon then grabbed the complainant from behind and pulled him to the ground. The applicant smashed a bottle and stabbed the jagged end into the complainant's left hand. He and Kanon then made off with the complainant's mobile phone. The complainant had a 3-inch wide and 1-inch long laceration to the back of his left hand. The police were summoned. 5. In sentencing the learned judge pointed out that both had pleaded not guilty and maintained those pleas in front of the jury right up until the close of the prosecution's case. The court was not able, in those circumstances, to give them any credit by way of discount and the length of the custodial sentences. That was not to say that the court did not recognise that to plead guilty, even in the circumstances that they both did, did not take some courage. 6. Given the fact that there is only one point in this application, which relates to whether or not the discount should have been made, it is not necessary to read the rest of the sentencing remarks, save that the judge considered that the total sentence should be one of 9 years' detention in a young offender institution. There was no discount from that. There was a pre-sentence report, to which it is not necessary to make reference. 7. The application before us is based on one principal ground. The Court of Appeal had heard an appeal relating to the sentence of Kanon. This court recognised that credit for Kanon's guilty plea should have been given by the sentencing judge, although the guilty plea came late in the proceedings. The principle of the appropriate credit being given applies to the applicant as it does to Kanon and, says Mr Stanislas, the applicant should have received the 10% discount on his guilty plea in principle and therefore reducing the sentence. 8. No case is argued before us about the appropriate starting point of his sentence. We refer to the definitive guideline of the Sentencing Council published in 2007 dealing with discounts for guilty pleas. In section D at paragraph 4.1 it is stated that: "The level of reduction should be a proportion of the total sentence imposed, with the proportion calculated by reference to the circumstances in which the guilty plea was indicated, in particular the stage in the proceedings." Reference is made in the guideline to section 144(2) of the Criminal Justice Act 2003. There is reference to the sliding scale which is reduced to a recommended one tenth for, in its words, a guilty plea entered at the "door of the court" or after the trial has begun. Section 5.1 to 5.9 set out reasons which may be given for withholding a reduction. None apply in this case. 9. The learned judge was required to give reasons if he chose to depart from the guideline. The reason given was that the change of plea came too late. We understand that in this court in the Kanon appeal the Aikens LJ said this: "Should the judge have given credit for the very late guilty plea? We think that he should have done so, for the very reason that the judge identified at least. It takes some courage to plead guilty at a late stage and there should be encouragement to all offenders to recognise their offending and to own up to it. That, as [counsel] said in his submissions this morning, also avoids any miscarriage of justice. This should be encouraged by giving credit for a guilty plea even if that is entered at the eleventh hour or even later. In our judgment there should have been a 10% credit." 10. This court respectfully agrees. We therefore consider that in the application of a discount the sentence on count 2 of 9 years should be reduced to 8 years, 1 month's detention in a young offender institution, and on count 1, 7 years, 2 months to run concurrently. Leave is granted. The appeal is allowed to that extent and a representation order is granted.

2015_02_24-3554.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/437/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/437

f6a197ab43e27b5c04ae9ebcd83b63216ad408065966ce6208a9fc5995e91cbd

[2011] EWCA Crim 98

EWCA_Crim_98

2011-02-04

crown_court

Neutral Citation Number: [2011] EWCA Crim 98 Case Nos: 2010/1562/A9 ; 2010/1738/A9; 2010/3807/A9; 2010;1736/A9; 2010/1766/A9 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT MANCHESTER His Honour Judge Hammond T20077443 Royal Courts of Justice Strand, London, WC2A 2LL Date: 04/02/2011 Before : LORD JUSTICE LEVESON LORD JUSTICE PITCHFORD and HIS HONOUR JUDGE McKINNON Q.C. Recorder of Croydon sitting as an additional Judge of the Court of Appeal (C

Neutral Citation Number: [2011] EWCA Crim 98 Case Nos: 2010/1562/A9 ; 2010/1738/A9; 2010/3807/A9; 2010;1736/A9; 2010/1766/A9 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT MANCHESTER His Honour Judge Hammond T20077443 Royal Courts of Justice Strand, London, WC2A 2LL Date: 04/02/2011 Before : LORD JUSTICE LEVESON LORD JUSTICE PITCHFORD and HIS HONOUR JUDGE McKINNON Q.C. Recorder of Croydon sitting as an additional Judge of the Court of Appeal (Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : JAMES SHAW RIKKI SRAO JASBINDER SAMPLAY MAHMOOD KHAN CHARLES WALTER WRIGHT Appellants - and - THE CROWN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Roderick Carus Q.C. for the Applicant, James Shaw Mr Benjamin Nolan Q.C. for the Applicant, Rikki Srao Mr Balbir Singh for the Appellant, Jasbinder Samplay Mr Christopher Daw for the Appellant, Mahmood Khan Mr Simon Csoka for the Appellant, Charles Wright Mr Shane Collery for the Crown Hearing date : 21 January 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Leveson : 1. On 2 March 2010, in the Crown Court at Manchester, James Shaw, Rikki Srao, Jasbinder Samplay, Mahmood Khan and Charles Walter Wright fell to be sentenced along with Wesley Redshaw and Keith Pritchard for one or more offences mainly in connection with the importation or supply of cocaine. All had pleaded guilty at different times and, in some cases, upon a basis which had to be fitted in to the overall picture. 2. The sentences imposed by His Honour Judge Hammond were as follows. Shaw (who, on 29 February 2008, one month prior to the trial date, had pleaded guilty to count 1 conspiracy to import cocaine and count 4 conspiracy to supply cocaine and, on the trial date, 31 March 2008, to count 2 conspiracy to import cocaine) was sentenced respectively to 16 years 9 months, 7 years and 7 years imprisonment all to run concurrently and made subject to a travel restriction order for two years. Srao, who also on 29 February 2008 had pleaded guilty to count 1 and on 31 March to count 2 and count 3, conspiracy to import cocaine, was sentenced to 15 years, 5 years and 5 years imprisonment concurrent with a travel restriction order for 5 years. Samplay had also pleaded guilty to count 1 on 29 February 2008 was sentenced to 14 years imprisonment with a travel restriction order for 5 years. Khan (who had offered to plead guilty to count 4 alone on 13 January 2009, the plea only being accepted later) was sentenced to six years imprisonment with a two year travel restriction order. Finally, Wright who had pleaded guilty on 18 December 2009 to count 6, being concerned in the supply of cocaine, which was an alternative to count 4, was sentenced to five years imprisonment with a travel restriction order for two years. In each case, time spent on remand, which in two cases exceeded 900 days, was ordered to count towards the sentence. 3. Samplay appeals against sentence by leave of Coulson J. Khan and Wright appeal against sentence by leave of McKay J who refused leave to Shaw and Srao; they seek to renew their applications and counsel appear pro bono . We add that Redshaw and Pritchard were also charged in relation to count 4 to which they also pleaded guilty. Pritchard further admitted possession of a controlled drug namely cocaine with intent to supply. They were subsequently sentenced to 7 years and 6 years imprisonment respectively. No appeals have been mounted against these sentences. The Facts 4. Count 1 (which concerned Shaw, Srao and Samplay) was a conspiracy to import cocaine on a significant scale to be concealed in bulk cargo: it was described by the judge as “the major count”. It ran from July 2006 to July 2007 and was, in what was established by the evidence, a “dry” conspiracy, meaning no drugs were actually ever imported. Shaw was the driving force and lynch pin. He was responsible for arranging the transfer of the drugs on arrival in Europe. Srao was responsible for sourcing the cocaine in the Caribbean, arranging its concealment and transport to Europe. Samplay met Shaw in prison. He introduced Shaw to Srao and acted as the conduit between them. 5. In furtherance of the conspiracy, Srao spent in the region of £100,000. He created a front company and rented an industrial unit in Hyde. He made several trips to Trinidad and Tobago. On one visit he purchased two 40 foot sea containers. The plan was to load them with 80 barrels of liquid asphalt purchased from a company in Trinidad, supposedly for use in India. The consignment of cocaine would be placed in the barrels and the liquid asphalt would solidify on top of the cocaine. On arrival at their destination the barrels could be heated to liquefy the asphalt and enable the cocaine to be retrieved. Although the judge described it as “a very convenient and likely to be a successful way of importing substantial quantities of drugs into the United Kingdom, the asphalt company would not supply the asphalt without a legitimate purpose. 6. Shaw rented a business unit in Stockport for drug storage and breaking bulk. He invented a fictitious company as a front for his apparent involvement with asphalt, the landline for which was a telephone kiosk. Samplay, on the other hand, acted as the conduit between Shaw and Srao. There were a number of meetings and telephone contacts between the parties during the period of the conspiracy. On 8 October 2006 Shaw and Samplay discussed the figure of 100 kilos. Text messages indicated that Samplay was trying to obtain financial support for the conspiracy. 7. On 1 December 2006 a covert listening device was inserted into Shaw’s car. Discussions concerning concealment, telephone security and other matters consistent with importation were recorded. Shaw was heard organising transport. He put pressure on Srao to fulfil his role. In January 2007, Shaw and Srao discussed figures of 200 and 260 kilos. On 15 January 2007 Shaw told Srao the transport man had pulled out. They met later to discuss alternative mechanisms for importation (including in mushrooms in brine); the lesser figure of 75 kilos was mentioned: Shaw is recorded as saying: “If there’s 75, get the fuckers … over. Let’s get some fucking wages.” He also referred to drugs of 100 per cent purity. In April 2007 Shaw met Samplay. Their discussion indicated that they had given up on Srao. They discussed other contacts and other methods of importation. 8. The involvement of Srao effectively ended on 26 April 2007 when he was sentenced to nine months’ imprisonment for assault. Sampray’s involvement was identified in a basis of plea which was accepted by the Crown and was put in these terms: “(a) He did not plan, or in any way instigate this Conspiracy. (b) His essential role was to introduce two Conspirators, to one another and for a time act as a channel of communication. (c) Thereafter, they communicated directly. (d) He was not to finance the Conspiracy in any way. (e) He was not to be involved in any importation either in the UK or abroad. (f) He was not to be involved in the distribution of any drugs. (g) He was not aware of the quantities involved, when he joined the Conspiracy. (h) He only conspired with Shaw or Srao. (i) Clearly, [the appellant] received no benefit from this Conspiracy.” 9. Count 2 concerned Shaw and Shrao and was a further conspiracy to import cocaine, this time, by courier. On 8 December 2006 Shaw and Srao discussed importing one kilo of cocaine worth £28,000. The courier, Trevor John, was booked on a flight from Trinidad and Tobago and a hotel room booked in his name. A forged fax confirmation of the booking was later recovered from Srao’s computer. On 12 December 2006 Srao went to the terminal at Heathrow but despite a number of telephone calls to Trinidad and Tobago and an announcement asking Mr John to attend the information desk, Trevor John did not materialise. A week later Srao was again in the Heathrow area, contacting the same Trinidad and Tobago telephone number to try and set up another courier importation. 10. Count 3 was a yet further conspiracy to import cocaine: the means on this occasion was by post. On 12 January 2007 Srao told Shaw his contacts in Trinidad and Tobago tried to send drugs through DHL and Fedex but everything had been seized in Spain. However, he now had a “top dog” contact in DHL/TNT who could guarantee whatever he sent would get through. 11. On 29 March 2007 a man called Alfred sent a 76 gram package to an Imran Younis at a shop in Manchester. The shop had no dealings with Trinidad and Tobago. The owner did not know the addressee but his son, Navid, was Srao’s friend. A further parcel was delivered on 10 April 2007. There was significant telephone contact between Srao and the sender, Alfred, and between Srao and the recipient, Navid, in the lead up to that importation. 12. On 23 April 2007 Srao contacted Alfred. He then telephoned a TNT mobile number after which he sent Alfred text messages containing a TNT parcel reference, the name Ivan Dolly and his own UK address. Alfred sent a package weighing 1.26 kilograms to Ivan Dolly (no such person existed) at Srao’s address. However, the package was seized by US customs in Miami on 25 April 2007 and destroyed. It contained 113 grams of cocaine. 13. Count 4 concerned Shaw and Khan and related to a conspiracy to supply cocaine in May 2007. It was linked to Count 6 which was the accepted alternative plea by Wright to the offence of being concerned in the supply of cocaine. Shaw and Khan were middle men involved in the supply of a kilo of cocaine from a supplier contact of Khan’s to Redshaw who was introduced to them by Wright. 14. On 24 April 2007 Shaw discussed the position with Wright who suggested Redshaw as a low profile dealer with money whom they could involve. Khan was in contact with a man called “Rich” who was going to supply the cocaine. On 22 May 2007 Shaw told Khan he only wanted “Cadbury’s Easter eggs” meaning drugs sealed in their wrappers. 15. On 25 May 2007 Shaw and Redshaw drove south from Manchester. Shaw spoke to Redshaw about doing business and counter surveillance measures. Shaw negotiated a half ounce deal of cocaine for himself. Pritchard drove south from Manchester. He was to act as a courier for Redshaw. Khan liaised with “Rich” whose courier met Pritchard at a hand over point in Stoke and the kilo of cocaine was transferred. Pritchard drove to a location near Redshaw’s home where Shaw and Redshaw checked the drugs before depositing them at Redshaw’s home. Shaw then drove back to Stoke and gave Khan £14,000 which was Redshaw’s first payment on the £33,000 balance for the kilo of cocaine. Shaw then returned to Redshaw’s house to pick up the half ounce that he had negotiated for himself. 16. On 27 May 2007, Redshaw’s house was searched police officers. Most of the drugs had been moved on but the police recovered half an ounce of cocaine, various drug paraphernalia and half a kilo of cutting agent. Three days later, Shaw and Wright met to discuss the arrest: they were concerned about the money owed to Khan. They met Khan in Stoke. Wright said he would offer to stand surety for Redshaw on the basis that if he was out of prison it would make it easier for him to get the money needed to pay the drug supplier. 17. On 17 July 2007, the five appellants were arrested. In interview, Shaw, Samplay and Srao made no comment. Wright accepted that he knew Shaw but otherwise made no comment. Khan spoke about his legitimate business. He accepted that he knew Shaw and Wright but had no business dealings with them. He was a drug user but did not supply others. The Appellants 18. We now turn to deal with the antecedents and individual circumstances of the appellants. 19. James Shaw is now 68 years of age with convictions on some 15 occasions dating back over 40 years. Between the mid 1960s and the mid 1980s, his appearances were mainly for offences of burglary, dishonesty, some vehicle related offending and some violent offences for which he received differing sentences. Between 1984 and 1994, there was a gap but he then received a further custodial sentence for offences of dishonesty offences. Most significantly, his last previous appearance was in 1998 when, for the offence of being knowingly concerned in importing a controlled drug of Class A, he was sentenced to 15 years’ imprisonment. 20. The pre-sentence report explained that Shaw developed a cocaine habit while in custody. He admitted wanting to purchase large amounts of cocaine for himself and being privy to discussions with others about importing cocaine but denied being the leader in those discussions or that they were ever serious although he recognised that his lifestyle, drug misuse and associates within a criminal subculture led to his offending. Thinking skills deficits had been a factor in past offending. The risk of re-offending was medium to high. He lived with his partner and disabled son. He was upset at the impact of his behaviour on his family and there were concerns about his ability to cope with a lengthy custodial sentence. Letters from his wife, his GP concerning the health of his wife and disabled son and from the prison all spoke of another side to this appellant. 21. When passing sentence, not surprisingly, the judge underlined the 15 year sentence served for an identical offence. a lthough he recognised that the sentence he was about to impose would mean that Shaw had effectively reached the end of his criminal career, he correctly observed that a substantial sentence was necessary to deter others. He identified his starting point for count 1, after a trial, as 24 years which he reduced by 25 per cent to reflect his extremely early guilty plea, albeit the case against him was overwhelming. He allowed a further reduction to reflect the time that he had spent having been recalled to prison in breach of licence when, but for the delay, he could have been serving this sentence. In that context, he passed the total sentence of 16 years 9 months and made a travel restriction order for 2 years. 22. Rikki Shrao is now 30 years of age and had two previous occasions. In 2000, he was sentenced to a total of six years’ imprisonment for conspiracy to kidnap and having a firearm with intent to commit an indictable offence. In 2007 he was sentenced to nine months’ imprisonment for harassment and assault occasioning actual bodily harm (which meant that his loss of liberty resulted in his disengagement from the conspiracies). 23. In the pre-sentence report, it was reported that Srao accepted only limited responsibility. He said that he came into contact with others in the drug trade through his legitimate import/export business. He described Shaw as the main instigator who caused matters to escalate. He was financially motivated (as was the previous conspiracy to kidnap) but he described the plans to import large quantities of cocaine as exaggerated “pipe dreams” by all involved. As for his personal circumstances, Srao described a difficult upbringing and said that he was forced into an arranged marriage from which he was seeking a divorce. His parents disapproved of his current partner. The probation officer expressed concern that a lengthy prison sentence had not deterred Srao from further offending: he had established criminal links and lacked insight. 24. The judge concluded that Srao was a serious player with a serious previous conviction albeit unrelated to drugs. He played an active role in the main conspiracy and was also involved in postal and courier importations. Taking into account the authorities, for the main conspiracy, his sentence would have been 21 years after a trial. There was strong evidence against him but his plea would attract a discount of more than 25 per cent but less than the 33 per cent for a guilty plea at the earliest opportunity: that led to a sentence of 15 years. There was no reason not to make a travel restriction order. 25. Turning to Jasbinder Samplay, who is now 43 years of age, he had appeared before the Courts on six previous occasions, the only relevant conviction being in 2003 when he was sentenced to six years’ imprisonment for three offences of possessing cocaine with intent to supply: it was during that sentence that he met Shaw and at the start of the conspiracy had only recently been released on licence. 26. To the probation officer, Samplay described himself as on the periphery to the conspiracy, introducing Shaw and Srao with “an idea that their business may not be legal”: no question of payment was discussed. He expressed guilt at letting his family down and was described as a passive man who appeared to have been overwhelmed by his need to do something for his friends despite the negative consequences for his family. There were references that spoke of his exemplary conduct in prison and a letter from his 11 year old daughter only served to underline the impact of his criminality upon his family. 27. The judge pointed to Samplay’s previous convictions for drug offences and described his role as putting Shaw, who had a marketing network, in contact with Srao, who wanted to import massive quantities of cocaine. Further, he continued the conspiracy for a long time looking for other ways of importing substantial amounts. The judge concluded that the appropriate sentence after trial bearing in mind his role was 20 years which would be reduced by 30% to reflect his guilty plea, resulting in 14 years imprisonment. There would be a travel restriction order for five years from the date of his release. 28. Mahmood Khan was now aged 37. His two previous appearances before the court had both led to fines and the pre-sentence report noted that he had been drawn into illegal drug use which had escalated rapidly causing financial problems. The probation officer considered that he appeared to have been extremely naïve and trusting in his dealings with Shaw and lacked awareness of the consequences of his offending. As to his personal circumstances, he was self-employed with had three young children; he had not taken any drugs since his arrest in 2007. It was considered that he posed a low risk of harm to the public and, entirely unrealistically, the recommendation was for a high end community order. 29. The judge noted that Khan’s involvement related to participation in a conspiracy to supply 1 kilogram of cocaine and considered that his guilty plea in the face of strong evidence against him should attract a discount of 25%. Reducing the headline sentence to reflect his personal mitigation, the sentence would be eight years discounted to six years. He also ordered a travel restriction for two years. 30. Khan’s involvement was described as slightly more serious than that of Charles Wright (who admitted a substantive offence of being concerned in the supply of what was 1 kilogram of cocaine). He was 50 years of age and also had only twice appeared before the courts having been given a community order for driving offences which he later breached. To the probation officer who prepared the pre-sentence report, he said that he had pleaded guilty out of expediency but denied active involvement in the offence. He knew Shaw and other insalubrious characters through his family business interest in clubs and other areas. Not surprisingly, in the light of his denial it was difficult to assess his motivation but he denied any involvement in drug misuse although he had been receiving treatment for stress. He was concerned at the impact of a custodial sentence on his family and the future success of his diverse and extensive business interests. He was considered a low risk of re-offending and, again unrealistically, the report proposed a suspended sentence as an alternative to immediate custody. 31. The judge accepted that Wright pleaded guilty at the earliest available opportunity to his involvement in the supply of a kilo of cocaine. The guideline case indicated that the sentence ought to be ten years or more but given his considerable personal mitigation the starting point after a trial would have been eight years which the judge discounted to five years, also ordering a travel restriction for two years. Generic Grounds of Appeal 32. A number of the arguments advanced on appeal are common to more than one offender; others are specific to the individual. We first deal with the general arguments and will then apply the conclusions that we reach as we consider the specific cases of each applicant and appellant. 33. We deal first with the argument relating to count 1 (which concerned the conspiracy to import very substantial quantities of cocaine) to the effect that the judge undertook the sentencing exercise from too high a starting point. The first point made is that although the offence of conspiracy is always inchoate, in the sense that the agreement alone is sufficient for proof of guilt, unlike many other cases, this prosecution did not involve massive importations that had, in fact, taken place Furthermore, although the conspirators had spoken of substantial quantities and may even have taken steps to plan for the importation of cocaine in substantial quantity, the quantities referred to were “pie in the sky” or “wishful thinking” and did not represent the realistic ambitions of the conspiracy. Thus, the quoted figures should not be taken as the quantities truly involved. 34. As to the second point, Judge Hammond simply did not accept the proposition that the quantities referred to were no more than an exaggerated puff and it must be borne in mind that, at the time, Judge Hammond was one of the most experienced judges in the country trying this type of offence: he had been doing so for over 20 years. The judge referred to the need for arrangements to be set up, the assurance of a supply of drugs along with the network and customers in the UK. He spoke of the contemplation of “massive importation” and “serious steps undertaken in order to fulfil it”: in that regard, it is relevant to underline that over £100,000 had been expended in set up costs. He was entitled to reach that conclusion and the sentences fall to be considered against those intentions. 35. The starting point when considering the importation of drugs remains the guidelines set out in R v. Aramah (1982) 4 Cr App R (S) 407 as amended (see R v. Bilinski (1987) 9 Cr App R (S) 360, R v. Satvir Singh (1988) 10 Cr App Rep (S) 402, R v. Aranguren (1994) 99 Cr App R 347 and more, recently R v. Morris [2001] Crim App R 25). These authorities make it clear that importation of cocaine in the order of 5 kilograms should be visited by sentences of 14 years and upwards: it is thus no surprise that in R v Latif [1995] 1 Cr App R 270, 20 years imprisonment was upheld for a principal organiser of an importation of 20 kg of heroin. Where, as here, the conversations (accepted by the judge as real estimates of the aspirations of the conspiracy) were about 100-260 kgs (although latterly 75 kg was mentioned), the stakes could not have been higher. 36. As for the fact that no drugs were in fact imported, counsel placed reliance on R v, Hardy & O’Sullivan [2004] EWCA Crim 2906 . That case concerned a conspiracy to import up to 100 kgs of cocaine from Brazil but turned almost entirely on the evidence of an undercover police officer and does not appear to have progressed beyond the stage of conversation. It came to an end when the son of the principal offender (O’Sullivan) was killed in a motor accident: he then told the officer that he was not going to follow up the matter. Thus, not only did the conspiracy not come to fruition (and, because of the undercover officer, could not have done); it was voluntarily abandoned. Notwithstanding a prior conviction for supplying LSD (for which he received a 5 year sentence), 20 years imprisonment was reduced to 10 years. That case itself refers to Attorney General’s Reference Nos 90 and 91 of 1998 [2000] 1 Cr App R (S) 32 which concerned a conspiracy to supply drugs of class A and class B over a period of time in large quantities. Although some drugs had been delivered, the conspiracy did not come to fruition but there were references to 100 kgs and sums of money amounting to £250,000 and £300,000). Lord Bingham CJ observed that the conspiracy should attract 14 years after a trial: the difficulty with the case, however, is that although the conspiracy concerned both class B drugs such as cannabis and class A drugs (ecstasy and cocaine), the quantities of each (and in particular, the apportionment between class A and class B drugs) are not set out or defined in the judgment and it is trite to say that cannabis would attract a very different sentence to cocaine. 37. Neither of these cases is identical to the present where the conspiracy was solely concerned with cocaine and was advanced (albeit that the problems connected with acquisition of bitumen had to be overcome or importation resolved in some other way). Further, the idea of importing quantities of cocaine into this country had most certainly not been abandoned: the other conspiracies came into play. Having said that, it must, of course, be recognised that no cocaine actually entered this country pursuant to this conspiracy with the result that although the culpability of the offenders is exceptionally high, the starting point may not need to be as high as in those cases where substantial deliveries had, in fact, arrived in the UK. We repeat, however, that this very experienced judge had the feel of this case and a far deeper understanding of the facts than it is possible for this court to develop from the rather more limited material which has been put before us. He clearly took the view that the cocaine was in existence, and either was or could readily be acquired; he was also affected by the obvious sophistication of the planned operation. We are not prepared to disagree with his broad assessment of the gravity of the offences or, in particular, the significance of count 1. 38. Affecting the same three offenders, we must also deal with the argument based upon the consequences of the delay between arrest and final sentence: two years prior to sentence, each had pleaded guilty to the main conspiracy, count 1. It is thus argued that the rights enshrined in Article 6(1) of the ECHR to a fair and public hearing within a reasonable time were infringed. In his sentencing remarks, the Judge explained that it had been necessary twice to abort the trial of remaining defendants with substantial delays as those accused sought the services of preferred counsel. In relation to the argument that an the sentence should be adjusted to reflect the failure to comply with the Article 6 rights of those waiting to be sentenced, the judge said: “It is the need for that provision [the right to be represented by independent and competent counsel of choice, paid for, if necessary, by the state] that has led to the inevitable delays here. It is also a factor that any time spent on remand awaiting trial counts towards the sentence actually served under our legislation. The only additional hardship therefore … has been the anxiety of awaiting sentence over a period and not knowing how long it was to be, but knowing that a lengthy custodial sentence was inevitable. It is not appropriate, in my view, … to reduce the sentence to reflect that fact.” 39. In this court, it is submitted that the learned judge should have accepted this submission and reduced the sentence accordingly. Although no reference was made to authority, it is clear from this court’s decision in Attorney General’s Reference No 2 of 2001 ( [2002] 1 Cr App R 272 ), that it was the practice of the court to take account of failure to proceed with a case with due expedition when determining sentence and in Mills v. Lord Advocate [2002] UKPC D2 , [2004] 1 AC 441 , a delay of 12 months in bringing an appeal (albeit that the appellant was on bail) led to a reduction of 9 months to the sentence “to compensate him for the effects of the delay” was said to be “an appropriate and sufficient remedy”. Finally, in R v. Ashton [2002] EWCA Crim 2782 , a delay of four years between sentence and the determination of the appeal led t a reduction of 12 months from a sentence of 18 years: the appellant had changed solicitors twice but the real problem came about through delay in granting legal aid. Mantell LJ observed (at para. 83): “We regard this case as being quite exceptional and … it should not be thought that any delay in listing which may be due to circumstances or conditions outside the control of the court or the prosecution will necessarily lead to a similar result.” 40. None of the applicants or appellants asked the court to pass sentence earlier than the date upon which Judge Hammond embarked upon the exercise. In argument, this failure was explained on the basis that it was simply inconceivable that the judge would have sentenced any of those who had pleaded guilty until the trials had been concluded and this notwithstanding that the trials were adjourned on more than one occasion. We recognise the force in that argument but it can be taken too far. In this case, the three principal offenders had all pleaded guilty: those awaiting trial were lesser players and it may be that, in order to protect the Article 6 rights of offenders waiting to be sentenced, once it became apparent that a lapse of time of this order was likely to occur, the court should have proceeded to sentence irrespective of the preferable approach that points to the sentencing exercise being undertaken once in order that all the facts can be considered at the same time. 41. In our judgment, the approach of Judge Hammond paid too little attention to the inevitable anxiety that accompanies the uncertainty of awaiting sentence (which echoes the anxiety reflected in Mills and Ashton of those waiting for the disposal of their appeals). Although each case falls to be considered on its own merits, we conclude that a delay of two years for the trials of those to take place of those not alleged to be principal offenders gives rise to a valid argument in favour of the proposition that a reasonable time had elapsed and that the judge should have reduced the sentence (albeit slightly) to reflect the excessive delay. We shall reduce the sentence by 6 months to allow for that fact. In the context of this case, such a reduction on its own may be described as an inappropriate exercise of the power of this court: it reflects, however, the importance of adhering to convention rights and, in our judgment, not to make some small allowance is wrong in principle. 42. A further argument was presented in relation to Khan and Wright who had been granted bail with conditions because the custody time limits had elapsed. They do not seek an allowance under Article 6 (not least because it was their trials that had delayed the sentencing exercise) but they do seek an allowance for the restrictions on their liberty consequent upon the terms of their bail. Although not qualifying for an allowance consequent upon lengthy electronically monitored curfew (see s. 240A of the Criminal Justice Act inserted by s. 21 of the Criminal Justice and Immigration Act 2008), it was submitted that some allowance ought to be made to reflect those conditions. The judge took the view that they had been “at liberty and free to get on with their lives” and he declined to reduce any sentence because of the “minor restrictions of liberty involved in this case”: he was entitled to take that view and, in our judgment, was correct to do so. We do not interfere with that conclusion. 43. The final general ground of appeal concerned the imposition of travel restriction orders on each of those concerned in this prosecution. Thus, Srao and Samplay complain that a travel restriction order was made in each of their cases for 5 years, yet only for 2 years in relation to Shaw. Khan and Wright complain that any travel restriction order was made on the basis that their offences did not involve any element of importation or aspect of foreign involvement. 44. By s. 33 of the Criminal Justice and Police Act 2001, a travel restriction order may be imposed on an offender sentenced to a term of four years imprisonment or more for a drug trafficking offence (defined by s.34, subsection 1(a) of which includes offences under s. 4(3) of the Misuse of Drugs Act 1971 supplying controlled drugs or being concerned in the supply of controlled drugs, by section 1(d) importation offences and, by subsection 1(e), conspiracy to commit any one of those offences). The minimum duration of a travel restriction order is two years and, by s. 33(2) the court must always consider whether such an order should be made and must give reasons where it does not consider that order to be appropriate. Given the terms of the statute, it would not be sufficient simply to assert that the offences did not concern a foreign element. 45. It is clear from the decision of this court in R v. Mee [2004] 2 Cr App R (S) 434, followed in R v. Fuller [2006] 1 Cr App R (S) 52 that the order is designed to prevent or reduce the risk of offending after release from custody and is most likely to be appropriate in cases involving importation. The length of the order is that which is required to protect the public in the light of the assessment of risk of re-offending taking into account age, previous convictions, family contacts and employment considerations. The judge found no good reason for not imposing an order in each case: he was right to do so. In that regard, we underline that if the minimum period is for a period of four years or less, it is open to an offender to apply to revoke or suspend the order after a period of two years at which time the court must have regard to the offender’s character, his conduct since the making of the order and the offences of which he was convicted: suspension can be justified on compassionate grounds in exceptional circumstances. If the order is for a period between 4 and 10 years, 4 years must elapse before application can be made. We will consider the particular orders in the context of each offender. Individual Appeals 46. On behalf of James Shaw, Mr Carus Q.C. argued that although importations at the level involved in the case could attract sentences of the order passed on Shaw, this conspiracy never really got off the ground with the result that the sentence was far too high; he also submits that there was no reason for the discount for plea to be less than that given to Srao (who pleaded guilty at the same time). For the reasons that we have given, we do not accept that the broad assessment of the judge can be faulted and, although we recognise that Srao had a more significant role in setting the plans, any sentence passed on Shaw had to reflect the seriously aggravating feature that it was committed only relatively recently after his release from a substantial 15 year sentence for an identical offence. 47. In the circumstances, we believe that the judge was entitled to start at a sentence in the order of 24 years discounted for his plea and the delay in passing sentence. We see no reason, however, for differentiating substantially between the discount allowed to Shaw and that allowed to Srao (although whether either was truly entitled to a discount at the level decided by the judge is a slightly different point): neither does the judge explain this discrepancy. In all the circumstances, making the same allowance as did Judge Hammond for the time spent on recall while waiting sentence, the appropriate sentence on count 1 is 15 years imprisonment. The other sentences will remain unaltered as will the travel restriction order. 48. In relation to Rikki Srao, Mr Nolan Q.C. also argued that the starting point was too high on the basis that the idea of using bitumen as a vehicle in which to hide the importation of cocaine fizzled out leaving the conspiracy a heroic failure. That is not how the judge perceived the case and neither is it our assessment. Srao did all that he could to bring the conspiracy to fruition, had invested substantially in it and, in our judgment, would have continued to find a way to achieve the result that he sought. Neither do we accept that he was entitled to a higher discount than he received (if, as to which we make no further comment, he was entitled to as high a discount as he received. The only adjustment that we consider it appropriate to make is to reduce the sentence by six months to allow for the delay. 49. Mr Nolan also challenges the 5 year term of the travel restriction order and prays in aid the lesser term ordered in the case of Shaw and the fact that it will impact on his relationships with his family who reside in India. Although not a pre-requisite for the making of the order, the fact that Srao was so heavily involved in setting up this conspiracy abroad, a substantial order was inevitable. On the basis that his wish to travel to India may encourage him even after release to demonstrate that he has addressed his offending behaviour, we will reduce the travel restriction order to 4 years which could permit an application, if the basis for it can be established after 2 years. 50. Mr Balbir Singh argued that the sentence imposed on Samplay was “far too high” and, making appropriate allowance for his plea of guilty and the basis of that plea, submitted that the sentence was over twice that which was appropriate. Comparing the case to Hardy , he went on to argue that Samplay should have received a lower sentence than in there imposed. For the reasons which we have explained, we do not agree: this conspiracy was continuing and had not been abandoned: we have no doubt that every effort was being made to overcome the problems that had arisen. Further, we do not accept the way in which Mr Singh seeks to minimise Samplay’s involvement which was as a crucial link between two men who brought different skills to the conspiracy and, between them, had the experience and capacity to bring it to fruition. Furthermore, we do not accept that Samplay’s comparatively previous convictions for possession of cocaine with intent to supply (from which he had only just been released) are merely coincidental: as with Shaw, they demonstrate a determined offender unwilling to learn from previous lengthy imprisonment. 51. Whether the judge was correct to describe Samplay as a principal or whether he is better described as a vital link between Shaw and Srao may not substantially affect the sentence which it was appropriate for him to receive. What we are prepared to accept, however, is that in the light of his basis of plea, and the fact that he was not involved in the later offences, he should not have been considered in quite the same bracket as Shaw and Srao. In the circumstances, the starting point of 20 years was marginally too high. Reflecting this feature against the importance of his role and his prior convictions, we take the view that the appropriate starting point was in the order of 18 years from which 30% falls to be deducted to reflect the guilty plea along with a further 6 months consequent upon the delay. In the circumstances, we reduce his sentence of imprisonment to 12 years. 52. Mr Singh also challenged the travel restriction order arguing in writing that there was no basis for making such an order: as we have explained above, that submission misunderstands the legislation. His family also live in India (which he has not visited since 1997) but it is argued that he would like to go there once released. There were good reasons for reducing the term of the order in relation to Shaw; there is no good reason in relation to Samplay but we will take the same approach as taken in relation to Srao and reduce the term to 4 years. 53. We turn to Mahmood Khan and Charles Wright who fell to be sentenced for their involvement in offences which concerned a far smaller quantity of cocaine (namely 1 kilogram) than the conspiracy which Shaw, Srao and Samplay had admitted. There was an argument between Mr Daw on behalf of Khan and Mr Csoka on behalf of Wright as to who was entitled to greater credit for the timeliness of his guilty plea; in particular, it appears as if Judge Hammond allowed Wright 37.5% as opposed to 25% for Khan although, on the face of it, Khan had pleaded guilty a year earlier. On examination, however, it is accepted by the Crown that Wright had offered to plead guilty to the offence for which he later fell to be sentenced at a very much earlier stage but the offer had not then been accepted. As to the extent of the discount, given that the judge made it clear that he believed Khan’s involvement to be marginally more serious than that of Wright, yet both ended up with the same starting point of 8 years although the sentences differed by a year. It may be that the judge’s articulation of the starting point in Wright’s case was a slip of the tongue because there is no doubt that the ultimate sentence reflected his expressed view of comparative guilt. 54. In the light of the authorities, there is no doubt that the starting point for involvement (whether as a conspirator or one who is concerned) in the supply of 1 kilogram of cocaine is upwards of 10 years and we do not accept that either of these appellants can complain about their sentence, after allowance for the plea of guilty and other mitigating features: although we recognise the good reports that they have received which augur well for the future, we do not consider it appropriate to allow any further reduction from the sentence for this serious offending. Further, as to the comparative exercise, we are not prepared to undertake a mathematical calculation but, on the basis that the sentences reflected the view of the judge as to the comparative responsibilities of each, we are not prepared to interfere with them. As to the impact of the bail restrictions, we have concluded that the judge was right to ignore them. 55. The final appeal in both cases concerns the travel restriction order made for two years. Both Mr Daw and Mr Csoka argue that their offence was solely based in the UK; Mr Daw went so far as to suggest that there was no proper basis for making the order and that it was wrong in principle. They note that no such order was made in the case of Redshaw and Pritchard. For the reasons that we have given, we reject the argument that the order was wrong in principle; as to its justification, in our judgment it is highly material that their involvement in their respective offences was with or through Shaw who has demonstrated foreign links both with his present and past offending. In our judgment, there was no reason for not making the orders in both cases and both Khan and Wright received the minimum term. That the judge did not make an order in the case of Redshaw or Pritchard is beside the point. Suffice to say, these appeals are dismissed. Conclusion 56. In the circumstances, we grant Shaw and Srao leave to appeal. In respect of Shaw, we allow the appeal and reduce the sentence on count 1 from 16 years 9 months to 15 years imprisonment; his other sentences remain the same. In respect of Srao, we allow the appeal and reduce the sentence on count 1 from 15 years to 14½ years (reflecting only the delay); we also reduce the travel restriction order from 5 years to 4 years. In respect of Samplay, we allow the appeal and reduce the sentence on count 1 from 14 years to 12 years; we also reduce the travel restriction order from 5 years to 4 years. We dismiss the appeals of Khan and Wright. In each case, time served on remand will continue to count towards sentence.

2011_02_04-2626.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/98/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/98

da7d6a07926acebdbd7101d7b1f9af114b970d6442cb505e2ef877191b58cf20

[2019] EWCA Crim 557

EWCA_Crim_557

2019-04-02

crown_court

Neutral Citation Number: [2019] EWCA 557 (Crim) Case No: 201802252 B2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Date: 02/04/2019 Before : THE PRESIDENT OF THE QUEEN’S BENCH DIVISION (SIR BRIAN LEVESON) MRS JUSTICE SIMLER DBE and MRS JUSTICE YIP DBE - - - - - - - - - - - - - - - - - - - - - Between: REGINA - and - OZAN MELIN - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms A Power appeared on behalf of Appellant

Neutral Citation Number: [2019] EWCA 557 (Crim) Case No: 201802252 B2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Date: 02/04/2019 Before : THE PRESIDENT OF THE QUEEN’S BENCH DIVISION (SIR BRIAN LEVESON) MRS JUSTICE SIMLER DBE and MRS JUSTICE YIP DBE - - - - - - - - - - - - - - - - - - - - - Between: REGINA - and - OZAN MELIN - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms A Power appeared on behalf of Appellant Mr S Jones on behalf of the Respondent Hearing dates: 23 January 2019 - - - - - - - - - - - - - - - - - - - - - Approved Judgment I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic. ............................. MRS JUSTICE SIMLER DBE MRS JUSTICE SIMLER DBE Introduction 1. On 3 May 2018 at Bournemouth Crown Court, following a re- trial before His Honour Judge Forster QC and a jury, the Appellant was convicted on two counts of causing grievous bodily harm contrary to s.20 of the Offences against the Person Act 1861 , on two different female complainants (counts 1 and 3). He was acquitted by the jury of a similar allegation relating to a different woman (JS) on count 2. He was also acquitted on the direction of the Judge on three counts of dishonestly making a false representation. 2. The Appellant was sentenced to 4 years’ imprisonment on each count concurrently. 3. He appeals against conviction by leave of the Single Judge. 4. During the course of the hearing on 23 January 2019, it became increasingly apparent that reference to the transcripts of the evidence of the two complainants in respect of counts 1 and 3 (Marcelle King and Carol Kingscott) was necessary, but we had not been provided with them. We therefore adjourned consideration of this appeal until the relevant transcripts had been obtained. We made directions for the service of additional written submissions from the parties in light of that material and its effect on the conviction appeal. We also permitted consequential submissions on sentence. We have now been provided with and have considered the transcripts and the further submissions we have received from the parties. 5. In outline, the Crown’s case was that the Appellant, who is not a doctor or medically qualified, administered what purported to be Botox injections for cosmetic purposes to three women, each on two occasions. Both suffered really serious harm following the second injection. The Crown’s case was that the Appellant lied about his medical qualifications and training and that each woman only consented to the treatment because she believed the Appellant to be medically qualified. 6. The defence case was that, even if false statements as to medical qualification were made, each complainant agreed to treatment before any such statements or representations were made and, in any event, each individual complainant did not rely on anything that was said by the Appellant as a basis for embarking upon or continuing with the treatment. 7. The issue for the jury was accordingly, whether the Appellant told the relevant complainant that he was medically qualified before he injected the substance and whether the complainant relied on the statement and only consented to the procedure on the basis that the Appellant was medically qualified. 8. A submission of no case to answer was made on behalf of the Appellant at the close of the Crown’s case. There were two grounds. First it was argued that a deception as to qualification is insufficient to vitiate consent and does not, as a matter of law, amount to a deception as to identity. Since there was also no evidence of any deception as to the nature, purpose or quality of the act, consent could not have been vitiated. Secondly, it was argued that the evidence taken at its highest was not sufficient for a jury properly directed to convict in this case. The grounds for the submission, which was rejected by the Judge, are repeated in this Court on the Appellant’s behalf by Ms Alexia Power and the question on this appeal is whether or not the submission was well-founded and the Appellant’s convictions are therefore unsafe. 9. Before returning to the arguments advanced by Ms Power, we set out the evidence in relation to the two counts on which the Appellant was convicted in a little more detail. The evidence 10. The treatment for Marcelle King (count 1) was arranged by Suzanne Johnston, a beautician and hairdresser who advertised the availability of Botox treatments to be provided at her home. Suzanne Johnston gave evidence that the Appellant arrived at her home on 3 July 2013. She had not met him before. She spoke to him briefly and said: “ I think he said he was a cosmetic surgeon and trained in the United States ”. When Mrs King arrived, she had the treatment and paid. She attended for the second top up treatment on 22 July 2013 at Ms Johnston’s home. Ms Johnston was present and the Appellant administered the treatment. Ms Johnston gave evidence that she would not have allowed the Appellant to use her home address to administer the treatments if she had not understood him to be medically qualified. She was challenged in cross-examination about the way in which the arrangements were made and what was said. She maintained she was told the Appellant was a doctor. She said she did not hear that from Marcelle King. However she accepted, “ the best recollection I have is that the conversation about his qualification was with me and that that was afterwards .” 11. In her evidence in chief, Marcelle King said she made the appointment for a Botox treatment through a beauty salon in Poole on Facebook. She spoke to a person called Suzanne at the beauty salon by phone and was told that a nurse called Ozan Melin would administer the treatment. She had no contact with him. She attended the beauty salon as arranged with Suzanne, and during her first Botox treatment on 3 July the Appellant said he was a cosmetic surgeon trained in America. She explained this was said, “ Before he did the injections … He put the rubber gloves on and held the needle up and then told me that .” She said there was about half a minute between him saying that and “ the first injection going in ”. 12. Before she left the salon, she said the Appellant told her if the treatment did not work she could return after two weeks for a free top-up. She waited the two weeks indicated, and made contact with Suzanne to arrange the free top-up. This was arranged for 22 July and she returned to the salon. The Appellant administered the second treatment. She gave evidence about the adverse consequences of the second set of injections. 13. At the end of her evidence in chief Mrs King was asked, “Mr Jones: And the final question, would you have allowed any of these injections to have been administered if you had known that Ozan Melin was not medically qualified? Mrs King: Absolutely not” 14. In cross-examination, Mrs King confirmed: i) She made the appointment for the first treatment through an advertisement from a beautician, Suzanne Johnstone, which she saw on Facebook. ii) She knew that Suzanne was no longer working for a salon and that the treatment would be at Suzanne’s home. iii) She spoke only to Suzanne prior to the treatment. iv) She thought initially that it would be Suzanne Johnstone (not medically qualified) who would be doing the treatment. v) When Mrs King arrived at Ms Johnstone’s home she was told that the injections would be done by the Appellant, a nurse. He was not yet present at that time. vi) Mrs King was cross-examined about the timing of the representation said to have been made and the evidence she gave at the first trial. At the close of crossexamination she confirmed: “Mrs King: Well, I’m trying to remember, as I say, it was five years ago but I think the first time then he was introduced as a nurse and the second time he said he was a cosmetic surgeon. Ms Power: So the second time was when he said he was a doctor? Mrs King: Yes Ms Power: In your, on your evidence? Mrs King: Yes.” …. “Ms Power: And it was suggested to you he certainly didn’t say to you about those medical qualifications on 3 rd and your reply was: “He told me later, it was Suzanne who told me he was a nurse.” Mrs King: Yes Ms Power: So do you agree there you’re saying again that prior to the second appointment you’d been told nothing from Mr Melin about his alleged qualifications? Mrs King: Yes, I’m confusing the dates.” …. “Ms Power: So, in fact, is that the correct position, Mrs King, to the best of your recollection – Mrs King: Yes Ms Power: If anything was said about his qualifications it was the second time? Mrs King: Yes.” …. “Ms Power: I think, are we agreed that, in fact, you say that there, any reference to Mr Melin being a doctor happened on the second occasion? Mrs King: Yes.” vii) When Mrs King booked the top-up appointment in a text message to Lisa Bolster she referred to the Appellant as, “The guy who did it said I’d get a free top up if it didn’t work after two weeks”. 15. In relation to Carol Kingscott, her evidence can be summarised as follows. She attended a Botox party arranged through the beauty salon run by her friend, Jozette Shepherd, a beautician. The Botox treatments were arranged through Jozette Shepherd (or somebody else) on her behalf and Ms Kingscott had no dealings with the Appellant before 5 November 2011 (the date of the first treatment). 16. When the Appellant arrived on 5 November, he set up his equipment in one of the treatment rooms at the salon. She went into the treatment room. During that first treatment the Appellant said that he had trained to be a doctor in the Turkish army and had specialised in facial surgery. This was said in the context of general conversation as the treatment was taking place. She was told at the end of the treatment that there would be a free top up if there was a problem. 17. She took this up because in her view, the treatment had not worked. The arrangements were made by Ms Shepherd. She had no contact with the Appellant. She attended at the beauty salon on 22 November. She gave evidence about the adverse symptoms she experienced following that treatment. 18. Ms Kingscott maintained in evidence that she would not have allowed injections if she had known the Appellant was not medically qualified: “Mr Jones: And the final question is this, would you have allowed any of these injections to have been administered if you had known that Ozan Melin was not medically qualified? Ms Kingscott: Absolutely not. I’ve only ever had Botox injected previously by qualified clinicians.” 19. The expert, Mr Rayner, gave evidence among other things that there was no evidence of what he described as Botox effect in relation to these three treatments. He said “I can’t say whether a botulinum toxin A was present in the products used, there may have been. It may not have been at the correct concentration or the substance may have been rendered inactive as a result of handling.” 20. The Judge summarised the position at the end of his evidence to this effect: “We ended up in the situation where he couldn’t say precisely what had been used, he couldn’t exclude the fact that botulinum toxin A had been present, but all he could say was that there was no effect and that what was used, whatever it was, brought about this chemical type of burning.” 21. In his summing up to the jury the Judge made clear that the indictment concerned the second set of injections in each case and that the issue of consent was to be considered in relation to the second treatment. As to consent, he directed the jury as follows: “During our life we may consent to treatments such as medical procedures, dental procedures, and now cosmetic procedures. Where there has been a consent the treatment or procedure is lawful. When considering each count the Prosecution, who have the burden of proof, must make you sure that the act of the Defendant was unlawful, that is without consent. So here each complainant has told you they did agree to Mr Melin carrying out the procedure, but only because he said he was medically qualified. The Defence case is that each complainant agreed to the treatment before any representation was made, and in, and in any event the individual complainant did not rely upon anything that was said. So, when considering each count the Prosecution must make you sure firstly Mr Melin did say to the relevant complainant that he was medically qualified before he injected the substance, and secondly the complainant relied on the statement and only consented, and I repeat, and only consented to the procedure on the basis that Mr Melin was medically qualified. If you are sure, if the Prosecution have made you sure you would then go on to consider the next stage which is considering the issue of recklessness. If you are not sure, and you are not sure that it was unlawful, then you must find the Defendant not guilty of the count you are considering." 22. Understandably in light of the evidence, the Judge did not refer to representations as to the nature and quality of the treatment administered as even arguably vitiating consent to the treatment received by the complainants. The appeal 23. The safety of the Appellant’s convictions is challenged by Ms Power. First, she submits that the Judge was wrong in law to reject the submission made to him on the issue of consent. She submits that there was no case to go to the jury as a matter of law. 24. In his ruling on the submission of no case to answer at the close of the Crown’s case, the Judge held as follows: “I have considered the decision in R v Richardson [1998] 2 Cr App R 200 where a restricted view was taken as to the meaning of identity. The footnote in Smith & Hogan [publication] states that the case must be read with the decision of the Court of Appeal in Tabassum [2000] 2 Cr App R 328 . At page 336 Rose LJ, Vice President, commented that in Richardson [case] the focus had been upon identity and the Prosecution had not relied upon the nature or quality of the act. The Prosecution draw attention to the fact that the word ‘identity’ is an ordinary English word. It had been defined as: “The fact of being who or what a person is.” In my judgment there can be situations in which the qualification of a person is an integral part of their identity. A person attending an Accident & Emergency department is not just interested in knowing the name of the surgeon or doctor. The matter of real concern and importance is that the person is a qualified doctor. I also consider that the nature and quality of an act can be dependent upon the qualification of the person carrying out the act. I find that a positive misrepresentation as to medical qualification is sufficient to vitiate apparent consent where the circumstances involve a consent to a medical or cosmetic operation or procedure where the Complainant has relied upon the representation and would not have consented if they had known the true position. In Tabassum [case] and this is reflected in the commentary in Smith & Hogan [publication]. ….. The submission is also maintained on evidential grounds. It is necessary to consider consent in respect of each Complainant at the time of the second procedure. Each said they would not have consented if they had known that the Defendant was not medically qualified. I immediately recognise that the Defence have established many valid points. Treatment was arranged through a third party. There was no stipulation that the treatment was to be by a doctor. The Defendant was not specifically asked by any Complainant as to his qualification. There are also other points that can be made. I have carefully monitored the evidence, the Defence have a number of good jury points. It is a matter for the Jury to consider the evidence in the light of submissions and decide whether an individual Complainant relied upon any misrepresentation of which they are sure. The case must properly be left to the Jury. A properly directed jury would be entitled to convict. As part of my summing up I will highlight the main points made by each side. Accordingly, I refuse the submission.” 25. In challenging that ruling, Ms Power submits that R v Richardson [1998] 2Cr App R 200 remains good law and clearly states where a deception as to identity is concerned, the “identity” of the person cannot extend to cover the “qualifications or attributes” of the person. To hold otherwise would be to strain or distort the everyday meaning of the word identity, the dictionary definition of which is “the condition of being the same” (Otton LJ at 206). R v Richardson should have been followed by the Judge given that it was neither distinguishable on the facts nor did the Judge seek to distinguish it. Ms Power is critical of the example given by the Judge of a person attending A & E who is more concerned that the treating person is a qualified doctor, than with that person’s name. She submits that is no different from R v Richardson which was itself concerned with treatment required to be delivered by a qualified dentist, in the same way that treatment delivered in A & E requires a qualified doctor; yet this was held to be insufficient to vitiate consent to the treatment. In fact, she submits, the qualifications of the dentist were more integral to the identity of the dentist than this case where, the Appellant was not in fact required by law to have any qualifications to administer Botox under the Human Medicines Regulations 2012 , provided he was acting in accordance with the directions of an appropriate practitioner. In the absence of any legal requirement to possess qualifications in order to administer Botox, she submits that it cannot be said that such a qualification is “integral” to the identity of the person carrying out the procedure, and any deception by the Appellant was a deception relating to a collateral issue that could not vitiate consent. 26. Despite the clarity with which Ms Power advanced her submissions, we do not accept them. Our reasons follow. 27. At common law it is generally well established that for offences against the person a defendant’s fraud as to conduct will not negative the victim’s consent unless it deceives the victim either as to the defendant’s identity or as to the nature of the act. So if a victim agrees to a medical or cosmetic procedure conducted by X, consent is prima facie vitiated if the defendant conducting the procedure is not X but is impersonating X. Likewise, in relation to the nature of the act. 28. In R v Richardson the defendant was a registered dental practitioner who had been suspended from practice by the regulatory body, but continued to practise dentistry on patients. The Crown’s case was that the patients would not have consented to the treatment had they known of the suspension and the defendant was convicted of assault occasioning actual bodily harm following a ruling by the trial judge that the mistake was equivalent to a mistake of identity and vitiated consent. The defendant appealed. In resisting the appeal, the Crown contended that the concept of “identity of the person” should extend to cover qualifications or attributes of a professional on the basis that the victims consented to treatment by a qualified dentist and not by a suspended dentist. This Court disagreed, holding that this extended definition strained and distorted the everyday meaning of the word “identity”: either there is consent to actions on the part of a person in the mistaken belief that they are other than they truly are, in which case it is assault or, short of this, there is no assault. In other words, it is the nature of the mistake as to consent that is relevant and not the reason why the mistake has been made. 29. On the facts of that case, we have no doubt that is correct. Plainly it would be undesirable for the law to treat all false or fraudulent representations as vitiating consent because that would lead to, at least potentially, trivial lies about the person or the conduct, treatment or activity as giving rise to criminal liability. 30. However, it seems to us that there may be cases where a person’s identity is inextricably linked to his or her professional status. As the authors of Smith and Hogan’s Criminal Law (15 th edition) argue (at 672): “It could be argued that there are some situations in which the status or attribute of the individual is inextricably bound up with his identity for the purposes of the specific activity he is performing. Indeed, it could be that the attribute is actually more important than the identity. For example, would a patient visiting a general practitioner and being told that a new doctor is taking the surgery be more concerned as to the “status” of the person or his “identity”? The same argument might apply to the attribute of being a police officer.” 31. We agree with that as a general principle, and Ms Power also accepted it as such in the course of argument. The word ‘identity’ is an ordinary English word, defined as “the fact of being who or what a person is”. Depending on the facts, it seems to us that deception as to a person’s identity as a doctor where that is integral to his or her identity, can as a matter of law vitiate consent. That is different to what happened in R v Richardson and does not amount to including qualifications within this definition in the sense referred to in R v Richardson . 32. Ms Power maintained that this general principle cannot apply as a matter of law in the circumstances of this case because Botox is not required to be administered by a doctor and so being a doctor cannot be integral to the identity of the person administering the injection. 33. We disagree that this raises an argument of law. Rather, it seems to us that this is a challenge to the application of the principles to the facts of this case. Here, unlike in R v Richardson , where the fraud was not as to whether the defendant was a qualified dentist but as to whether she remained licensed by her regulatory body, the treatment was said to have been given by a person impersonating a medically qualified practitioner. Whether the fact of being medically qualified was operative in the minds of the complainants in giving consent cannot be determined solely by reference to the regulatory requirements for the administration of Botox injections, though that might play a part in the factual matrix depending on what was known and understood by the complainants concerned. If as a matter of fact, administration of the injection by a medically qualified practitioner was for each complainant a condition of giving her consent and without it, consent would not have been given or would have been withdrawn, it seems to us that this would go to the question of the appellant’s identity and the legal validity of their consent. Accordingly, in our judgment there was at least potentially a deception as to identity rather than merely qualifications or attributes in this case. We also consider, as Mr Jones submitted, that whereas in R v Richardson there was a failure to inform, here there were, on the Crown’s case, positive false representations that the Appellant was a doctor. 34. In the circumstances we do not consider that the holding in R v Richardson meant that there was no case to answer as a matter of law. The Judge accordingly made no error in that regard and the first ground of appeal therefore fails. It is unnecessary in these circumstances to consider the arguments advanced by reference to R v Tabassum [2000] 2 Cr App R 328 and the question whether true consent was vitiated in consequence of false representations about the nature, quality or purpose of the procedure administered. 35. It seems to us that the real question on this appeal is whether, as Ms Power submits on ground two, the Judge erred in holding that, on the evidence, a jury properly directed could convict. It was and remains her case that the Crown’s evidence, taken at its highest, was insufficient to establish a case against the Appellant that consent was dependent in each case on the Appellant’s identity as a doctor and was therefore vitiated by the deception. 36. We have summarised the relevant evidence above. 37. Ms Power submits that Mrs King consented to the first treatment without any representation having been made to her by the Appellant as to his qualifications. Given that Mrs King underwent the first procedure without any representation made by the Appellant, any representation made by him during the second occasion cannot have been formative to consent. In relation to Ms Kingscott, the representation took place after she had decided to undergo treatment. She had already attended the address where the appointment was due to take place, and was already in the treatment room, at the time of the representation. 38. She therefore submits that taking the evidence as to timing of the representations made by the Appellant to the complainants at its highest, representations that he was a doctor could not have formed the basis on which consent to the Botox injections was given. A reasonable jury, properly directed, was not therefore entitled to convict on this basis. 39. We see the force of those submissions in the case of Mrs King and have concluded that Ms Power is correct: there was insufficient evidence to leave the case relating to her treatment to the jury. In her case, there was no representation by the Appellant as to his medical qualifications before she attended for the first treatment, and Mrs King initially thought the injections would be administered by a beautician. Whatever Suzanne Johnstone told her about the Appellant at the first treatment, she was already in the treatment room poised for the second treatment before any representation was made by the Appellant as to his medical qualifications, even taking her evidence at its highest. It is difficult to see how the statement he made 30 seconds before the injection went in on the second treatment can have had any operative effect on her decision to take up the second treatment. The conviction on this count cannot therefore stand and must be set aside. 40. In Ms Kingscott’s case we take a different view. In her case, the representation was made in the treatment room immediately before the first set of injections. The harm was caused by the second set of injections. We consider that the Jury would have been entitled to accept her evidence as a whole, and conclude that Ms Kingscott took up the offer of a second set of injections believing that the Appellant was medically qualified, and would not have taken the free top-up from the Appellant had she not understood him to be medically qualified. The conviction on this count is not unsafe accordingly. Review of sentence 41. In light of our conclusion in relation to count 1, the Appellant’s sentence falls to be reviewed. 42. As we have already stated, on 8 June 2018 HHJ Forster QC sentenced the Appellant to a total term of 4 years’ imprisonment on each count concurrent, having adjusted the sentences for totality. The Appellant had been released on bail prior to sentence and the court had a presentence report and a psychiatric report available. 43. Ms Power accepts that the level and lasting nature of Ms Kingscott’s injuries places them within “greater harm” for the purposes of the Sentencing Council Definitive Guideline on Assault. So far as culpability is concerned, she submits that the facts do not fit easily within any bracket as the Crown’s case was that the Appellant did not intend deliberately to injure any of the complainants and that his conduct was reckless. She submits that as a matter of logic, if the Appellant’s business model was attracting customers to repeat procedures and by word of mouth, any deliberate premeditation to cause injury would make no business sense. Therefore, a lack of premeditation is arguably present; a factor indicating lower culpability. 44. We agree that this offence does not fit easily within the culpability factors identified in the Guideline. We do not, however, accept there was any lack of premeditation. To the contrary, this was well-planned but reckless conduct. We consider that greater harm and greater culpability was present and places this single offence within category 1 (not category 2 as Ms Power submitted) with a starting point of 3 years’ custody and a range of 2½ to 4 years’ custody. 45. We accept that the aggravating feature identified by the Judge, namely that the Appellant knew in 2011 about Carol Kingscott’s extreme reaction to the injections but nevertheless continued to give Botox injections including to Marcelle King in 2013, is no longer present in light of our decision. There are no other aggravating factors. 46. So far as mitigation is concerned, we accept that there are mitigating factors available to the Appellant. He is 42 years old with no relevant previous convictions. His actions were reckless and not designed to harm. There was a lengthy delay between his arrest in August 2013 and his charge in 2017 which was not his fault. 47. Ms Power also relies on the opinion of Dr Gary Jenkins that the Appellant was suffering from anxiety and depression to a greater degree than has been recognised to date as a result of these circumstances. We have read and considered his report. We accept that the Appellant expressed genuine remorse to both the author of the PSR (which we have read) and to Dr Jenkins. 48. We take a starting point of 3 years. We reflect the mitigating features summarised above by reducing that to 2 years’ imprisonment. Accordingly, the sentence of 4 years concurrent on counts 1 and 3 is quashed and we substitute a sentence of 2 years’ imprisonment on count 3. To that extent the appeal is allowed.

2019_04_02-4556.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/557/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/557

c5294325c80feb57aa00741f38907ec7210db97fa0e9dc810a0686fa0cdcae1b

[2018] EWCA Crim 2248

EWCA_Crim_2248

2018-09-11

crown_court

Case No: 201801674 A3 ; 201801675 A3 Neutral Citation Number: [2018] EWCA Crim 2248 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BOLTON HHJ R GIOSERANO T20177089; T20177128 Royal Courts of Justice Strand, London, WC2A 2LL Date: 11/09/2018 Before: LORD JUSTICE LEGGATT MR JUSTICE LEWIS and MRS JUSTICE CARR DBE - - - - - - - - - - - - - - - - - - - - - Between: REGINA Appellant - and - X and Y Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Case No: 201801674 A3 ; 201801675 A3 Neutral Citation Number: [2018] EWCA Crim 2248 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BOLTON HHJ R GIOSERANO T20177089; T20177128 Royal Courts of Justice Strand, London, WC2A 2LL Date: 11/09/2018 Before: LORD JUSTICE LEGGATT MR JUSTICE LEWIS and MRS JUSTICE CARR DBE - - - - - - - - - - - - - - - - - - - - - Between: REGINA Appellant - and - X and Y Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms Barbara Webster (instructed by Barrett Nelligan Solicitors ) for X Mr Steven Swift (instructed by Stephensons Solicitors LLP ) for Y Hearing date: 11 September 2018 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Leggatt: 1. On 22 January 2018, at Bolton Crown Court, the first appellant, whom we shall refer to as X, pleaded guilty to 18 offences of indecent assault. The victims of those offences were his three stepdaughters. The offences were committed over a period of 17 years between 1979 and 1996 in the family home. The offences charged were examples only of a long and dreadful history of sexual abuse. 2. At the same hearing, X's brother, the second appellant, whom we shall refer to as Y, pleaded guilty to 15 offences of indecent assault and three offences of rape. Those offences were committed over the same period. The victims were the same three individuals as in the case of X but also included a fourth person, X's own natural daughter, who was therefore Y's own niece. 3. All four victims are entitled to lifelong anonymity and nothing must be published in any report of this case which would be likely to lead members of the public to identify them. It is for that reason, and that reason only, that we do not refer to the appellants by name in this judgment. They have no right to anonymity themselves but naming them would be likely to lead to their victims being identified. 4. X and Y were sentenced on 23 March 2018. In the case of X, the total sentence imposed was 20 years, comprising 18 years' imprisonment and 2 years extended licence. A table giving a breakdown of the offences and the sentences imposed for each offence is set out below: Count Offence Sentence Consecutive / Concurrent Maximum 21 Indecent assault, s.14(1) Sexual Offences Act (SOA) 1956 June 1986 – June 1987 Complainant U16 3 years’ plus 1 year extended licence 10 years 22 Indecent assault, s.14(1) SOA 1956 July 1979 – July 1985 Complainant U13 3 years’ plus 1 year extended licence Concurrent 5 years 23, 24 Indecent assault, s.14(1) SOA 1956 Sept 1985 – July 1988 Complainant U16 4 years on each concurrent Concurrent 10 years 25, 26 Indecent assault, s.14(1) SOA 1956 Feb 1979 – Sept 1985 Complainant U13 3 years’ plus 1 year extended licence On each concurrent Concurrent 5 years 27, 28 Indecent assault, s.14(1) SOA 1956 Feb 1987 – Feb 1990 Complainant U16 4 years on each concurrent Concurrent 10 years 30, 40 Rape, s.1(1) SOA 1956 10 years on each consecutive Consecutive Life 31 Rape, s.1(1) SOA 1956 12 years Concurrent Life 33, 34 Indecent assault, s.14(1) SOA 1956 June 1987 – June 1993 Complainant U16 4 years on each concurrent Consecutive 10 years 35, 36 Indecent assault, s.14(1) SOA 1956. June 1993 – June 1996 Complainant U16 4 years on each concurrent Concurrent 10 years 37, 38 Indecent assault, s.14(1) SOA 1956. Sept 1991 – Sept 1992 Complainant aged 10 3 years’ plus 1 year extended licence On each concurrent Concurrent 10 years 39 Indecent assault, s.14(1) SOA 1956. Sept 1991 – Sept 1992 Complainant aged 11 3 years Concurrent 10 years Total Sentence: 28 years, comprising 27 years’ imprisonment and 1 year extended licence pursuant to s.236A CJA 2003 5. In the case of Y, the total sentence was 29 years, comprising 28 years' imprisonment and 1 year extended licence. Again, a table giving a breakdown of the offences and the sentences imposed for each offence is set out below: Count Offence Sentence Consecutive / Concurrent Maximum 1, 2 Indecent assault, s.14(1) SOA 1956 July 1979 – July 1985 Complainant U13 2 years on each concurrent 5 years 3 Indecent assault, s.14(1) SOA 1956 Sept 1985 – July 1987 Complainant U16 2 years Concurrent 10 years 4 Indecent assault, s.14(1) SOA 1956 Sept 1985 – July 1988 Complainant U16 2 years Concurrent 10 years 5, 6 Indecent assault, s.14(1) SOA 1956 Feb 1979 – Sept 1985 Complainant U13 3 years’ plus 1 year extended licence on each concurrent Consecutive 5 years 7, 8 Indecent assault, s.14(1) SOA 1956 Feb 1987 – Feb 1990 Complainant U16 5 years on each concurrent Consecutive 10 years 11, 12 Indecent assault, s.14(1) SOA 1956 Feb 1979 – Sept 1985 Complainant U13 2 years on each concurrent Concurrent 5 years 13, 14 Indecent assault, s.14(1) SOA 1956 Feb 1987 – Feb 1990 Complainant U16 2 years on each concurrent Concurrent 10 years 15, 16 Indecent assault, s.14(1) SOA 1956 June 1987 – June 1993 Complainant U13 3 years’ plus 1 year extended licence on each concurrent Consecutive 10 years 17 Indecent assault, s.14(1) SOA 1956 June 1993 – June 1996 Complainant aged 11 years 5 years Consecutive 10 years 18 Indecent assault, s.14(1) SOA 1956 June 1993 – June 1996 Complainant U16 5 years Concurrent 10 years 19, 20 Indecent assault, s.14(1) SOA 1956 June 1987 – June 1996 Complainant U16 4 years on each concurrent Concurrent 10 years Total sentence 18 years, comprising 16 years’ imprisonment and total of 2 years extended licence pursuant to s.236A CJA 2003 6. Both X and Y have appealed against their sentences with leave of the single judge. 7. The judge in sentencing them described this case as one of the worst he had heard in the many years he has spent sitting in the Crown Court and in Family Courts dealing with cases of sexual abuse. The following summary inevitably omits much detail that would be necessary fully to convey the horrific nature of the facts. 8. The abuse began soon after X moved into the family home in 1979. At that time, his oldest stepdaughter, whom we will refer to as A, was aged 7. The first incident she recalled occurred in the bedroom that X shared with her mother. It involved him touching and rubbing her vagina. Thereafter, he would regularly enter the bedroom she shared with her sisters, put his hand under the bedclothes and rub her vagina. Sometimes he would wet his fingers before touching her. This would also occur when she sat on his knee in the living room. The assaults took place as often as four times a week. To begin with A did not understand that X's behaviour was wrong and did not try to stop him, but in later years she would push his hand away and try to prevent him from assaulting her. The assaults continued until she was about 14 years old. 9. A's sister B was subjected to similar abuse from soon after X moved into the family home when B was aged only 5 years. In B's case the abuse also included X exposing his penis and touching or rubbing her vagina with his penis. He would also take her in his car to places where he would park and touch her in the same way. He would also make her touch his penis and masturbate him until ejaculation. This behaviour continued until B was aged 15. 10. C, the third stepdaughter, was also regularly abused by X between the ages of 7 and 16. He would enter her bedroom regularly at night and wake her up by touching her vagina. He would then digitally penetrate and lick her vagina. This happened frequently and sometimes two or three times a week. 11. Y was a regular visitor to the house and his abuse of A and B began soon after his brother moved in. In the case of A, the general pattern was that Y would get her to sit on his knee and would then touch and feel her leg, moving his hand up to her vagina, which he would penetrate with his finger. At the same time he would kiss her on the lips. There came a time when A was between 10 and 12 when Y moved into the family home. He continued to abuse her until she was around 16. 12. Y assaulted B on numerous occasions between the ages of 5 and 15 years old. The assaults took the form of kissing her, penetrating her vagina with his finger and penis and attempting to have anal sex with her. This would occur in one of the bedrooms at the home, in the dining room and in Y's van. There were also occasions when she was made to masturbate him until he ejaculated. Once this took place in the living room in front of X and B mother. 13. B also remembered a specific occasion when she was aged 14 or 15 when Y raped her vaginally. This was the subject of one of his convictions for rape. 14. Later, when B was 18 years old, Y tricked her into going with him to a house where he locked her in the bedroom and forcibly raped her. As a result of that rape B was made pregnant and gave birth to a son. 15. When he was living in the same home as the family, Y also regularly assaulted C by entering her bedroom at night and penetrating her digitally. The first time this happened it caused her to bleed. 16. Finally, as already mentioned, Y abused X's natural daughter, D. When D was aged 10 the abuse took the form of kissing and hugging her and touching her vagina when other family members were not present. When D was aged 11 there was one occasion when the abuse took a different form of licking her vagina. Later, when she was aged 13 or 14, there was an occasion when Y made her have full sexual intercourse. This assault was the subject of his third conviction for rape. 17. The statements made by each of these victims testify to the devastating impact which this abuse has had in blighting their lives. 18. X was 65 years old when he was sentenced. He has a history of low-level criminal offending which includes a previous conviction for indecent assault. The pre-sentence report in his case indicated that he failed to take full responsibility for his behaviour, giving a minimised version of events and seeking to pass blame to his brother. 19. Y was aged 60 at the time of sentence. He has numerous previous criminal convictions and they include, importantly, convictions for 26 previous sexual offences. These offences include the rape of a boy under 14 and a sexual assault which involved the attempted rape of his own natural daughter. In relation to his previous offending, Y has taken a sexual offender treatment course four times, but that treatment has plainly had no significant effect on his behaviour. According to a psychological report, he was himself abused as a child. He has expressed regret for his actions and does not deny them, but has claimed not to remember most of the relevant events. 20. On behalf of Y, Mr Swift realistically accepted, as he was bound to do, that this is a very grave case. He raised a point about an unfortunate arithmetical confusion which took place when the sentence was announced. Originally the judge announced that the custodial sentence was to be 27 years, but this was then corrected to 28 years after the arithmetic had been properly performed. There is no doubt, however, that the judge intended to impose a sentence which involved a 28 year custodial term and in our view it cannot be said that any injustice was done by reason of the fact that the calculation was at first incorrectly done. 21. Both defendants pleaded guilty shortly before their trial was due to start. The judge said that in these circumstances he had made a 15 per cent discount in the length of their sentences. No criticism can be made or has been made of that approach. The judge should have specified his starting points but by implication in the case of X the starting point must have been a term of 22 years' imprisonment or thereabouts, which was then reduced to 18 years on account of his guilty pleas. In the case of Y, the starting point must have been around 33 years. 22. The principal point made by Mr Swift on behalf of Y was that, grave as this case is, the sentence imposed was at the extreme end of the spectrum. He referred in his written grounds of appeal to the decision of this court in the case of R v DJ [2015] EWCA Crim 563 , in which a total custodial sentence of 33 years for a catalogue of serious sexual offences committed against young girls over a considerable period was reduced to 30 years. The court considered in the judgment cases at what was described as the extreme end of the spectrum of offending. 23. It must, however, be borne in mind that that case and the cases which were discussed in it were all decided when the previous sentencing guidelines were in force. Under the current sentencing guidelines, sentences for sexual offences have in general been increased. That is illustrated by the fact that under the earlier guidelines the starting point in a case of repeated rape of the same victim was one of 15 years whereas in the present guidelines it is recognised that cases may be of such severity - for example involving a campaign of rape - that sentences of 20 years and above may be appropriate. 24. The argument made by Mr Swift was that, whilst recognising that this case must necessarily attract a sentence high in the spectrum, the starting point of 33 years was simply too high and a starting point somewhere around 30 years or just below that would have been appropriate. 25. We recognise and accept that the starting point implicitly taken by the judge in this case was at the extreme end of the spectrum and that cases will be few and far between in which a starting point of that severity is appropriate. But, as the court emphasised in the case of DJ , there will in any given case be a number of factors to be taken into account. A case may reach of the level of the utmost seriousness by a variety of routes. What is required in each case is a careful assessment of the facts. 26. We are satisfied that on such an assessment of the facts, the sentences imposed on Y were justified. His offending involved the digital penetration in each case of his three step-nieces as well as other forms of sexual assault. It included the two offences of rape against B, the second of which resulted in her having a child. It included the rape of his own niece. The abuse continued week in, week out, week after week, year after year for an inordinate period of some 17 years. It must also be considered against the background of his previous appalling record of sexual offending to which we have referred. Y is, we are satisfied, a person of whom it can truly be said that the sexual abuse of vulnerable children has been a way of life. We consider that, high as the sentence is in this case, it cannot properly be said to be manifestly excessive. 27. Accordingly, his appeal against sentence is dismissed. 28. The same applies to X. Although he unlike his brother has not been convicted of rape, the indecent assaults which he committed included offences of digital penetration. There were three separate victims in relation to each of whom he occupied a position of trust as their stepfather living in the same home. The offences started when one of his stepdaughters was aged 5 and when each of the others was aged about 7. Above all, the offending was persistent and remorseless, occurring, as in the case of his brother Y, week after week, year after year, for a period of some 17 years. It has caused severe, predictable and probably permanent psychological damage to the three individuals concerned. 29. On his behalf, Ms Webster sought to argue that the sentence imposed was outside the sentencing guidelines. We see no merit whatever in that submission. The sentences imposed for the individual offences were in each case offences of 3 years or, in the case of the most serious offences, 5 years. Those sentences are well within the applicable guidelines for offences of the relevant type. We are also satisfied that the judge took appropriate account of the principle of totality. We see nothing wrong with the sentences arrived at in this case, which likewise in our view cannot be regarded as manifestly excessive. 30. It follows that the appeal of X will also be dismissed.

2018_09_11-4391.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/2248/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/2248

14cf76e0f786899a6222f410bdd31b76e6398280dcc1d20c2eeededdcd77455e

[2007] EWCA Crim 539

EWCA_Crim_539

2007-03-09

supreme_court

Neutral Citation Number: [2007] EWCA Crim 539 Case No: 200606160 A1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BOLTON CROWN COURT Mr Recorder Lamb 200606160A1*2 Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/03/2007 Before : LORD JUSTICE HOOPER MR JUSTICE STANLEY BURNTON and THE COMMON SERJEANT HIS HONOUR JUDGE BARKER QC - - - - - - - - - - - - - - - - - - - - - R v Martin Whittle - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2007] EWCA Crim 539 Case No: 200606160 A1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BOLTON CROWN COURT Mr Recorder Lamb 200606160A1*2 Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/03/2007 Before : LORD JUSTICE HOOPER MR JUSTICE STANLEY BURNTON and THE COMMON SERJEANT HIS HONOUR JUDGE BARKER QC - - - - - - - - - - - - - - - - - - - - - R v Martin Whittle - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Graham Robinson for the Appellant Martin Whittle Paul Murphy (instructed by the CPS ) for the Respondent Hearing date: 16 February 2007 - - - - - - - - - - - - - - - - - - - - - Judgment Stanley Burnton J : 1. On 31 August 2006 at the Crown Court at Bolton (Mr Recorder Lamb) the appellant was convicted of two counts of possessing a Class A drug (Heroin) with intent to supply. On 7 November 2005 he was sentenced to 5 years’ imprisonment on each count concurrent. In addition, a travel restriction order for 2 years was imposed purportedly pursuant to s.33 Criminal Justice and Police Act 2001 ; and an order was made for the forfeiture/disposal/destruction of drugs under s. 27 Misuse of Drugs Act 1971 . 2. He sought leave to appeal against his custodial sentence on the ground that it was manifestly excessive in that it failed to take into account the Sentencing Guidelines Council’s guidance on the approach to custodial sentences imposed under the Criminal Justice Act 2003 , which, so it is submitted, recommended a reduction of 15 per cent in the length of sentences that would previously have been imposed. He sought leave to appeal against the travel restriction order on the ground that there was no jurisdiction to impose it. 3. The Registrar referred his application for leave to appeal against sentence direct to the Full Court. The Registrar pointed out that the appellant was born on 24 September 1985, and was therefore aged 20 when he was convicted. Accordingly, he should have been sentenced to detention in a young offender institution rather than imprisonment (see R v Danga (1992) 13 Cr App R (S) 408 . We gave leave when the application was listed before us on 16 February 2007. 4. The relevant facts of the offences are as follows. At 2.50pm on 27 April 2005, police officers in a marked police vehicle had cause to stop a car which the appellant’s co-accused O’Gara was driving and in which the applicant was the front seat passenger. It was established the applicant was wanted for other matters and he was placed in the police vehicle whilst one of the officers started to search their car. O’Gara was told to wait beside the car but ran off and made good his escape. The officer continued to search the car and recovered a plastic “Dash Board Wipes” container. Upon closer inspection, the container was found to contain two plastic packages, one containing 39 smaller packages of heroin weighing 11.2 grams at 40% purity and the other 58 smaller packages of cocaine weighing 18.4 grams at 38% purity. The street value of the drugs was around £3,000. 5. When interviewed, the applicant denied any knowledge of the drugs. 6. Passing sentence, the learned recorder said that the applicant had been involved in a joint enterprise in the moderate distribution of Class A drugs. He and his co-accused had the equipment to travel in order to distribute the drugs and it was obvious some dealing had taken place because £81 was found on the applicant. The offending was not in the lowest bracket of one addict supplying to another. The judge said: … I have reviewed the decisions in Djahit [1999] 2 Cr App R (S) 142 and Singh (1988) 10 Cr App R (S) 402 and it is clear from those that the starting point for sentence in a case such as this lies in the range of between 5 and 7 years. I have in mind that you were both young at the time of these events – Whittle you were 19 and, so far as you are concerned, O’Gara, you were 18 at the time of your involvement – and in those circumstances, I am able to take the lowest of those starting points as the appropriate point for sentencing. 7. O’Gara, who had pleaded guilty to 2 counts of possessing a Class A drug, namely heroin, with intent to supply, was sentenced on the basis of his plea, namely that he had been recruited by others to sell the drugs for them at a time when he was financially destitute, that he had been provided with a vehicle in order to sell the drugs and that he was being paid £200 a week. He received a sentence of 3 years’ detention in a young offender institution. 8. Sentencing the appellant, the judge said that did not have the credit of a plea; the mitigating factor in his case was his age, but he had played a greater role than O’Gara because the tub in which the drugs were found had been purchased by him and he was holding the money. The judge imposed the sentence of 5 years imprisonment referred to above, i.e., the lowest of the starting points to which he had referred, and in addition made the travel restriction order. 9. The power to make a travel restriction order under section 33 of the Criminal Justice and Police Act 2001 is restricted to persons found guilty of a drug trafficking offence as defined in section 34. Perhaps surprisingly, possession of a Class A drug with intent to supply is not an offence specified in section 34. No order has been made by the Secretary of State under section 34(1)(c) designating possession with intent to supply as a drug trafficking offence for the purposes of section 33 . It follows that there was no power to make the travel restriction order in this case. It will be quashed. 10. Turning to the custodial sentence, Mr Robinson’s only submission is that in taking the sentencing range of 5 to 7 years from Djahit , the judge ignored what is said to be the recommendation of the Sentencing Advisory Council that sentences imposed under the Criminal Justice Act 2003 should be 15 per cent shorter than the sentence that would have been imposed before that Act came into force. He submitted that the range should now be from 4 years 3 months (51 months instead of 60) and about 6 years. If the judge had appreciated this, given that he intended to pass a sentence at the lowest end of the range, he would have sentenced the appellant to a custodial sentence of 4 years and 3 months duration instead of 5 years. 11. Section 172 of the Criminal Justice Act 2003 requires the court, “in sentencing an offender, (to) have regard to any guidelines published [by the Sentencing Guideline Council] which are relevant to the offender’s case”. The guidelines are not binding on the court, but good reason is required if they are not to be followed. 12. The Sentencing Guideline Council’s Guideline New Sentences: Criminal Justice Act 2003 , addressed the issues arising from the change in the requirements relating to custodial sentences made by the 2003 Act in paragraphs 2.1.1 to 2.1.9. In so far as is relevant, they stated: PART 1 – CUSTODIAL SENTENCES OF 12 MONTHS OR MORE A. Statutory Provisions 2.1.1 Under existing legislation □ an adult offender receiving a custodial sentence of at least 12 months and below 4 years will automatically be released at the halfway point and will then be supervised under licence until the three-quarter point of the sentence. [For some, the actual release date may be earlier as a result of release on Home Detention Curfew (HDC).] □ an adult offender receiving a determinate sentence of 4 years or above will be eligible for release from the halfway point and, if not released before, will automatically be released at the two-thirds point. After release, the offender will be supervised under licence until the three-quarter point of the sentence. 2.1.2 Under the new framework, the impact of a custodial sentence will be more severe since the period in custody and under supervision will be for the whole of the sentence term set by the court. Additionally, separate provisions for the protection of the public will be introduced for those offenders designated as “dangerous” under the Act which are designed to ensure that release only occurs when it is considered safe to do so. 2.1.3 Where a prison sentence of 12 months or more is imposed on an offender who is not classified as “dangerous”, that offender will be entitled to be released from custody after completing half of the sentence. The whole of the second half of the sentence will be subject to licence requirements. These requirements will be set shortly before release by the Secretary of State (with advice from the Governor responsible for authorising the prisoner’s release in consultation with the Probation Service) but a court will be able to make recommendations at the sentencing stage on the content of those requirements.23 The conditions that the Secretary of State may attach to a licence are to be prescribed by order. 2.1.4 The Act requires that a custodial sentence for a fixed term should be for the shortest term that is commensurate with the seriousness of the offence. B. Imposition of Custodial Sentences of 12 Months or more (i) Length of Sentence 2.1.5 The requirement that the second half of a prison sentence will be served in the community subject to conditions imposed prior to release is a major new development and will require offenders to be under supervision for the full duration of the sentence prescribed by the court. The Probation Service will be able to impose a number of complementary requirements on the offender during the second half of a custodial sentence and these are expected to be more demanding and involve a greater restriction on liberty than current licence conditions. 2.1.6 As well as restricting liberty to a greater extent, the new requirements will last until the very end of the sentence, rather than to the three-quarter point as at present, potentially making a custodial sentence significantly more demanding than under existing legislation. Breach of these requirements at any stage is likely to result in the offender being returned to custody and this risk continues, therefore, for longer under the new framework than under the existing legislation. Transitional Provisions 2.1.7 In general, a fixed term custodial sentence of 12 months or more under the new framework will increase the sentence actually served (whether in custody or in the community) since it continues to the end of the term imposed. Existing guidelines issued since 1991 have been based on a different framework and so, in order to maintain consistency between the lengths of sentence under the current and the new framework, there will need to be some adjustment to the starting points for custodial sentences contained in those guidelines (subject to the special sentences under the 2003 Act where the offender is a “dangerous” offender). 2.1.8 This aspect of the guideline will be temporary to overcome the short-term situation where sentencing guidelines (issued since implementation of the reforms to custodial sentences introduced by the Criminal Justice Act 1991 ) are based on a different framework and the new framework has made those sentences more demanding. As new guidelines are issued they will take into account the new framework in providing starting points and ranges of appropriate sentence lengths for offences and an adjustment will not be necessary. 2.1.9 Since there are so many factors that will vary, it is difficult to calculate precisely how much more demanding a sentence under the new framework will be. The Council’s conclusion is that the sentencer should seek to achieve the best match between a sentence under the new framework and its equivalent under the old framework so as to maintain the same level of punishment. As a guide, the Council suggests the sentence length should be reduced by in the region of 15%. When imposing a fixed term custodial sentence of 12 months or more under the new provisions, courts should consider reducing the overall length of the sentence that would have been imposed under the current provisions by in the region of 15%. 13. The Guideline is not without difficulty. 14. Paragraphs 2.1.7 – 2.1.8 suggest that the adjustment should be made to starting points in the pre-April 2003 Court of Appeal Guideline cases. 15. Paragraph 2.19 and the last paragraph (which is highlighted in the Guideline) are more widely stated. The expression “new provisions” in the last paragraph is a reference to the 2003 Act . The expression “current provisions” in that paragraph must be a reference to the [then] “Existing legislation”, the effect of which is summarised in paragraph 2.1.1. Applying paragraph 2.1.9 (“best match”) and the last paragraph, courts should consider reducing by about 15% any sentence of 12 months or more which attracts the new licence regime, namely the whole of the second half of the sentence will be subject to the licence requirements. Thus if a sentencer in a case for which there were no applicable Court of Appeal guidelines, would have passed a sentence of 18 months under the legislative provisions referred to in paragraph 2.1.1, then, according to paragraph 2.19 and the last paragraph, he must consider reducing the overall length of the sentence by “in the region of 15%”. 16. It seems to us that the suggested reduction is not restricted to pre April 2003 Court of Appeal guideline cases. Any such restriction would, it seems to us, introduce an unjustified and irrational distinction between offences which are the subject of such a Court of Appeal guideline and other cases. On the other hand we remind ourselves that, as has been said many times, sentencing is not a mathematical exercise (see e.g. Martin [2006] EWCA 1035, paragraphs 2 and 21). 17. We turn to this case. 18. In paragraph 2.1.9 the Council drew no distinction between a sentence of less than 4 years and one of 4 years or more. However, when on 8 February 2007 the Council Secretariat published their summary of the Guideline, it stated: The strength of the increased onerousness justification for a reduced sentence is weaker in relation to sentences of four years or longer since release was likely to be earlier under the new framework than under the old albeit that the period of supervision would continue for longer. 19. We agree. In the case of a sentence of 4 years or more, under the legislation as summarised in paragraph 2.1.1, the offender would have been eligible for release from the halfway point, and, if not released before, would have been entitled to have been released at the two-thirds point. If he falls to be sentenced under the Criminal Justice Act 2003 , he is entitled to be released at the halfway point; although against this his licence conditions are more stringent. In our judgment, in such a case the benefits and disadvantages to an offender of the change are more or less in balance. In a drugs case such as the present, in practice the offender would have been unlikely to have been released at the halfway point, so that if he falls to be sentenced under the 2003 Act his period in custody is likely to be less. The fact that his period at risk of being returned to prison is longer than it would have been seems, in our view, to be of less importance. 20. In these circumstances, in our judgment the judge was entitled, and indeed right, not to reduce the sentence imposed on the appellant below the lower of the Djahit guideline range. Accordingly, the appeal in relation to the length of the custodial term fails. The sentence of imprisonment will be replaced by a sentence of detention in a young offender institution of the same duration, namely 5 years.

2007_03_09-1045.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/539/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/539

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[2004] EWCA Crim 2237

EWCA_Crim_2237

2004-08-26

supreme_court

Case No: 2002/02921/X3 Neutral Citation Number: [2004] EWCA Crim 2237 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BRADFORD CROWN COURT HIS HONOUR JUDGE HULL Royal Courts of Justice Strand, London, WC2A 2LL Date: Thursday, 26 th August 2004 Before : THE RIGHT HONOURABLE LORD JUSTICE MAY THE HONOURABLE MR JUSTICE GRAY and THE HONOURABLE MRS JUSTICE HALLETT DBE - - - - - - - - - - - - - - - - - - - - - Between : R W PRIESTLEY Appellant - and - R Respondent

Case No: 2002/02921/X3 Neutral Citation Number: [2004] EWCA Crim 2237 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BRADFORD CROWN COURT HIS HONOUR JUDGE HULL Royal Courts of Justice Strand, London, WC2A 2LL Date: Thursday, 26 th August 2004 Before : THE RIGHT HONOURABLE LORD JUSTICE MAY THE HONOURABLE MR JUSTICE GRAY and THE HONOURABLE MRS JUSTICE HALLETT DBE - - - - - - - - - - - - - - - - - - - - - Between : R W PRIESTLEY Appellant - and - R Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Wordwave Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - D NATHAN QC for the APPELLANT G KEARL QC and N EDWARDS (instructed by THE CROWN ) for the RESPONDENT - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice May: Introduction 1. On 16 th April 2002, the appellant, who is aged 62 or thereabouts, pleaded guilty in the Crown Court at Bradford before His Honour Judge Hull to counts 2, 5 and 11 of an indictment containing 15 counts. Each of these counts alleged conspiracy to sell or distribute goods which bore a sign likely to be mistaken for a registered trade mark contrary to section 1(1) of the Criminal Law Act 1977 . The conspiracies were to contravene section 92(1)(b) of the Trade Marks Act 1994 . For count 2, the offending articles were bottles of perfume and fragrance; for count 5, bottles of Moet & Chandon champagne; and for count 11, a quantity of clothing. The other 12 counts were left on the file. The period during which the appellant was alleged to have committed the offences in each of the three counts to which he pleaded guilty was between 1 st January 1996 and 4 th November 2000. 2. On 17 th April 2002, the appellant was sentenced to 18 months imprisonment on count 2, 9 months imprisonment concurrent on count 5, and 4 months imprisonment concurrent on count 11. His total sentence of imprisonment was thus 18 months. 3. On 17 th December 2002, Judge Hull made a confiscation order against the appellant of £2,290,907.52. The judge fixed the period to be served in default of payment as 10 years, wrongly understanding that he was obliged to impose that as the alternative sentence. Mr Kearl QC, for the Crown, accepts that he mistakenly so submitted – see R v Szrajber (1994) 15 Cr. App. R. 821 at 824. The judge also ordered the appellant to pay £30,000 towards the prosecution costs. 4. The appellant appeals, by leave of the full court, against the amount of the confiscation order, the period of imprisonment in default and the costs order. 5. As the amount of the confiscation order indicates, the appellant was engaged with others in a counterfeiting operation of factory proportions. The prosecution case summary had described a police operation in Huddersfield in November 2000 and a Trading Standards operation in Leeds in November 1999. These operations identified a warehouse premises used for the production of counterfeit champagne in the Leeds area and three premises in the Huddersfield area used for the production of counterfeit perfumes. All or most of the major perfume houses and their products, together with the respective registered trade marks, were counterfeited on a massive scale. The police investigation suggested that the illicit operation had been running since 1996. It had been operated on a grand scale for the two years up to November 2000 from these premises. It was said that the scale of the operation had undoubtedly resulted in the loss of millions of pounds of revenue to both the perfume houses and the exchequer. The appellant was arrested on 3 rd November 2000. He was charged with others, but his major role in the operation gave rise to the confiscation proceedings in his case. The main subject of the confiscation proceedings was counterfeit perfume and fragrance. The confiscation proceedings 6. The procedural history of the confiscation proceedings is relevant. It is as follows. 7. The appellant was arrested on 3 rd November 2000. On 29 th January 2001, Maurice Kay J made a restraint order prohibiting him from dealing with or disposing of his assets except as authorised by the High Court. 8. The appellant was sentenced on 17 th April 2002. On that day, there was produced a document headed “Proposed Basis of Plea”. This was a 19 paragraph document which asserted an understanding that the main focus of the offending concerned the distribution of some 230,000 bottles of perfume and other fragrances. It was suggested that the majority of these had been sold abroad in Spain or Hungary, and that only some 37,000 bottles had been sold within the United Kingdom, being the territorial extent of the 1994 Act – see section 106 of that Act. It was suggested that the appellant had charged between £2.75 and £3.50 per bottle and that, where the charge was £3.50, 50p per bottle was retained by an associate. Broadly speaking, the judge sentenced the appellant on this basis. But Mr Nathan QC, who appears for the appellant on this appeal, accepts that the prosecution had made clear that they did not accept this basis of plea for the purpose of the confiscation proceedings. 9. On 17 th April 2002, the defendant was ordered to provide by 15 th May 2002 an affidavit in response to questions set out in a schedule provided to him asking for details of his income, bank and building society accounts and property. No affidavit was received by that date. 10. On 13 th June 2002, the prosecution served its statement under section 73 of the Criminal Justice Act 1988 in accordance with the timetable set out by the court. On 25 th June 2002, the case was mentioned at the crown court at the request of the prosecution. The appellant was again ordered to provide an affidavit, and also a response to the prosecutor’s statement, by 23 rd July 2002. No sworn affidavit was received or filed at the court by that date. A short unsworn affidavit was received on 31 st July 2002. 11. Because the defence had failed to respond to any of the court orders, the prosecution again had the case listed for mention on 9 th September 2002. On that day, a response to the prosecutor’s statement was provided, but still no sworn affidavit had been received. An explanation was given for this. The court ordered that the defendant’s affidavit should be served within 7 days and that the defence were to provide details of any accountancy evidence to be relied on within 7 days. No accountant’s report was served. No sworn affidavit was received. 12. On 30 th September 2002, the hearing of the confiscation proceedings began. The judge considered a submission on behalf of the appellant that the confiscation should relate only to counterfeit goods sold within the United Kingdom, the territorial extent of the 1994 Act. The judge rejected this submission. There was a ground of appeal to this court to the effect that this ruling was wrong. But Mr Nathan did not pursue this ground orally before the court in the face of the obvious facts that the conspiracy took place within the jurisdiction and all the counterfeit goods were at least distributed within the jurisdiction for the purposes of section 92(1)(b) of the 1994 Act. Also on 30 th September 2002, DC Whittleston gave evidence. He adopted the contents of the prosecutor’s statement which he had compiled and was cross-examined by Mr Nathan. 13. On 3 rd December 2002, the defendant was again ordered to answer the schedule of questions served by the Crown and to serve a sworn affidavit. No sworn affidavit was received. 14. Applications to adjourn the proceedings further were made by the defence on 10 th December and 16 th December 2002. By this time, the appellant had dismissed his legal representatives, including Mr Nathan. On 16 th December 2002, Mr Hatton QC appeared for the appellant to apply for a further adjournment. When this was refused, his instructions were withdrawn, but he remained to assist the court. DC Whittleston was recalled to correct an error in the calculations. The appellant then had the opportunity to give evidence and call witnesses. He did neither of these. There was still no sworn affidavit before the court. The hearing concluded. The judge adjourned the matter to the following day to give judgment. 15. On 17 th December 2002, the appellant was permitted to address the court further on an application to adjourn. The judge rejected this application. The appellant also referred to two witnesses who would be able to contradict details of the prosecution’s case derived from certain documents. The judge declined to hear these witnesses. There were subsequently applications to this court for the two witnesses to give fresh evidence on this appeal. Mr Nathan did not pursue these applications before us. Criminal Justice Act 1988 16. The confiscation proceedings were brought under the Criminal Justice Act 1988 . 17. Section 71 of the 1998 Act provided that, where an offender is convicted before the crown court of an offence of a relevant description, it is the duty of the court to act in accordance with the section, if the prosecutor has given written notice to the court that he considers that it would be appropriate so to proceed. The prosecution gave the appropriate notice in the present case. 18. Section 71 (1A) requires the court first to determine whether the offender has benefited from any relevant criminal conduct. Section 71 (1D) provides that relevant criminal conduct means offences of which the offender is convicted in the same proceedings, or offences which the court takes into consideration in determining his sentence. This is, however, subject to section 72AA(6). 19. Section 71 (1B) provides that, if the court determines that the offender has benefited from any relevant criminal conduct, it shall determine the amount to be recovered in accordance with sub-section (6), and make an order under section 71 ordering the offender to pay that amount. Section 71(6) provides that this sum shall be equal to the benefit in respect of which it is made, or the amount appearing to the court to be the amount that might be realised at the time the order is made, whichever is the less. 20. Thus the court in the present case had to determine the amount by which the appellant had benefited from his relevant criminal conduct; and the amount that might be realised at the time of the order; and order him to pay whichever was the lesser of these amounts. 21. By section 71(4) a person’s benefit, if he obtains property as a result of or in connection with committing an offence, is the value of the property so obtained. This means that the court is concerned with the gross value of property obtained and is not concerned, for instance, to deduct the cost of obtaining it. 22. By section 71 (7A), the standard of proof required to determine any question arising as to whether a person has benefited from an offence or the amount to be recovered is that applicable in civil proceedings. It is accepted that the burden of proof of the amount by which an offender has benefited is on the prosecution; but the burden of proving that the amount that might be realised is less than this is on the defence. 23. Since in the present proceedings the appellant did not give evidence or call witnesses, the likelihood of his establishing that his realisable property was less than any amount found as his benefit was not great. This was particularly so in the light of section 73A of the 1988 Act . Section 73A(2) provides that, for the purpose of obtaining information to assist it in carrying out its relevant functions, the court may at any time order the defendant to give it such information as may be specified in the order. Sub-section (3) provides that such an order may require all, or any specified part, of the required information to be given to the court in such manner, and before such date, as may be specified in the order. Sub-section (5) provides that, if the defendant fails, without reasonable excuse, to comply with any order under section 73A , the court may draw such inference from that failure as it considers appropriate. 24. The appellant was ordered on a number of occasions to provide information and a sworn affidavit. He eventually provided a response to the prosecutor’s statement, but no other information and no sworn affidavit. The court was, in our view, entitled to disregard the appellant’s short unsworn affidavit, just as it would have been entitled to place little weight on a sworn affidavit, if the appellant had provided one, but declined to be cross-examined upon it. 25. The central point here is that the appellant gave no evidence and called no witnesses. In particular, although Mr Nathan has emphasised the terms of the Proposed Basis of Plea, the prosecution had not accepted this for the confiscation proceedings. It was not evidence in the absence of the appellant giving evidence to support it. The court was entitled under section 73A(5) to draw such inferences from the appellant’s failure to comply with its orders as it considered appropriate. Such available inferences extended to inferences from his failure to give evidence. 26. Section 72AA applies to confiscation proceedings under section 71 , where the prosecutor’s notice contains a declaration, as it did in this case, that it is the prosecutor’s opinion that the case is one in which it is appropriate for the provisions of the section to be applied; and where (relevantly for present purposes) the offender is convicted of at least two qualifying offences. It is accepted that this appellant was so convicted in these proceedings. 27. Sections 72AA further provides: “ (3) When proceeding under section 71 above in pursuance of the notice mentioned in subsection (1)(a) above, the court may, if it thinks fit, determine that (subject to subsection (5) below) the assumptions specified in subsection (4) below are to be made for the purpose- (a) of determining whether the defendant has benefited from relevant criminal conduct; and (b) if he has, of assessing the value of the defendant’s benefit from such conduct. (4) Those assumptions are- (a) that any property appearing to the court- (i) to be held by the defendant at the date of conviction or at any time in the period between that date and the determination in question, or (ii) to have been transferred to him at any time since the beginning of the relevant period, was received by him, at the earliest time when he appears to the court to have held it, as a result of or in connection with the commission of offences to which this Part of this Act applies; (b) that any expenditure of his since the beginning of the relevant period was met out of payments received by him as a result of or in connection with the commission of offences to which this Part of this Act applies; and (c) that, for the purposes of valuing any benefit which he had or which he is assumed to have had at any time, he received the benefit free of any other interests in it. (5) Where the court has determined that the assumptions specified in subsection (4) above are to be made in any case it shall not in that case make any such assumption in relation to any particular property or expenditure if- (a) that assumption, so far as it relates to that property or expenditure, is shown to be incorrect in the defendant’s case; (b) that assumption, so far as it so relates, is shown to be correct in relation to an offence the defendant’s benefit from which has been the subject of a previous confiscation order; or (c) the court is satisfied that there would (for any other reason) be a serious risk of injustice in the defendant’s case if the assumption were to be made in relation to that property or expenditure. (6) Where the assumptions specified in subsection (4) above are made in any case, the offences from which, in accordance with those assumptions, the defendant is assumed to have benefited shall be treated as if they were comprised, for the purposes of this Part of this Act, in the conduct which is to be treated, in that case, as relevant criminal conduct in relation to the defendant.” 28. These provisions, indeed the provisions for confiscation as a whole, have been described as draconian. Their evident purpose is to enable the court to make orders depriving criminals of the proceeds of their crime when precise quantification of those proceeds may be very difficult. Section 72AA(3) gives the court a discretion (“… the court may, if it thinks fit, determine …”) to make assumptions for the purpose of determining under section 71 whether a defendant has benefited from relevant criminal conduct, and, if he has, of assessing the value of his benefit. The discretion in this sub-section is to be contrasted with the requirement to make equivalent assumptions in section 4(2) of the Drug Trafficking Act 1994 . This contains confiscation provisions for drug trafficking offences which are otherwise broadly equivalent to those in the 1988 Act for criminal conduct generally. 29. In the 1988 Act , the assumptions are that property held by the defendant at or after the date of his conviction, or transferred to him since the beginning of the relevant period, was received by him as a result of or in connection with the commission of relevant offences. The same applies to any expenditure of his since the beginning of the relevant period. By sub-section (5), if the court has determined to make these assumptions generally, it shall not do so in relation to particular property or expenditure, if the assumption is proved to be incorrect in the defendant’s case; or if the court is satisfied that there would be a serious risk of injustice if the assumption were made. It is accepted that the burden is on the defendant to establish for particular property or expenditure that the assumptions should not be made for these reasons. The effect of sub-section (6) is that, where the assumptions are made, the ambit of “relevant criminal conduct” for the purpose of section 71 (1D) is enlarged beyond the offences of which the defendant is convicted in the proceedings or offences taken into consideration in determining his sentence. As will be seen, it is accepted in the present case that, from 1 st January 1996 to 4 th November 2000, the appellant had established no income other than that derived from his criminal activities. Accordingly, if the assumptions were to be made, they could apply, subject to section 72AA(5), to his entire expenditure during that period and to all money in or transferred into his bank accounts during that period. The prosecution case 30. The relevant bones of the prosecution case as contained in the prosecutor’s statement and supported in evidence by DC Whittleston were as follows. 31. The most recent of the appellant’s 6 previous convictions was at Leeds Crown Court on 22 nd December 1994. He was then convicted of 13 offences contrary to the Trade Marks Act 1938 . He was sentenced to a total of 4 years imprisonment, subsequently reduced to 3 years on appeal. The court also made a confiscation order under the 1988 Act of £93,000 and a deprivation order of £35,255 under section 43 of the Powers of Criminal Courts Act 1973 . A receivership order was made to enforce these orders. We were told that they were paid. The appellant was released from prison on 15 th February 1996. 32. The relevant period for the purpose of the present confiscation proceedings began on 5 th November 1994 – 6 years before the appellant was first charged. But DC Whittleston restricted the period to one beginning on 15 th February 1996, the date when the appellant was released from prison. DC Whittleston concluded that the appellant had no legitimate source of income during this reduced relevant period. 33. The prosecutor’s statement proceeded on the assumptions in section 72AA of the 1988 Act . 34. There had been recovered from the appellant’s home address and one of the industrial units a total of £107,642.69 in cash. This was property held by the appellant within section 72AA(4)(a)(i) of the 1988 Act . 35. There was money found to have been lodged in four bank accounts within the relevant period amounting to £280,896.69. Of this, £245,213.72 related to an account with Banco Santander in Tenerife. The balance was in three accounts in England which were joint accounts of the appellant and his wife. These sums were property held by the appellant within section 72AA(4)(a)(i) of the 1988 Act . 36. DC Whittleston then calculated income from the sale of counterfeit perfume. Cheshire Services (UK) Limited had supplied 361,075 bottles for perfume or fragrances between January 1997 and November 2000. When the appellant was arrested, a total of 142,741 unsold bottles of counterfeit perfume were known to have been in his possession. From this, it was deduced that the appellant had sold “a minimum of 218,334 bottles of counterfeit perfume” within the relevant period. On the basis that a genuine bottle of perfume sold for approximately £40, DC Whittleston calculated a benefit of £8,733,360 (i.e. 218,334 @ £40 each.) This might have been treated as a directly calculated benefit under section 71 (1A). The prosecution in fact treated it as property transferred to the appellant under section 72AA(4)(a)(ii). 37. The total of the cash, the lodgement in banks and the calculated sale proceeds of the counterfeit perfume was £9,121,899.38. 38. DC Whittleston also made a very detailed investigation of the appellant’s expenditure during the relevant period. This was under 18 headings amounting to £810,698.14. This was expenditure of the appellant since the beginning of the relevant period within section 72AA(4)(b). Seven of the 18 headings broadly related to expenditure on the production of counterfeit perfume. The expenditure on these 7 items totalled £576,442.18, including just over £400,000 for the purchase of essences and empty perfume bottles and £25,755 for shipping of consignments. 39. DC Whittleston then made a calculation of the appellant’s “minimum known realisable assets”. This was initially subject to a substantial miscalculation of the value of some shares held at Banco Santander. After correction of this error, the total was £655,627.96. The largest component of this was the value of the equity in the appellant’s home in Leeds. The judge’s ruling 40. In his ruling of 17 th December 2002, the judge related the procedural history of the confiscation proceedings in explaining why he had refused a further adjournment. We have set this history out earlier in this judgment. He had heard evidence from DC Whittleston. The appellant had chosen not to call any evidence. The judge referred to the statutory assumptions. He had no evidence to contradict that of DC Whittleston. 41. It seemed to the judge that there were really only two issues. The first issue related to the calculated income from the sale of bottles of perfume. The appellant was not in a position to challenge the number of bottles sold (218,334). But he did challenge the price per bottle. The prosecution had taken £40 as the full market price of a bottle of genuine perfume. The price at which the appellant sold his counterfeit perfume was not this. The judge said that various hand written documents found by the police were likely to produce greater inaccuracy, but might suggest a figure of £4 per bottle. There was said to be a market price of £15 per bottle. The appellant had suggested a figure which the judge gave as £2.50 to £3.50 in his Proposed Basis of Plea. Other evidence might suggest a figure of £10 per bottle. 42. The judge concluded on the material before him that the appropriate figure was £5 per bottle. He had regard to the broad picture that the appellant was selling these items in bulk in a less than prestigious market place. This decision reduced the calculated minimum amount for the sale of counterfeit perfume to £1,091,670. This was the only reduction which the judge made from the prosecution figures. The reduced amount, with the other amounts for cash, lodgements in banks and expenditure produced the amount for which the confiscation order was made. 43. The second issue related to what was termed “double accounting”. Mr Hatton had submitted on behalf of the appellant that, since the appellant had established no other source of income than his criminal conduct, his income and his expenditure were the same. To aggregate them was counting the same thing twice. The submission seems to have been put, with reference to section 71AA(5) (c) of the 1988 Act on the basis that aggregation would result in a serious risk of injustice. 44. The judge was unable to say that aggregation would result in a serious risk of injustice. The appellant had been less than forthcoming in disclosing his financial position. He had repeatedly failed to comply with directions of the court relating to his financial position and had not put any evidence before the court to contradict the position arrived at by the application of the assumptions. 45. The judge then considered the amount which might be realised. He noticed that DC Whittleston had expressed the firm belief that the appellant had considerable undisclosed assets, especially real estate, in foreign jurisdictions. DC Whittleston had referred to recovered documents said to support this and to what appeared to DC Whittleston to be a bank code and a PIN number on paper sellotaped to the underside of a drawer at the appellant’s home. The judge regarded these as realistic suspicions in relation to the appellant’s failure to disclose his entire financial assets. An exchange of correspondence between the appellant and an unknown person contained a clear suggestion that the appellant had acquired property in Spain which it had not been possible to trace. The judge concluded that the appellant had failed to satisfy him that the amount that might be realised was less than the amount of his benefit. The judge accordingly made an unreduced confiscation order of the amount which he had determined to be the benefit. Grounds of appeal and submissions 46. Mr Nathan produced extended and, in some respects, diffuse amended grounds of appeal supported by a written skeleton argument, but he only pursued some of these grounds. We deal only with those grounds which he did pursue. His main general submissions were: a) that the amount of the confiscation order was unjustly large; and b) that practical justice did not require a confiscation order greater than the amount of the appellant’s identified realisable assets, which would in any event require him to sell his home. As to (b), the judge and this court are obliged to apply the statutory provisions. Beyond that, palm tree practical justice has no place. 47. The particular grounds of appeal which Mr Nathan pursued are that the judge’s decisions relating to (a) the sale price of a bottle of perfume; (b) double accounting; (c) the appellant’s realisable assets; (d) the term of imprisonment to be served in default of payment; and (e) costs were wrong. As to (a) to (c), Mr Nathan did not ask the court to take account of evidence which was not before the judge. But he submitted that there was no perfect evidential answer and that the court should do its best on the evidence before it. We do not consider that this properly characterises the task of this court. We are not the first instance court. Absent fresh evidence, which Mr Nathan does not seek to produce, this court’s task is to consider the grounds of appeal to determine whether the judge’s decision was in any respect wrong in law or in fact. Insofar as this may be regarded as an appeal against sentence, and insofar as the provisions of the 1988 Act provide for judicial discretion, it may also be for this court to determine whether the judge’s exercise of discretion was wrong in principle or manifestly excessive. But this is really no more than to re-express in different words the provisions of section 72AA(5)(c). Sale price of perfume 48. Mr Nathan submitted that the judge was wrong to determine a price greater than £2.75 to £3, as in the Proposed Basis of Plea. The prosecution evidence only referred to £40 per bottle, which was plainly wrong. The evidence given in September 2002 went no further than that of a Trading Standards Officer, Ruth Taylor, who produced a schedule to indicate that the street market value in England was between £10 and £15. The appellant’s case was that much of the perfume had been sold abroad at much lesser prices, but there was no evidence of this. 49. Mr Nathan said that, at the hearing on 16 th December 2002, the prosecution produced hand written documents out of the blue, when the appellant was unrepresented and unable properly to deal with them. We understand that the documents were from exhibits in the appellant’s trial, although they had not featured in DC Whittleston’s statement. The prosecution claimed that they indicated prices at which the perfume had been sold. Mr Nathan showed us some of them, submitting that some of these did not indicate prices for which the prosecution were contending; or that others could be dated to 1991 or 1994, outside the relevant period. Mr Nathan said that these documents should not have been taken as persuasive evidence of prices in excess of the £2.75 to £3 for which the appellant contended. There were documents showing that substantial sales were made at or about £3 per bottle. 50. Mr Kearl submits that the judge’s figure of £5 per bottle was entirely supportable on the evidence. Ruth Taylor’s material had been part of the original prosecution case summary. Mr Hatton had sought to explain some of the documents, including document 1419, which does appear to show prices for various counterfeit brands between £3.25 and £4 (except for Coco Channel at £5.10). Mr Kearl accepted that some of the documents suggested a figure of the order of £3 per bottle and that some of them appear to date from 1991 or 1994. That was some embarrassment. But he was not embarrassed to find a 1991 diary entry apparently showing prices between £4.25 and £5.50, when these were likely to have been greater at a later date. 51. Insofar as the appellant complains that the prosecution attempted to derive inaccurate information from documents which were sprung on him, the judge was not misled by this. He said that the various handwritten documents were more likely to produce greater inaccuracy. As to document 1419, he read it broadly in the way suggested by Mr Hatton (and by Mr Nathan before us) as suggesting a figure of £4 per bottle, and not as representing greater figures originally suggested by the prosecution. He noted Ruth Taylor’s evidence. 52. In our judgment, the judge was fully entitled on the evidence before him to determine a price of £5 per bottle. For this amount, he did not need to resort to section 73A(5) to draw inferences. The prosecution had called evidence which might have established an amount greater than £5. The appellant had called none. We reject this ground of appeal. Double accounting 53. Mr Nathan’s essential submission was that the judge was wrong to aggregate the appellant’s calculated income from the sale of perfume with his cash, the lodgements in banks and his expenditure. The probability was that income from the sales was, for instance, the same money which was lodged with Banco Santander; and that, since the appellant had no other income, income from sales was the same money as that which financed expenditure on the production of bottles of perfume. The calculation of benefit should not have taken this same money twice. Precisely how much double accounting there was could not be stated. But there plainly was some double counting which the court should in justice eliminate as best it might. 54. Mr Nathan put this submission in a number of ways with reference to the 1988 Act . First, he said that the income from sales of perfume was a direct benefit determined under section 71 (1A). There was no need or warrant to resort to section 72AA . Second, he said that the court has a discretion under section 72AA(3) whether to make assumptions and that the judge was wrong to exercise the discretion to do so in this case. Third, he said that there would be serious injustice within section 72AA(5)(c) if the assumptions were applied without modification to eliminate double accounting. Fourth, he submitted that the assumptions in relation to particular property or expenditure were incorrect in the appellant’s case under section 72AA(5)(a). 55. We do not consider that the judge was wrong to proceed by way of assumptions under section 72AA . The conditions for the application of the section were fulfilled. The prosecution were entitled to seek to bring the income from the sale of perfume within the section 72AA(4)(a)(ii) as a route to inviting the judge to determine the appellant’s benefit under section 71 (1A), although an assumption was scarcely necessary here, since the appellant did not contend that this income was legitimate. Even if this element of the determination had been made directly under section 71 (1A), that did not prevent the court from making statutory assumptions in relation to other property or expenditure. Since the appellant had no legitimate income, the assumptions on the face of it applied to all his expenditure within the relevant period, and also to the cash and the bank lodgements. 56. We do, however, accept that it was in principle open to the appellant to contend, for instance, that some or all of the cash or the money lodged with Banco Santander or that some or all of the expenditure probably derived directly from the sale of the 218,334 bottles of perfume at £5 per bottle, and therefore represented the same money. To the extent that the court was persuaded on the evidence that this was probably so, it could then decline to make the statutory assumption in relation to it under section 72AA(5)(c), if satisfied that otherwise there would be serious injustice. The burden was on the appellant to establish this. The question for the judge was whether he discharged this burden. The appellant was in difficulties in trying to do so, when he had not given or called evidence. He was also at risk of adverse inferences under section 73A(5) . 57. Mr Kearl reminds us that this is and is intended to be draconian legislation. He accepts the possibility that there might be some double counting here. The prosecution do not know whether any property or expenditure did or did not represent the same money as the income from the sale of 218,334 bottles of perfume. The only person who knows where the money came from and went is the appellant. He chose not to give evidence, thus protecting himself, as he was entitled to do, from cross-examination. 58. The appellant, through Mr Nathan, in effect attempted to persuade the court that the income from the sale of the 218,334 bottles of perfume represented the appellant’s entire benefit from criminal activity. Mr Kearl submitted that this was not so. Counterfeit perfume was the subject of only one of the three counts of the indictment to which he pleaded guilty. Section 72AA had the effect of enlarging the potential compass of relevant criminal conduct beyond the offences to which he pleaded guilty. The prosecution evidence explicitly put the 218,334 bottles as a minimum. This approximated to the number in the appellant’s unsupported Proposed Basis of Plea, but Mr Kearl referred to a Mr Corley as having stated that he had received 3 to 400,000 bottles from the appellant in the previous five years. 59. In our judgment, the appellant’s double accounting case rests on a premise which he did not attempt to establish by evidence, that is that the income from the sale of the 218,334 bottles was all or most of his benefit from relevant criminal activity during the relevant period. It was not on any view his entire benefit. It may not have been his entire benefit by a very large margin. As Mr Kearl said, only he could tell, and he chose not to try to do so. The judge would have been speculating if he had concluded that there was double accounting and, if so, by how much. Speculation of this kind from assertions unsupported by evidence does not, in our view, discharge in this case the burden of proof which was on the defendant. In these circumstances, we agree with Mr Kearl that the product of the assumptions should not be reduced. The judge was entitled to conclude that there was no serious risk of injustice in applying the assumptions in full. He had no secure evidential basis for concluding otherwise. We reject this ground of appeal. The appellant’s realisable assets 60. Mr Nathan accepts that the burden is on the appellant to show that his realisable assets are less than the determined benefit. He submitted that, where a person has been the subject of two substantial investigations for confiscation purposes, the court was entitled to find that his discovered assets represent his entire realisable assets. What has been unearthed by the prosecution is likely to be right, unless there is some compelling reason to reach a different conclusion. 61. Mr Kearl submitted that the judge was entitled to reach the conclusion that he did. The realisable assets which the prosecution unearthed were stated to be the minimum. There were proper grounds for suspicion that the appellant had other property in Spain and at least one undisclosed bank account. 62. In our judgment, the appellant simply did not attempt to discharge the burden on him to show that the disclosed assets were his only realisable assets, or that his true realisable assets were less than the determined benefit. He was wide open here to adverse inferences from his failure to give evidence and under section 73A(5) . But in truth inferences were unnecessary. There was no evidential basis on which the judge could have concluded that his realisable assets were less than the determined benefit. We reject this ground of appeal. Individual items 63. Mr Nathan made short submissions challenging some of the individual items which made up the total for expenditure of £810,698.14. 64. Purchase of empty perfume bottles . The calculated amount was £163,867.02. This was the product of 154,956 empty bottles which a Mr McLuckie did not supply at £10,575 per 10,000. Mr McLuckie is a director of Cheshire Services (UK) Limited, the company that supplied the 218,334 bottles which feature earlier in this judgment. The price per 10,000 came from an invoice dated 16 th December 1998 from Jean Cristian for “Blank bottles sold as clearance” for which the purchaser paid cash. The invoice was produced by Mr Coleman of Jean Cristian Perfumes Limited, who stated that he had supplied bottles to the appellant on four or five occasions over a two year period from December 1998. The appellant historically challenged the information from Mr McLuckie, but Mr Nathan did not persist in a contention that he should have been called to be cross-examined. It was suggested that Mr Coleman’s statement was inadmissible. Mr Nathan’s main point was that the price should have been no greater than 31p per bottle – this derived from a document exhibited by the prosecution. There was cross-examination indicating that the 31p per bottle was not the only cost component. In our view, the prosecution and the judge were entitled to proceed on the higher price substantiated by the Jean Cristian invoice in the absence of any evidence from the appellant. 65. Shipping of Consignments . The calculated amount was £25,755.73. Of this, £1,002.00 related to shipments by Hellman Worldwide Logistics. The consignee was Priest & Co at the appellant’s address. Mr Nathan’s point appears to be that there was no evidence that the costs were paid by the consignee. Other deliveries had been arranged by Mr Corley from Spain. Mr Kearl points out that the Hellman invoices were addressed to Priest & Co and payment was made in England. In the absence of evidence from the appellant, we consider that the judge was entitled to conclude that the appellant paid these costs. 66. Counterfeit compact discs . These were recovered from the three industrial units when the appellant was arrested. The calculated amount was £16,146.30. The appellant did not accept that these items were his. The count on the indictment in relation to them was not proceeded with, it being left on the file. The prosecution were entitled to include this item of expenditure under section 72AA(4)(b). The compact discs came within section 72AA(6) as the product of relevant criminal conduct, notwithstanding that the charge in relation to them remained unadjudicated. The appellant did not give evidence to establish his case. 67. Purchase of jewellery, paintings and antiques . The calculated total was £25,543.00. The appellant’s case was that a clock, a statue and perhaps one or more paintings were acquired outside the relevant period. There were some auction documents indicating this as a possibility, but the appellant did not give evidence to substantiate his case. Costs 68. Mr Nathan submits that a costs order should not be made where the confiscation order will deprive an appellant of his entire realisable assets. We accept the principle, but we have no basis for concluding that it would apply in the appellant’s case. Our reasons are the same as those under the ground of appeal relating to the appellant’s realisable assets. We reject this ground of appeal. Period of imprisonment in default of payment 69. We accept that the 10 year default period determined by the judge was on the erroneous basis that 10 years is a mandatory maximum for the amount of this confiscation order. We shall reduce the period below 10 years to a period which we will determine after the appellant has had the opportunity, through junior counsel, of making short submissions in the light of the rest of this judgment. We are prepared to determine this question on written submissions without a substantive oral hearing, if the appellant is content for us so to proceed. Our provisional view is that the period should exceed 5 years. Conclusion 70. We shall therefore allow the appeal in relation to the default period and substitute a lesser period than 10 years after receiving submissions after this judgment has been handed down. Otherwise this appeal is dismissed for the reasons given in this judgment. ----------------------- LORD JUSTICE MAY: A matter arises in Priestley, does it not? MR BUELIANAN: My Lord, it does, in relation to the period of 10 years' imprisonment in default. LORD JUSTICE MAY: I have read Mr Nathan's very helpful short further submissions on that subject. As you know the constitution of the court currently sitting is not the constitution which heard the appeal and my present view is that it is not possible for me alone to determine this question of the default period, without at least consulting the other two members of the constitution, because Mr Nathan raises a point, if not two, which they have not considered, I can tell you that for the moment, and which it is appropriate that they should before we as a constitution decide the matter. Is there any other solution than that it should go over? MR BUELIANAN: My Lord, I entirely agree with my Lord. LORD JUSTICE MAY: I am afraid that is the case. When that has been done, is it your view that it is necessary to have another oral hearing or would the appellant be content if we communicated a decision in writing? MR BUELIANAN: I am sure he would. I have spoken to Mr Nathan who has indicated that he does not wish to add any oral argument to the submissions that the court already have. LORD JUSTICE MAY: In that case what I will do is I will consult with the other two members of the court. I will discuss with them not only generality but this submission that is put before us and we will communicate a decision. It will have to be given in open court but there is no need for attendance unless you actually want to. Very well. Does anything else arise? MR BUELIANAN: No, thank you.

2004_08_26-318.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/2237/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/2237

b088e029a335e96aee4575a20ee580eb3f2c3101390967223a077748517f6a16

[2010] EWCA Crim 927

EWCA_Crim_927

2010-05-11

supreme_court

Neutral Citation Number: [2010] EWCA Crim 927 Case No: 200905547C5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 11/05/2010 Before : Lord Justice Hughes Mr Justice McCombe and Mrs Justice Sharp DBE - - - - - - - - - - - - - - - - - - - - - Between : Regina Appellant - and - W, C and C Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Gary Lucie and Malcolm Galloway (instru

Neutral Citation Number: [2010] EWCA Crim 927 Case No: 200905547C5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 11/05/2010 Before : Lord Justice Hughes Mr Justice McCombe and Mrs Justice Sharp DBE - - - - - - - - - - - - - - - - - - - - - Between : Regina Appellant - and - W, C and C Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Gary Lucie and Malcolm Galloway (instructed by the Environment Agency) for the Appellant Geoffrey Mercer QC and Jonathan Barnes (instructed by Waters & Barbary) for the Respondent PC, Geoffrey Mercer QC and Michael Melville-Shreeve (instructed by Waters & Barbary), for the Respondent TC and Joss Ticehurst ( instructed by Howell Hylton) for the Respondent W Hearing date: 18 March 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice McCombe: 1. In October 2009 in the Crown Court, the respondents stood trial on an indictment charging each with four offences of knowingly permitting the deposit of controlled waste contrary to section 33(1)(a) and (6) of the Environmental Protection Act 1990 (“ the Act ”) (counts 1 to 4) and one offence of disposing or keeping of controlled waste contrary to section 33(1)(b)(i) and (6) of the Act (count 5). On Friday, 9 October 2009, at the close of the Crown’s case, the learned judge heard submissions on behalf of the respondents that there was no case for any of them to answer. The judge acceded to those submissions and the Crown applies to this court under section 58 of the Criminal Justice Act 2003 , for leave to appeal against that decision. We grant leave. 2. The prosecution arose from the deposit at a farm of a large quantity of materials, extracted principally from neighbouring farm land in the course of construction on that land of new hotel premises. The materials consisted in large measure of soil and subsoil excavated during the works. The deposits occurred in the period between October 2007 and February 2008. The respondents, TJC and PAC, are the owners of the farm onto which the materials were deposited; the respondent W is the manager of the site. The prosecution claimed that they were able to identify at least 648 lorry loads of materials amounting to some 9126 tonnes that had been deposited onto the land owned by TC and PC and managed by W. It was common ground that no waste management licence under the Act had been obtained in respect of these activities. The Crown’s case was that the materials constituted “controlled waste” within the meaning of the Act and that the tipping of it onto the land and its presence on it thereafter, without the issue of the relevant licence, constituted the deposit of such waste and the disposal of and keeping of it contrary to the provisions of the Act to which we have referred. There was evidence that the respondents had been paid some £20,000 to £25,000 to receive the materials onto their land. 3. The defence case that was to be presented, and which was known to the judge when he made his ruling, was that the receipt of the material was for the purpose of creating an area of hard standing for the extension of the farm facilities and the construction of a new farm building on top of it. It appeared from the Crown evidence that the materials had in fact been used to create a horizontal platform of some 100 x 60 metres, extending outwards in a wedge form from the naturally sloping land, with a vertical elevation of about 15 metres at its highest point. 4. Material to the Crown case, for reasons to which we shall return, was that the farm is set in an area of substantial scenic beauty in a Special Area of Conservation, within the highest category of such designation in European Union terminology. In late November 2007 public authorities became aware of the tipping activities at the farm site. A letter was written by the parish council to the County Council about them. A monitoring officer employed in the Minerals and Waste Planning Unit of the County Council visited the farm on 29 November 2007. He expressed the written view that the operation being undertaken did not have waste disposal as its primary objective but rather that it was an engineering operation and he advised all concerned that he would not be taking any further action but would leave it to the appropriate, i.e. planning authority. That was the District Council. The planning officer of the District Council visited on 14 December 2007. The opinion that he expressed at the time was that the activity was “permitted development” for planning purposes, within the meaning of the Town and Country Planning (General Development) Order. On 6 February 2008 officers from the Environment Agency (“the Agency”) attended; they took the view that the activity required a waste management licence under the Act and the respondent W was informed of this shortly thereafter by telephone and by letter. On 18 March 2008 the same planning officer from the District Council who had attended in December visited the site again. Following this visit the defendants were advised that the activity did after all require planning permission as an engineering operation. The defendants were advised that the substantial alteration to the ground was regarded as visually intrusive, but that it was open to them to make a retrospective application. By the time the prosecution was commenced, no such application had been made. 5. On 1 April 2008 the Agency received from the respondents an application for an exemption from the licensing requirements of the Act . Further information supplied by the respondents to the Agency thereafter stated that the object of the activity was to raise the level of the land to permit the building of a cattle shed. The application stated that 2500 tonnes had been deposited whereas waste transfer notes obtained from the haulage companies, following service on 13 February 2008 of notices under Section 34 of the Act , indicated that some 7000 tonnes had been deposited. 6. Proceedings were taken against the haulage contractors for depositing controlled waste contrary to the Act and they pleaded guilty to the charges. Those convictions were not, however, adduced in evidence in the present case pursuant to sections 74 and 75 of the Police and Criminal Evidence Act 1984 . 7. On 16 May 2008 the respondents were interviewed by officers from the Agency. In those interviews the respondents W and PC informed the officers that the bulk materials had come from a farm where digging operations had been carried out to construct foundations for a new hotel. Following those interviews the respondents were charged with the offences for which they came to be tried in the Crown Court. 8. The relevant provisions of the Act are as follows. Section 33 of the Act provides: “ (1) Subject to subsection (2) and (3) below [subsections (1A, (1B), (2) and (3) below] and, in relation to Scotland, to section 54 below, a person shall not – (a) deposit controlled waste, or knowingly cause or knowingly permit controlled waste to be deposited in or on any land unless a waste management licence [an environmental permit] authorising the deposit is in force and the deposit is in accordance with the licence [the permit]; (b) treat, keep or dispose of controlled waste, or knowingly cause or knowingly permit controlled waste to be treated, kept or disposed of – (i) in or on any land (ii) by means of any mobile plant, Except under and in accordance with a waste management licence; … (6) A person who contravenes subsection (1) above or any condition of a waste management licence commits an offence.” Section 75 of the Act supplies these definitions: “(2) “Waste” means any substance or object in the categories set out in Schedule 2B to this Act which the holder discards or intends or is required to discard; and for the purposes of this definition – “holder” means the producer of the waste or the person who is in possession of it; and “producer” means any person whose activities produce waste or any person who carries out pre-processing, mixing or other operations resulting in a change in the nature or composition of this waste (3) … (4) “Controlled waste” means household, industrial and commercial waste or any such waste. (6) Subject to subsection (8) below, “industrial waste” means waste from any of the following premises - … (e) … any premises used for agriculture within the meaning of the Agriculture Act 1947] . (7) Subject to subsection (8) below, “commercial waste” means waste from premises … used wholly or mainly for the purposes of a trade or business excluding - … (b) industrial waste; [and] … (d) waste of any other description prescribed by regulations made by the Secretary of State for the purposes of this paragraph. (8) Regulations made by the Secretary of State may provide that waste of a description prescribed in the regulations shall be treated for the purposes of provisions of this Part prescribed in the regulations as being or not being household waste or industrial waste or commercial waste; … and references to waste in subsection (7) above and this subsection do not include sewage (including matter in or from a privy) except so far as the regulations provide otherwise. ” 9. On these facts, two submissions were made by the respondents to the judge. First, it was argued that the Crown had failed to establish that the material deposited was “waste”, let alone “controlled waste”. Secondly, it was argued that, if the Crown had made out a sufficient case for the jury that the material was “waste”, then it had failed to make out a sufficient case that it was “controlled waste”. The judge accepted both these submissions. 10. The judge enunciated certain “basic points” in paragraph 9 of his careful judgment: “Now before I go further some basic points fall to be made. The first is that material can start as waste but cease to be waste. Secondly, its status as waste or not falls to be re-determined according to who, from time to time, is its “holder”. Assuming for my current purposes the accuracy of my hypothesis that the material in this case emanated from various building sites then at the time that it was excavated its holder would have been the person who had produced it or had possession of it (perhaps the owner of the site or the building contractor). As it was being carried from those sites in lorries the haulier would become its holder. When deposited on the [C] land the holders would become the [C] brothers and possibly [W]. The moment that deposit takes place, the issue of whether it is material that the holder discards or intends or is required to discard is an issue that must be applied to the new holders, say the [C] brothers. This is an analysis with which Mr Galloway, counsel for the Environment Agency, took no issue.” 11. He then set out the names of and references to the six cases to which he had been referred from which he proceeded to set out some “general propositions” that could be gathered. Those propositions were these: “First there is the proposition that waste (and therefore discard) should not be interpreted restrictively and its interpretation should take account of EU directive objectives (primarily the protection of human health and the environment). Second, the fact that a material had been subject of a production or recovery process did no[t] conclusively establish that it is or is not waste. Waste includes substances discarded by their owners even if they are capable of economic re-utilisation or have a commercial value. Waste does not cease to be waste simply because it has come into the hands of someone who intends to put it to a new use but that is because the aims of the Directive require that it continue to be treated as waste until acceptable recovery or disposal has been achieved. The courts have not established any criteria to establish what this means.” 12. The judge said that the Crown’s case was opened on the basis that the respondents were motivated simply by the desire to make money from the tipping operations. On this appeal, Mr Galloway for the Crown takes issue with that formulation of his submissions to the judge and jury in opening the case. We think that the “money motive” has little if anything to do with the issues before us. However, the judge held that the Crown evidence, from the planning officials, to the effect that this was an engineering project for the purpose advanced by the respondents and the division of the funds between them, leaving funds that “were not so large as to spell a simple profit motive, [left] the opening contention of the Environment Agency in tatters”. It seems clear to us that the Crown’s case for saying that this material was waste went much further than a case based simply on the payments made to the respondents by the tippers. 13. The judge went on to consider the functions of judge and jury in the case. He held, in our view correctly, that in a prosecution under section 33 it is a matter for the judge to determine whether the material in issue is capable of being “controlled waste” within the meaning of the Act and that, if so, it is then for the jury to decide whether it is in fact “controlled waste”. 14. The crux of the judge’s decision on the first defence argument is to be found in paragraph 18 of his judgment in the following passage: “Is the material deposited at [T] Farm capable of being regarded as waste? The incontrovertible evidence is that it was received onto the farm for a specific purpose which was immediately put into effect. It represented a valuable commodity to the [C] brothers, not in itself a conclusive matter but nonetheless a pointer against it being waste. Despite the gloss put on the normal meaning of “discarded” by the European jurisprudence it is not such as to rob the word of all its natural meaning. There is not the slightest element of “discarding” in the use to which the Defendant put the material immediately upon its deposit. In a sense this is a case that is far more Inglenorth than Palin Granit. In the latter there was only a potential use for the material at some undetermined future date. In the former the use intended was immediate. Notwithstanding this analysis of the situation, can it be said that the material falls foul of the principle once waste remains such until acceptably disposed of or recovered? Well, this contention does not get off the ground unless the Prosecution can prove that the material in the instant case was once waste. This, in a sense, may go to the second submission but assuming for a moment that the Prosecution had proved it was waste once, this leads onto a consideration of what acceptably disposed of or recovered means. No court, so far as I am aware, has provided any criteria to judge this issue against. I simply content myself with saying that I anticipate it may mean recovered or disposed of in a way which meets the aims of the waste directive. Mr Galloway contends that it means that the material must be used lawfully e.g. not in breach of planning control. I am not satisfied that it does bear that meaning.” From this he concluded that the first submission succeeded. 15. The judge’s conclusion on the second defence submission, which he held also succeeded, was this: “I cut short what could be a very long story by saying that if the Prosecution established by evidence that it was material excavated from building sites e.g. to create holes in which foundations could be formed, then it would at least be capable of being controlled waste. The question is whether the Prosecution has established this. The evidence of witnesses who observed the material once deposited at [T] Farm will not do. This is because soil and subsoil is capable of either being waste or not dependant on its source. What the Prosecution relies upon is the evidence from waste transfer notes produced from hauliers to the farm which in some cases contain details of the site from which the material came and in other cases contains a categorisation of the material defining it as waste. The relevant legislation makes the waste transfer notes admissible in evidence. The point at issue is whether without more they prove anything. At their height they would be evidence of the opinion of hauliers that the material being carried was controlled waste. It must be remembered that it would have been simple enough for the Prosecution to secure evidence from the operators of sites from which the material came, evidencing the process by which the material was produced. No such evidence was secured. In my judgment what has been obtained does not amount to any evidence that could enable a jury to find that the material that was loaded onto the haulage lorries was controlled waste.” 16. In the result the defence submission of no case was accepted and this appeal is now brought against that decision. 17. On the appeal, it is argued by Mr Lucie and Mr Galloway for the Crown that the judge was wrong in his conclusions on each of the defence arguments. On the first submission, it is said that the judge erred in finding that the offence had to be judged at the time when the materials came into the possession of the respondents and when, accordingly, they became “holder”(s) of it, and not at the time when the deposit was effected by the hauliers, which was the moment at which the permitting and/or causing of the deposit fell to be decided. It is further argued that “waste” does not cease to be such simply because the recipient has a use for it; it is still waste until acceptable recovery or disposal has been achieved; the ruling contravened the aims of the Waste Framework Directive; the material would have been commonly regarded as waste and was not subjected to any recovery operation before being simply pushed into place for its new use. 18. On the second argument, the Crown contends that, if this material was capable of being waste, the ruling failed properly to construe and apply section 75 of the Act , failed properly to assess the admissions made by each respondent in interview and a letter written by JC and PC on 4 April 2008 as to the provenance of the material, together with the evidence of the waste transfer notes. All this, say the Crown, was quite sufficient evidence of the material being controlled waste. 19. The Act represents the United Kingdom’s transposition of the European Union’s Waste Framework Directive (at the relevant time Directive 2006/12/EC). In particular, section 75(2) reproduces, effectively verbatim, the words of Article 1 of that Directive. The recitals to the Directive make clear its objectives. In particular, recital (2) provides: “(2) The essential objective of all provisions relating to waste management should be the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste.” 20. The law in this area has been the subject of a number of decisions, the most relevant of which were those to which the learned judge was referred. Some of the decisions are those of the European Court. Of these, after an extensive review, Carnwarth LJ has said that, “a search for logical coherence in the Luxemburg case law is probably doomed to failure” (see R (OSS Group Ltd.) v Environment Agency & ors [2007] EWCA Civ 611 – a case which we shall call “ OSS ”). 21. In OSS Carnwarth LJ, giving the main judgment of the Civil Division of this court (and with whom Sir Anthony Clarke MR (as he then was) and Maurice Kay LJ agreed) identified the following points emerging from the cases in the European Court: “i) The concept of waste “cannot be interpreted restrictively” ( ARCO para 40) ii) Waste, according to its ordinary meaning, is what falls away when one processes a material or an object, and is not the end product which the manufacturing process directly seeks to produce” ( Palin Granit Oy para 32). iii) The term “discard” “covers” or “includes” disposal or recovery within the terms of Annex IIA and B ( Wallonie para 27; ARCO para 47); but the fact that a substance is treated by one of the methods described in those Annexes does not lead to the necessary inference that it is waste ( ARCO para 48-9). iv) The term “discard” must be interpreted in the light of the aims of the WFD, and of art 174(2) of the treaty, respectively: a) The protection of human health and the environment against the harmful effects caused by the collection, transport, treatment storage and tipping of waste; and b) Community policy on the environment, which aims at a high level of protection and is based on the precautionary principle and the principle that preventive action should be taken ( Palin Granit OY para 23). v) Waste includes substances discarded by their owners, even if they are “capable of economic reutilisation” ( Vessoso & Zanetti [1990] ECR I-1461 para 9) or “have a commercial value and are collected on a commercial basis for recycling, reclamation or re-use” ( Tombesi para 52). vi) In deciding whether use of a substance for burning is to be regarded as “discarding” it is irrelevant that it may be recovered as fuel in an environmentally responsible manner and without substantial treatment ( ARCO para 73). vii) Other distinctions, which may be relevant depending on the nature of the processes, are – a) between “waste recovery” within the meaning of the WFD and “normal industrial treatment” of products which are not waste (“no matter how difficult that distinction may be”) ( Wallonie para 33); b) between a “by-product” of an industrial process, which is not waste, and a “production residue”, which is ( Pallin Granit Oy paras 32-37 – see further below).” (The shortened names of the cases in that passage are references to Palin Granit Oy [2002] ECR I-4475; ARCO Chemie Nederland v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer [2002] QB 646 ; Inter-Environnement Wallonie ABSL v Region Wallonne [1997] ECR I-7411; Tombesi [1997] ECR I-3561.) 22. After further analysis of these cases and immediately after his comment on the “logical coherence” (or otherwise) of them, Carnwath LJ said this, “A fundamental problem is the court’s professed adherence to the art 1(a) definition, even where it can be of no practical relevance. The subjective “intention to discard” may be a useful guide to the status of the material in the hands of the original producer. However, it is hard to apply to the status of the material in the hands of someone who buys it for recycling or reprocessing; or who puts it to some other valuable use. In no ordinary sense is such a person “discarding” or “getting rid of” the material. His intention is precisely the opposite. Understandably, the court has held that a material does not cease to be waste merely because it has come into the hands of someone who intends to put it to a new use. But that should not be because it still meets the art 1(a) definition in his hands; but rather because, in accordance with the aims of the Directive, material which was originally waste needs to continue to be so treated until acceptable recovery or disposal has been achieved. Unfortunately the court has consistently declined invitations to develop workable criteria to determine that question. Instead, it continues to insist that the “discarding” test remains applicable, even where the “holder” is an end-user such as Epon, whose only subjective intention is to use, not to get rid of, the materials in issue.” He concluded the discussion of the cases as follows: “In other words, although the court continues to play lip-service to the “discarding” test, in practice it subordinates the subjective question implicit in that definition, to a series of objective indicators derived from the policy of the Directive. What is required from the national court is a value judgment on the facts of the particular case in the light of those indicators.” 23. OSS, like Arco, the Scottish case of Scottish Power Generation Ltd. v Scottish Environment Protection Agency 2005 SLT 98 and the case in the Dutch Statlijke Rad of Icopower BV v Secretary of State (14 May 2003), considered in OSS , were all cases concerning combustible fuels extracted or created from unused oils or extracted from manufacturing processes. The narrow decision in OSS was an affirmative answer to the question “…whether a lubricating oil, thus not originally used as fuel, which becomes waste can thereafter be burnt other than as waste” (see paragraphs 4 and 70 to 72 of the judgments). 24. Although the underlying principles setting the legal characteristics of waste remain the same here as in the “fuel” cases, the practical application of the legal tests to the facts appear more readily perhaps from other decisions relating to materials more like those involved in this case. Two cases, in the courts of England and Northern Ireland respectively, which were cited to us, have been concerned with the recovery and re-use of materials more akin to those with which we are concerned here. 25. In Department of the Environment and Heritage Service v Felix O’Hare & anor. [2007] NICA 45 , the Court of Appeal in Northern Ireland was concerned with soil and clay removed from a playing field site in advance of building work by the first respondent and subsequently removed by the second respondent to land belonging to a third party for the purpose of erecting a windbreak on the third party’s land. The building contractor and the excavation contractors were charged with offences relating to the deposit of controlled waste, contrary to the Northern Irish legislation equivalent to the present English Act. The recipient of the materials was not a defendant in the proceedings. 26. After a review of the cases in the European Court and in this country, Girvan LJ set out the following principles: “(i) The word “discard” when read in the light of the language texts of the Directive points to the concept of getting rid of an unwanted object or substance (see in particular the judgment of Carnwath LJ in R(OSS Group Ltd v Environmental Agency [2007] EWCA Civ 611 and the judgment of Butler-Sloss LJ in Cheshire County Council v Armstrongs Transport (Wigan) Ltd [1995] Crim LR 162. (ii) A rational system of control points to the conclusion that the categorisation of materials as being waste or not being waste depends on the materials qualities and not on the qualities of their storage or use even if the storage and use is environmentally safe. (See Castle Cement Ltd v Environmental Agency & Lawther per Stanley Burton J. (iii) The nature of the material has to be considered at the time of its removal from the original site ( Kent County Council v Queensborough Rolling Mills Co Ltd [1990] 154 JP 442 ). (iv) The definition of waste in the act must be taken from the point of view of the person disposing of the material [ Long v Brooke [1980] Crim LR 109). (v) Excavated soil is capable of being waste. Whether or not it is in any given case is a question of fact to be determined on the evidence adduced ( Ashcroft v McErlain Ltd QB Eng 30 Jan 1985). ” He concluded that the deposited materials were “controlled waste” within the meaning of the Northern Irish legislation and said this: “On the undisputed evidence before the Resident Magistrate there was, however, only one logical conclusion to reach, namely that the soil did constitute controlled waste. In the course of carrying out the works on the land beside the school preparing the site for the construction of the extension soil had to be removed. Traditionally soil and stones would not be regarded as waste material and frequently will not in fact be waste. However this soil when excavated represented material which had to be disposed of in some manner. It had to be got rid of or, in the terms of the Directive, “discarded”.” 27. In Environment Agency v Inglenorth Ltd. [2009] EWHC 670 (Admin) , the court was concerned with materials left over from the demolition of a greenhouse at a garden centre, some of which was intended to be reused by the owner for business purposes at another garden centre owned by him on a different site. The materials included breeze blocks, concrete, tiles, brick, clay pipe and clay. The defendant in the proceedings, Inglenorth, transported 20% of the material to the owner’s second site. It was charged with failing to take reasonable measures to prevent the contravention by another of section 33 of the Act , in failing to inform that other of the need for a waste management licence in order to deposit controlled waste at the second site, contrary to section 34 of the Act . 28. The Divisional Court (Sir Anthony May P and Dobbs J) held that the materials deposited at the second site were not waste within the meaning of the Act . The final paragraph of the President’s judgment was in the following terms: “In my judgment those findings of fact entirely support the decision that the Justices came to that upon its deposit at the Cheadle Garden Centre this material was not waste. It was no more waste when it was delivered to the Cheadle site upon those findings of fact then would be hardcore delivered to my drive for me to use to mend the drive or to use as a subbase for my garage floor for concrete to be put on top of it. It may well be that this material was waste when it was at Standish but, given the findings of fact by the Magistrates, it was not waste and they properly so found upon its delivery to the Cheadle Garden Centre.” 29. The President said this of the decision in O’Hare : “It is certainly correct that that case has quite close similarities with the present one but, apart from the fact that it is in a different jurisdiction, there are these important differences. First, that from the sentence from paragraph 16 that I have just read out, the court concentrated on what the material was when it was excavated and had to be got rid of and, secondly, and importantly, that so far as I can see the court did not have in that case the kind of findings of fact which we have in the present case by the Stockport Magistrates.” Returning to the case before him the President made two points, as follows: (in this passage “Mr Evans” was the owner of, or perhaps the controlling mind of the company which owned, the two sites in question) “No doubt if it were Mr Evans that was being prosecuted that would be a question which might arise and might or might not have been decided in his favour or against him. Two things, however, arise in the present case. First, as Mr McCullough accepted, immediate use cannot be taken literally. As for example, if material is deposited at a site intending it to be used straight away for building operations, if it is not used straight away, because, for instance, the weather is bad and prevents building operations; or other and different material is required to be delivered first before this material can be used; or machinery has to be brought on to the site before it can be used and there is some delay before it is brought to the site; any of these examples would not, depending on the facts, prevent the material from being reused immediately, if that is the expression that needs to be addressed. The distinction in my judgment must be between depositing the material for storage pending the proposed reuse and depositing it for use more or less straight away without it being, in any sensible use of the word, stored. Depending always on the facts, hardcore which is going to be used next week for current building operations is not being stored.” 30. Before stating his conclusion on the case in paragraph 38 of the judgment which we have already quoted, the President said this: “It may well be, and it does not matter, that the material was or was capable of being waste after it had been produced by the demolition exercise of the Standish site and before it was removed for use elsewhere. If it had been taken to a waste disposal site straight from Standish, no doubt it would have been waste throughout that operation. But the question, and in my judgment the only question in the present case in relation to the informations brought against Mr Campbell in the terms in which they were, is whether this was waste when it was deposited at the Cheadle site. Upon the Justices’ findings of fact, at that stage Mr Evans, and I am quoting from the case: “… had no intention of discarding the material. The product would be used as hardcore material for the purpose of making up a car park at the Cheadle site. That intention was not a mere possibility, but was one clearly formed by Mr Evans shortly before or before the demolition of the greenhouse.” And, I would add, that intention was, upon the Justices findings, communicated to Mr Campbell and they further found that the material was a valuable commodity intended for immediate use. In my judgment, those findings of fact entirely support the decision that the Justices came to that upon its deposit at the Cheadle Garden Centre this material was not waste. It was no more waste when it was delivered to my drive for me to use to mend the drive or use as a subbase for my garage floor for concrete to be put on top of it. It may well be that this material was waste when it was at Standish but, given the findings of fact by the Magistrates, it was not waste and they properly so found upon its delivery to the Cheadle Garden Centre.” Dobbs J agreed with the judgment of the President. 31. The respondents in the present appeal not unnaturally relied heavily upon Inglenorth , as they did before the judge. They submitted that the immediate re-use of the deposited materials took them outside the definition of “waste” in the Act , since that removed the element of “discarding” which the European Court has consistently adopted as the touchstone of the definition of waste. 32. Given the findings of fact in Inglenorth and (importantly) the nature of the materials involved, we consider, as did Sir Anthony May and Dobbs J, that the material deposited at the second site, at the only moment that it mattered for the purpose of the prosecution in that case (namely the date of the deposit itself), could properly be considered not to be waste within the meaning of the Act . 33. However, we do not take the view that the question of immediate re-use of the relevant material can be entirely determinative of the status of the material regardless of other considerations. Sir Anthony May’s example of hardcore delivered for the immediate invisible repair of a domestic driveway may be one thing, but (by way of further example) the piling up of hardcore and subsoil, which was waste in the hands of the party who extracts it from the land, for the construction an intrusive artificial ski-slope on someone else’s land may well be another. As Girvan LJ said in O’Hare such material may well remain as waste which has to be disposed of in some manner notwithstanding an immediate intention of the recipient to re-use it. “The term “discard” must be interpreted in the light of the aims of the [Directive]…” and “…material which was originally waste needs to continue to be so treated until acceptable recovery or disposal has been achieved”: see again per Carnwath LJ in OSS , paragraphs 14(iv) and 56. 34. We conclude, like the Court of Appeal in Northern Ireland, that excavated soil which has to be discarded by the then “holder” is capable of being waste within the Act and, in any individual case, ordinarily will be. Having become waste it remains waste unless something happens to alter that. Whether such an event has happened is a question of fact for the jury. The possibility of re-use at some indefinite future time does not alter its status: see Palin Granit , and indeed ARCO . Actual re-use may do so ( Inglenorth ), but only if consistent with the aims and objectives of the Act and of the Directive: (c.f. O’Hare ), the principal ones of which are the avoidance of harm to persons or to the environment, as set out in the recitals to the Directive. Which of those aims and objectives are relevant to an individual case will depend on the cases presented by the parties. In this case, for example, the main concern maintained by the Crown is for the environment around the village where the respondents’ farm lies (as a Special Area of Conservation) and visual amenity in the area generally. Matters which, in our judgment, are readily capable of assessment by a jury in deciding whether any material in issue is in fact “waste”. 35. Accordingly, and with respect to the judge who grappled admirably with an opaque and extremely difficult area of law, we find that he was wrong to accede to the first defence submission in this case. 36. In the first place, he was in error in assessing the status of the materials entirely by reference to the respondents as “holder”[s]: see paragraph 9 of the judgment, last sentence. The hauliers were also clearly “holders” of materials which it was open to the jury to find to have been waste from the moment of excavation at the neighbouring farm and requiring to be discarded by the land owners as “holders”. The additional question was whether what the jury could find to be “waste” from the moment of excavation to the moment immediately prior to deposit on the respondents’ land ceased to be so because of the intended and actual use of it by the new holders. That too, in our judgment, was a question of fact for the jury. 37. Secondly, the judge fell into error, we think, because he then concentrated entirely upon the intentions of the respondents to put the material to immediate use and found that it could not be waste because there was not the slightest element of discarding in the use to which they put it immediately after the deposit: see paragraph 18. At the close of the Crown’s case there was to our minds undoubtedly evidence to go to the jury which would entitle them to find that these materials were waste that were required to be disposed of by the producers and by the hauliers and that the respondents had been paid to relieve that need on their part. If satisfied, on that material, that this was waste at that stage, the further question that remained for the jury was whether, having regard to the aims of the Directive, the materials ceased to be waste, no longer being discarded by anyone, which was being subjected to acceptable recovery or disposal. 38. All would depend on the facts of the individual case. There may be cases where what is deposited as waste in the recipient’s hands is deprived of that character by later acceptable use. However, in the present case, the answer to the question posed at the end of paragraph 37 above is likely to resolve all five counts on the indictment, by virtue of the jury’s view of the respondent’s intended and immediate actual use of the materials. Was that a use in accordance with the objectives in the Directive and particular recital (2), quoted in paragraph 19 above? If so, that would seem to us to be likely to resolve all the counts, for it is difficult to see how in this particular case the character of the material, when received into the possession of the respondents, could be held to change at the instant of deposit on their land. This is not to cast doubt on the pleas of guilty entered by the hauliers who may well have accepted that their sole purpose was to dispose of controlled waste, the intended and actual purposes of the respondents in receiving it being immaterial to them. 39. In our judgment, the real question on the appeal arose out of the first defence submission. We consider that, if there was a case to go to the jury on that point, there was clearly a case to answer that this was “controlled waste”. 40. Having regard to the definitions contained in Section 75 of the Act , there seems to us to have been ample evidence that, if waste at all, these materials were “controlled waste” as being “industrial waste” from “…premises used for agriculture…” ( section 75(6)(e) ) and/or “waste arising from works of construction or demolition, including waste arising from work preparatory thereto” ( section 75(7) and/or (8) and reg. 5(2) of the Controlled Waste Regulations 1992 (SI 1992/558) ). These provisions, together with the evidential material identified by the Crown in written argument (paragraphs 48-55 and especially the admissions made in various forms by all defendants), clearly provided an evidential basis from which a jury was entitled to conclude that the material came from a neighbouring farm (“premises used for agriculture”) where a hotel was being constructed (“waste arising from works of construction…including waste arising from work preparatory thereto”). 41. We have considered the question of “controlled waste” aside from questions of burden of proof. However, like Stanley Burnton J (as he then was) in Skipaway Ltd. V Environment Agency [2006] EWHC 983 (Admin) paragraph 28, we consider that, if this was “waste” the onus of showing that it was not “controlled” was on the respondents. 42. For those reasons we consider that the defence submission of no case was wrongly accepted and that this appeal must be allowed. We order, pursuant to section 61(4)(b) Criminal Justice Act 2003 , that a fresh trial may take place in the crown Court for the offences charged in the indictment.

2010_05_11-2383.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/927/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/927

e593398c56f063165c2a3b4caf0bde6b2be752bdfb6c546bbccad9cbd12aeac8

[2018] EWCA Crim 1454

EWCA_Crim_1454

2018-06-15

crown_court

Neutral Citation Number: [2018] EWCA Crim 1454 Case No. 2017/02092/B5 & 2017/02093/B5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 15 th June 2018 B e f o r e: LORD JUSTICE IRWIN MR JUSTICE GOOSE and HIS HONOUR JUDGE MAYO QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) _________________ R E G I N A - v - RYAN ALFRED WILLIAM COOPER ____________________ Computer Aided Transcription by Wordwave Internationa

Neutral Citation Number: [2018] EWCA Crim 1454 Case No. 2017/02092/B5 & 2017/02093/B5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 15 th June 2018 B e f o r e: LORD JUSTICE IRWIN MR JUSTICE GOOSE and HIS HONOUR JUDGE MAYO QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) _________________ R E G I N A - v - RYAN ALFRED WILLIAM COOPER ____________________ Computer Aided Transcription by Wordwave International Ltd trading as Epiq 165 Fleet Street, London EC4A 2DY Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) ____________________ Mr W Mousley QC appeared on behalf of the Appellant Mr A A Houston appeared on behalf of the Crown ______________________ J U D G M E N T ( Approved ) LORD JUSTICE IRWIN: 1. On 12 th April 2017, following a trial in the Crown Court at Winchester before Warby J and a jury, the appellant was convicted by a majority (11:1) of manslaughter. He was sentenced to six years' imprisonment. 2. He appeals against his conviction by leave of the single judge and he renews an application for leave to appeal against sentence, following refusal by the single judge. 3. Before we enter into a detailed consideration of this case, it is clear that the event was a tragedy for the deceased, Mr Stacey, and his family; and, although there is no equation between their position and that of the appellant and his family, it also represents a terrible waste of time and a loss of innocence for the appellant. There has been a considerable impact on his family and on him. 4. At the time of the offence the appellant was a 20 year old law student who had no previous convictions. He had a positive good character. He spent the evening of Saturday 13 th February and much of the early morning of Sunday 14 th February either out to dinner with his family, or drinking in his family home, or out in Newport town centre on the Isle of Wight. The Crown relied on a number of episodes during the early morning of the Sunday, many of which were captured on CCTV footage which was shown to the jury. 5. The appellant ended up drinking in Yates' wine bar. At around 2.08am the staff wanted him to leave. The evidence from a member of staff was that he had been aggressive in the wine bar and he was escorted to the door. However, he calmed down, was apologetic and was allowed to remain, despite threatening to sue the door supervisor. However, a little later, at 2.43am, he was ejected from Yates' wine bar. This was not a violent episode, although the appellant used some strong language. 6. CCTV then showed the appellant outside a Chinese restaurant. He was there alleged by the Crown to be involved in tripping a man up, causing him to fall to the ground, standing over him, holding him down and then dragging him up by the top of his shirt. The CCTV footage of this incident was played a number of times to the jury. That man was called Tariq Yilmaz. In evidence the appellant agreed that he had used his feet to trip up Yilmaz, thinking that he was about to attack a friend of the appellant. He said that he used a sweeping motion to trip him up and then held him by the scruff of the neck to enable him to get up from the ground. 7. In the next episode in sequence the appellant was seen in the bus station by a prosecution witness who described him as being rude and abusive to her. Soon after that, the appellant became involved in the episode which led to the death of Gary Stacey. 8. Mr Stacey was 49 years of age. At the time of the episode he was in the course of eating a burger, which he held in his left hand. This episode was captured on the CCTV camera outside Ming's Chinese Restaurant. That footage was critical evidence in the trial. The jury were able to view it a number of times, both in its original and an enhanced form. The judge summed up this crucial footage to the jury in full terms. 9. The footage occupies a period of 20 seconds and, as the judge observed, "within that period there are a couple of seconds in which the punch was thrown or punches were thrown, whichever you think it is". Mr Stacey comes into the picture and the appellant leaves. The appellant then returns. There is some sort of confrontation between Mr Stacey and the appellant's companion, Alex Wright. Then, as the judge described it, there was some form of encounter between the appellant and Mr Wright. The appellant then turned to face Mr Stacey with his arms out. The appellant punched Mr Stacey and Mr Stacey fell. The appellant moved off but turned and made to come back to the scene but was pushed away by Mr Wright. The interpretation of the CCTV footage was for the jury, a task which the judge described as follows: "It is obviously your task to work out what you think actually happened, but the issues raised include these. Was there a movement by Mr Stacey with his body or his hands before the punch? Was there some defensive movement of the [appellant's] hands or one hand? Did the [appellant] throw one punch or two? How forceful was the blow that knocked Mr Stacey down? What was in the [appellant's] mind when he went to return to the scene after Mr Stacey went down? Was it aggression or may it have been concern?" 10. The judge recounted the appellant's account to the jury, which was in substance that Mr Stacey had misunderstood some shouting directed at him and his companions as coming from the appellant and his companions, rather than from another group. Mr Stacey, he said, "would not listen and he said he would knock us out". It had all blown up in less than a minute. The appellant said that Mr Stacey was shouting and moved towards him with his fists clenched. The appellant put his arm out and punched him once. He did that because Mr Stacey's fist was clenched and he said that he would knock out the appellant. 11. As we have indicated, Mr Stacey fell backwards and hit his head on the pavement. He never recovered consciousness. Indeed, it is obvious from the CCTV footage that he did not move at all. He died the next morning from a brain bleed and swelling: a fatal closed head injury. The Crown's case was that this was a “two punch” manslaughter. The appellant's case was that he punched once and had acted in lawful self-defence. 12. There was relevant scientific evidence, some of which was uncontentious. When paramedics put Mr Stacey on the spinal board at the scene, they saw that he was bleeding from his mouth. On arrival at the hospital, it was discovered that he had a fractured eye socket. That is an indication of the forcefulness of the blow which had felled him. 13. However, the contentious evidence for present purposes falls into two areas. Firstly, evidence was led before the jury that the appellant had consumed some cocaine on the evening in question. Secondly, there was evidence before the jury of text messages between the appellant and his girlfriend which were said to demonstrate a propensity for aggression. In each case, Mr Mousley QC, who appears on behalf of the appellant, says that the evidence should not have been admitted and that it renders the conviction unsafe. We will address those issues in turn. Ground 1: The Use of Cocaine 14. The Crown's case in relation to cocaine was as follows. The appellant had made contact with the police by means of a 999 call on the Sunday afternoon (the afternoon following the death). The Crown suggested that it was significant that he had waited so long, and suggested that his motive was to permit sufficient time to pass so that all the substances which he had ingested the night before would be gone from his body. However, a urine specimen taken from him after his arrest was tested and it indicated the use of cannabis and cocaine. 15. In the course of his interview following arrest, but before the results of the urine test were available, the appellant denied using cocaine on the previous evening. 16. The scientific evidence of the urine test results was given in a report from Dr Darkins, a senior toxicologist. His report concluded that the urine test revealed metabolites of cocaine and of crack cocaine. The relevant metabolite of crack cocaine is known by the acronym AEME. 17. In the course of a pre-trial hearing before the Recorder of Winchester, the appellant argued that the evidence of cocaine ingestion should be excluded. That application failed. The argument was renewed before Warby J at the outset of the trial on 28 th March 2017. At that point the evidence of metabolites, both of powder cocaine and of crack cocaine, was still being relied on by the Crown. The ruling of the trial judge favoured the prosecution. 18. At that point the judge's attention was drawn to a number of the aspects of Dr Darkins' report. The judge observed as follows: "The effects depend upon how cocaine is taken, according to the evidence. The stimulant effects are reported to begin within seconds when smoked and typically last for 15 to 30 minutes; when snorted the effects typically last for 30 to 60 minutes, and the well-known stimulant effects of cocaine are recorded. It is said that a person under the influence of a stimulant effect may exhibit an increase in risk-taking behaviour, and clinical symptoms may include dilated pupils. On the evidence in this case, cocaine was snorted, if it was, at some time before eleven in the evening and the critical events took place shortly before four in the morning. So the stimulant effects of snorting could not have been present, on the evidence, at that time. There was evidence, clinical evidence, however, that cocaine may have been smoked, and the time at which that happened, if it did, is uncertain. So there is a possibility that there could have been some stimulant effects from that. But the prosecution has wisely decided to draw back from describing the event as 'cocaine fuelled' in its opening. The important, or more important, aspect of the evidence seems to me to be what it says about the come-down effects, which may last for a long period of time according to the evidence. They include: exhaustion, fatigue, disorientation and depression, and sleep deprivation which can lead to agitation and irritability … That seems to me to be evidence which can properly be placed before the jury as part of the overall picture. How the evidence will turn out, it cannot safely be predicted at this stage but it seems to me that that has real evidential value and that its evidential value is not [out]weighed by its prejudicial effect. Such prejudicial effect, as it may have, can adequately be catered for by appropriate directions …" 19. Part of the background to this evidence was that, at 10.07pm on the night in question, the appellant had sent a text message to a group of friends. It said: "I just did the biggest line of cocaine". In a further message at 10.34pm he texted: "it was fantastic. I feel like I'm invisible. So happy I came back to clear my head and chill out". Seven minutes later, he sent a further message: "Sorted head right out. Also half a litre of vodka helped". These messages, of course, were in direct conflict with the appellant's denial in the course of his police interview that he had taken cocaine. 20. Before the relevant scientific evidence came to be given to the jury, there arose a development which restricted its ambit. It became clear that there was at least a potentially significant difficulty with the processes in the relevant laboratory, which meant that the evidence of the metabolite AEME, indicating the consumption of crack cocaine as opposed to powdered cocaine, might be unreliable. As a result, the appellant's sample was re-tested. On this occasion, no AEME was detected. For that reason, the Crown elicited no evidence to suggest that the appellant had ingested crack cocaine. When Dr Darkins came to give his evidence, it was therefore confined to the conclusion that the metabolites of powdered cocaine had been detected. He also gave evidence that the stimulant effects of powdered cocaine would last for 30 to 60 minutes and that, whilst there would be "come-down" effects after that, sufficient time had passed between the ingestion of the cocaine at around 10pm and the fatal episode at around 4am, to mean that the cocaine could not have had an effect on the appellant's behaviour during the fatal episode. 21. At the conclusion of the Crown's case, which immediately followed the evidence of Dr Darkins, Mr Mousley applied to the judge to discharge the jury, on the ground that they had heard the allegations and evidence of cocaine use by the appellant on the night in question. On a proper analysis, this was not relevant to any issue which the jury had to determine, but that it had a significant prejudicial effect which could not be cured by any direction that could be given. In the alternative, the judge was invited to give an immediate direction to the jury that the evidence was incapable of proving anything of relevance to their deliberations. 22. The judge declined to accede to either application. He gave his reasons subsequently in writing. Having recited the background and given an account of how the cocaine issue had developed during the prosecution case, the judge said this: "17. … The question is whether this [appellant] can have a fair trial on this charge, in the circumstances of this particular case. I am satisfied that he can, and that it would be wrong to discharge the jury. 18. There is clear evidence from the [appellant's] own words that he took cocaine that night and lied to the police about his use of cocaine when questioned about it. It would be open to the jury to conclude that he lied for a reason that has a bearing on his guilt of the charge of manslaughter. That is a legitimate element of the Crown's case. It is open to the [appellant] to answer it evidentially by providing an innocent explanation for his falsehood (and by the time I write these reasons he has done so). I can and will sum up on that issue in such a way as to make clear to the jury how the lie might be relevant to their task. 19. The prosecution's evidential case on the impact of cocaine has fallen some way short of what was suggested when I ruled before the case was opened. The jury are likely to conclude that the evidence about cocaine has fallen short of what was suggested in the prosecution opening. It may well be that when I come to sum up I will have to direct the jury that the ingestion of a single dose of cocaine at around 10pm could not have had any effect on the [appellant's] conduct at 3.50am. On the evidence, he certainly could not have experienced any stimulant effect from such a dose at that time. The overall effect of Dr Darkins' evidence would seem to be that such a dose could not have caused any of the 'downside' effects he described. There is at present no evidence of any other ingestion of cocaine. If that is the kind of direction I give, I will expect the jury to follow it and to discard any notion that the [appellant] was or may have been under the influence of cocaine at the time of the fatal blow. On a matter which requires expertise, it is not open to a jury to reach a factual conclusion that is contrary to the only expert evidence this is before them." 23. In the course of his reasons, the judge also indicated that he would invite submissions as to the proper direction he should give to the jury in due course. 24. When he gave evidence, the appellant described taking some powdered cocaine on the evening before the fatal episode, and thus admitted that he had not told the truth in interview. He said the reason was that he did not want to reveal it to his parents. He described taking a very small amount of cocaine from the end of a key. 25. When he came to sum up the matter to the jury, the judge gave a careful direction in the following terms: "10.1 It is important to be clear about the relevance of the evidence about cocaine. It is certainly relevant to a topic that I will come to: whether [the appellant] told lies to the police. But I must tell you that it has no other relevance. It is not relevant to the issues you have to decide about [the appellant's] behaviour or state of mind at the time he struck the fatal blow. 10.2 The only reliable evidence you have that [the appellant] took cocaine at all is his own statements about the matter, and the toxicology analysis showing the presence of metabolites in his urine many hours later. [The appellant] said that he took cocaine with his friends before they went out. He said it was a tiny amount. But however much it was, the expert evidence is clear: it could not have had any continuing stimulant effect at 3.50am, when he struck [Gary Stacey]. And there is no evidence that [the appellant] took any cocaine later on that night. So any stimulant effect at the key moment is ruled out. 10.3 Nor is there any evidence that you could rely on that [the appellant] was or might have been suffering from 'comedown' effects at that time. Dr Darkins' evidence is that there would be no such effects from a single dose. It is not open to you to reach a different conclusion. This is an expert matter, and he is the expert. To disagree with him on this point would be to speculate or guess." 26. The judge went on to integrate the issue of cocaine in the direction about lies in the following terms: " The [appellant's] lie about Cocaine 18.2 [The appellant] admits that he lied to the police about cocaine. That may affect your view of his reliability as a witness. But some lies are told in an attempt to cover up guilt. The prosecution suggest that this is what happened here. It is said that [the appellant] not only knew he had taken cocaine, he feared that if that was known it might incriminate him in relation to his assault on [Gary Stacey]. So he lied. That is how the prosecution put it. 18.3 If you were sure that [the appellant] told this lie in an attempt to cover up guilt of an unlawful assault on [Gary Stacey], that he thought he might have been affected by his use of cocaine, then you could take the lie into account as evidence which lends some support to the prosecution's case. 18.4 But not all lies are evidence that a person is guilty of the offence charged. There can be reasons for telling lies which are innocent, in the sense that they do not imply guilt of the offence charged. People may lie, for instance, because they are embarrassed or ashamed of something which has nothing to do with the crime they are accused of committing. Here [the appellant] says the reason for the lie was nothing to do with a fear of incriminating himself. His explanation is that he did not want his parents to find out he had used cocaine in their house. 18.5 If you believe that was or may have been the reason, or that there was or may have been some other reason that was innocent in the sense that I have described, then that is the end of the prosecution point." 27. Mr Mousley on behalf of the appellant takes two linked points concerning this area of the case. Firstly, he says that the evidence of consumption of cocaine should never have been admitted before the jury. Secondly, he repeats the submission made in the course of the trial, that the jury should have been discharged once it was clear that the cocaine evidence could no longer be held relevant to the behaviour of the appellant at the time of the fatal incident. He says that it was speculative from the beginning as to whether cocaine ingestion could have had any direct pharmacological effect on the appellant's behaviour at around 4am. He argues that it was, and would always have been, an insufficient basis for the admission of this evidence to demonstrate the appellant's lie in interview as supportive of guilt, or to bear on credibility generally. The directions given to the jury were correct as to the irrelevance of the taking of cocaine to the appellant's behaviour, but Mr Mousley says that they were "incorrect to identify it as of potential relevance to the issue of the appellant's credibility". The appellant goes on to make the point that, despite the judge giving a full good character direction in relation to the appellant and despite the considerable quantity of positive evidence of good character which was adduced from both prosecution and defence witnesses, this evidence may have served unfairly to undermine his character in the eyes of the jury. In essence, the appellant's submission on this area of the case is threefold: firstly, that the evidence should not have been admitted, pursuant to section 101(d); secondly, that if ruled admissible, it should have been excluded as being more prejudicial than probative and as satisfying the test for exclusion; and thirdly, that its prejudicial effect is such as to render the conviction unsafe. 28. In reply, Mr Houston for the Crown argues that the judge's directions on the relevance of cocaine, on not proceeding on the basis of prejudice, and specifically emphasising that the ingestion of cocaine can have played no direct part in the critical events, together mean that it was appropriate to admit the evidence, appropriate to decline to discharge the jury, and thus that there was no error in the way the judge proceeded or in the admission of evidence capable of undermining the conviction. Further, the Crown argues that the evidence was indeed properly admitted as being relevant to the appellant's credibility concerning this offence, as well as more generally, and in any event could not possibly render the conviction unsafe. 29. We have carefully considered this ground of appeal. We accept that the process was rendered more difficult because of the shifting position in relation to the original findings, subsequently undermined, as to the metabolite of crack cocaine. This inevitably meant that the judge had broader considerations in mind to start with, when facing the initial application to exclude this evidence, than later in the process. 30. Clearly, the evidence as eventually it was before the jury could not be probative as to the appellant's state of mind during the index episode, in the sense that it could not be said the cocaine had any effect upon his emotions or reactions in a direct pharmacological sense. But the jury were never under the misapprehension that that was so. That point was clear both from the evidence of Dr Darkins and from the summing-up. However, taken together with the messages sent by the appellant that night, we consider that it was relevant and admissible as to the appellant's credibility, and to his state of mind – the state of mind in which he approached events that evening. In those respects, the summing-up was impeccable. 31. We further consider that any prejudice which arose from this evidence will have been limited. On any view, the appellant and all those with him – and indeed the victim – had consumed a very large amount of alcohol over a long period of time. We reject the submission, in that context and with reference to current attitudes to the ingestion of cocaine of a small quantity and for personal consumption. We reject the submission that it was unreasonable on the part of the judge not to exclude the evidence. We think it unrealistic that there will have been such prejudice in the minds of the jury, particularly in the face of the strong and clear directions given by the judge, so as to mean that we should regard this conviction rendered in any way unsafe by the admission of this evidence. We therefore reject this ground of appeal. Ground 2: The Text Messages 32. The relevant text messages for this ground are those introduced by the Crown and which passed between the appellant and his then girlfriend on 8 th June 2015, some eight months before the fatal episode. The evidence was contained in written admissions given to the jury. They read as follows: "THE APPELLANT: … but honestly if we break up and you do the same I'm gonna lose it. … THE APPELLANT: Not with you but with everyone. I won't give a fuck about any girl ever and I'll be so aggressive and fight anyone out like after I broke up with Kat. … MISS HUTCHINGS: But I won't do it to you. … MISS HUTCHINGS: I'm sorry it started like that. THE APPELLANT: I'm not saying if we break up you can never get with someone but I'm saying if I see it and if it's to annoy me, I'll lose it." 33. The Crown had applied to introduce evidence of an episode in January 2015 between the appellant and another young man, with other accompanying text messages, which the judge rejected as being prejudicial and insufficiently relevant. 34. The Crown sought to admit these text messages as demonstrating a propensity to a violent lack of control and as important evidence explanatory of the fatal incident. The basis for the last point was that there had been, and was evidence of, a form of separation or break between the appellant and his girlfriend, Miss Hutchings, on the Friday – two days before the fatal episode on the Sunday night. 35. The judge admitted the text evidence we have quoted above in the face of objections from the defence. His reasoning was as follows: "… the … evidence … seemed to me to be in the form of admissions of a readiness or a propensity on the part of this [appellant] to use random aggression if dumped by his girlfriend … … this material seems to me to be a matter that should properly be before the jury. What the [appellant] says is that he has been, in the past, aggressive after he broke up with Kat and that he would be aggressive towards others if he and Miss Hutchings broke up. Those messages were sent in June 2015, although that was many months before the incident in question … It represents the [appellant's] own account of what he was likely to do in certain events. The Crown's case is that he did engage in aggression towards a complete stranger for no good reason within days after breaking up with Miss Hutchings. It may be that on a true analysis the evidence is relative to motive and that, as such, it is not bad character evidence within the meaning of section 98 at all, but it is not necessary to enter into that because, in my judgment, it is clearly relevant to the issue of whether the [appellant] punched and, thereby, killed Mr Stacey in reasonable and lawful self-defence or not. It is capable of establishing that he had a propensity towards aggression and violence towards others, provoked by his own anger over a relationship breakdown rather than anything that the other person had done. … Its probative value is markedly greater than its likely prejudicial impact. …" 36. In due course the judge gave a written direction in relation to these texts in the following terms: "14.1 I am referring of course to what [the appellant] himself said in the text messages he sent to his then girlfriend, Maria Hutchings, in June 2015. He wrote that if they broke up he would 'lose it' and 'be so aggressive and fight anyone out like after I broke up with Kat'. The suggestion is that this is just what [the appellant] was doing when he struck Gary Stacey on 14 th February 2016, not long after Maria Hutchings had broken up with him. 14.2 It is important to be clear about how to treat this kind of evidence and how it is potentially relevant. Before going down the line suggested by the prosecution you would need to bear in mind that people can brag or exaggerate. You would need to consider what [the appellant] himself said about the texts: that these were just examples of things said in the heat of an argument, and the evidence he and Kat both gave that their relationship ended amicably. 14.3 If you conclude that this is or may be the true position, you should ignore the texts to Maria Hutchings. And you would need to bear in mind that the texts of June 2015 were sent some time before the events with which you are concerned. 14.4 If, on the other hand, you are sure that the prosecution is right about the texts then you could conclude that they show an intention to be violent if dumped by Maria. 14.5 If you did reach that conclusion, you would still need to guard against attaching too much weight [to] this kind of evidence. The question for you is, after all, what actually happened that night. It would be wrong to find that [the appellant] launched an unprovoked attack on Gary Stacey just because he said he would 'lose it' if Maria broke up with him." 37. There is no complaint on behalf of the appellant about the summing-up; nor could there be. The complaint is simply that no summing-up was capable of removing the prejudice engendered by this material. It is also submitted that the evidence was not capable of establishing a propensity to use violence and that the circumstances did not provide evidence to show motive. There was no evidence, says Mr Mousley, correctly, that any violence had taken place. Time had passed since these text messages were sent, and there was evidence of an amicable separation from Kat. Taken together, these matters meant that these texts were of very limited probative value. Moreover, he says, it was not possible to separate out these messages, which were said to demonstrate a future intention to use violence if there was a separation from the appellant's girlfriend, Miss Hutchings, from the excluded evidence concerning jealousy of Baker (a male friend of Miss Hutchings). To divorce the one from the other meant that these text messages would be taken out of context. The messages dated from a considerable period before, and arose in quite different circumstances. 38. In addition, there was evidence from other prosecution witnesses that the relationship between the appellant and Miss Hutchings was episodic; that there were break-ups between them in the intervening eight month period between the text messages and the critical weekend; and that pattern was underscored by the fact that they resumed their relationship immediately after the appellant's release from police custody. In any event, there was evidence before the jury for their consideration that the appellant was not upset at the "split" over the weekend of 13 th to 14 th February. 39. Those are the arguments and the submissions presented on behalf of the appellant. In our judgment, the judge was right to admit this evidence. The factual points advanced by the defence were for the jury to evaluate. It may very well be that Mr Mousley was right to submit that the other evidence which bore on this question was likely to mean that the jury would place little reliance on this material. However, we reject the argument that the description by the appellant of his own temperament and reactions, given in private to his girlfriend, were not capable of being divorced from the specific context of jealousy of Baker. In this evidence the appellant was – or at least it was open to the jury to find that he was – explicitly speaking about his reactions in the future, and not about his historic reactions. As we have already pointed out, the appellant had himself texted that evening that he had come back and "sorted [his] head right out" by the use of cocaine and vodka. His intention clearly was to become disinhibited and intoxicated by the use of both substances, at a time when, on the prosecution case, he had just split from his girlfriend. 40. The jury were entitled to consider this evidence as bearing on the appellant's credibility and on his state of mind that evening, just as in the rather different factual and legal contexts which arose in R v Playdell [2005] EWCA Crim 1447 , [2006] 1 Cr App R 12 and R v Ashworth [2012] EWCA Crim 1064 . This evidence, in our judgment, was perfectly properly admitted. It does not render the conviction unsafe. We therefore reject this ground of appeal. 41. For these reasons the appeal against conviction is dismissed. 42. We turn to the renewed application for leave to appeal against sentence. In his submissions, Mr Mousley acknowledges the decisions of this court in Attorney General's Reference No 60 of 2009 (R v Declan Appleby and Others) [2009] EWCA Crim 2693 , [2010] 2 Cr App R(S) 46, and the ensuing guidance from this court in Attorney General's Reference No 16 of 2014 (R v Lewis Gill) [2014] EWCA Crim 956 . Essentially, Mr Mousley argues that in the two guideline cases mentioned, and in the cases reviewed within those authorities, the sentencing range identified specifically by Treacy LJ in Lewis Gill as six to seven years' custody following a contested trial falls to be distinguished from the position of this appellant. Mr Mousley argues that this appellant was a young man with no previous convictions, of positive good character and without some of the aggravating factors which applied in the cases reviewed. He also says that the judge should have found, on the evidence before him in the course of the trial, that a threat had been uttered by Mr Stacey before the fatal punch. He also should have placed more weight on the appellant's young age (then 20). 43. We accept that Mr Mousley's point in relation to the earlier authorities and to the cases reviewed within them may be correct, so far as the point goes, but there were aggravating features in this case. Not only was the judge, in our judgment, entitled to sentence on the basis that this was not a "one punch" manslaughter, as the appellant, in his view, struck more than one blow. Further, the evidence made it clear that the appellant had, at least at some points in the course of that night, behaved in an aggressive fashion elsewhere. In addition, there was no obligation on the trial judge specifically to conclude, on the piece of evidence advanced by the appellant and supported by one other witness (Mr Power), that there had been a threat from Mr Stacey. It is not necessary for a sentencing judge to provide an explanatory essay as to every significant piece of evidence in the course of sentencing remarks. 44. As always, the trial judge was in a markedly better position than this court to evaluate the offender and the offence. The judge noted a number of lies told by the appellant. He took the view – and he was entitled to take the view – that the lies were told "in an attempt to concoct an innocent explanation and to cover up your guilt". He noted that the appellant had seen the deceased fall, knew that he was unconscious, knew that he might be seriously hurt, but had then run away. The judge added this: "This was not out of panic, as you have claimed. Nor was it because you feared attack by the other group … as you have also claimed. You ran away because you knew you had done something wrong and indefensible, and that you may have caused serious harm by doing it. That is why it took you eleven hours to call the police and hand yourself in. This is the behaviour of someone who knows he is guilty and is hoping against hope that he will not be held to account." 45. The judge reviewed the decision in Lewis Gill and correctly identified the range of six to eight years' custody, depending on the facts. Applying that approach, he noted that the blow delivered by the appellant was a "powerful punch" which was "bound to cause some harm". That was well-founded, given the fractures to the face, which had been derived from the punch, not from the consequent fall. 46. Despite the favourable factors, and in particular the appellant's good character, his genuine remorse and sympathy, the judge considered that the appropriate sentence was six years' custody. 47. It is not for this court to re-sentence today. We regard the sentence as not capable of challenge. It is not manifestly excessive. 48. Accordingly, the renewed application for leave to appeal against sentence is refused. ________________________________

2018_06_15-4328.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/1454/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/1454

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[2010] EWCA Crim 2010

EWCA_Crim_2010

2010-07-16

crown_court

Neutral Citation Number: [2010] EWCA Crim 2010 Case No: 2009/1526/C1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 16 July 2010 B e f o r e : LORD JUSTICE MAURICE KAY MR JUSTICE CRANSTON MR JUSTICE SWEENEY R E G I N A v CHAUDARY SHABBIR 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 S

Neutral Citation Number: [2010] EWCA Crim 2010 Case No: 2009/1526/C1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 16 July 2010 B e f o r e : LORD JUSTICE MAURICE KAY MR JUSTICE CRANSTON MR JUSTICE SWEENEY R E G I N A v CHAUDARY SHABBIR 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 appeared on behalf of the Appellant Mr P Arnold appeared on behalf of the Crown J U D G M E N T 1. MR JUSTICE SWEENEY: On 17th May 2007 in the Crown Court at Wolverhampton, this now 52-year-old appellant pleaded guilty to one offence of assisting illegal entry (Count 1) and to seven offences of assisting unlawful immigration to a Member State (Counts 4 to 10). He was sentenced to 54 months' imprisonment on each count concurrent, and ordered to pay £65,000 towards the costs of the prosecution. Confiscation proceedings followed, and on 16th April 2008 Mr Recorder Sanghera made a confiscation order in the sum of £148,550 to be paid within six months or in default to serve three years' imprisonment. The appellant now appeals against sentence, confined to aspects of the confiscation order, with leave of the Full Court, differently constituted. 2. In short, the appellant submits that the order should be reduced to £52,598 and that the period in default should also be reduced accordingly. The respondent concedes that the order should be reduced, but argues that the reduction should be to a figure of £92,177, again with an appropriate adjustment to the default period. 3. In order to understand the rival contentions, it is necessary to set out some, at least, of the background. 4. The appellant's offences can be dealt with shortly. Between 2002 and 2004 he ran a business called Griskia Management Services which provided immigration advice. The eight offences to which he pleaded guilty involved his organising false applications for work permits for individuals to work in jobs that did not, in fact, exist and for which service he charged each applicant. The first offence (Count 1) took place on 23rd December 2002 and the last offence (Count 10) in March 2004. Thereafter the appellant was eventually arrested and prosecuted. 5. Because the first offence was committed before the coming into force of the Proceeds of Crime Act 2002 in March 2003, the confiscation proceedings were required to be conducted under the provisions of the Criminal Justice Act 1988 (" the 1988 Act ") as amended by the Criminal Justice Act 1993 and the Proceeds of Crime Act 1995 . To that end, the prosecution gave written notice under section 71(1)(a) of the 1988 Act that it was appropriate for the court to proceed under section 71 of that Act, and to make the assumptions provided under section 72AA in determining the appellant's benefit. 6. Section 72AA(3) to (6) provide as follows: "(3) When proceeding under section 71 above in pursuance of the notice mentioned in subsection (1)(a) above, the court may, if it thinks fit, determine that (subject to subsection (5) below) the assumptions specified in subsection (4) below are to be made for the purpose- (a) of determining whether the defendant has benefited from relevant criminal conduct; and (b) if he has, of assessing the value of the defendant’s benefit from such conduct. (4) Those assumptions are- (a) that any property appearing to the court- (i) to be held by the defendant at the date of conviction or at any time in the period between that date and the determination in question, or (ii) to have been transferred to him at any time since the beginning of the relevant period, Was received by him, at the earliest time when he appears to the court to have held it, as a result of or in connection with the commission of offences to which this Part of this Act applies; (b) that any expenditure of his since the beginning of the relevant period was met out of payments received by him as a result of or in connection with the commission of offences to which this Part of this Act applies; and (c) that, for the purposes of valuing any benefit which he had or which he is assumed to have had at any time, he received the benefit free of any other interests in it. (5) Where the court has determined that the assumptions specified in subsection (4) above are to be made in any case it shall not in that case make any such assumption in relation to any particular property or expenditure if- (a) that assumption, so far as it relates to that property or expenditure, is shown to be incorrect in the defendant’s case; (b) that assumption, so far as it relates, is shown to be correct in relation to an offence the defendant’s benefit from which has been the subject of a previous confiscation order; or (c) the court is satisfied that there would (for any other reason) be a serious risk of injustice in the defendant’s case if the assumption were to be made in relation to that property or expenditure. (6) Where the assumptions specified in subsection (4) above are made in any case the offences from which, in accordance with these assumptions, the defendant is assumed to have benefited shall be treated as if they comprised, for the purposes of this Part of this Act, in the conduct which is to be treated, in that case, as relevant criminal conduct in relation to the defendant." 7. In the prosecutor's statements served in advance of the confiscation hearing the court was asked to consider the benefit derived from the offences themselves and to make an appropriate retail price index calculation in relation to that benefit. The court was asked to apply the statutory assumptions to the following: 1. Money transfers during the period of six years prior to the commencement of the proceedings. 2. Property held by the appellant at the date of his conviction or other relevant time, namely a Toyota motorcar, £9,800 in cash, and a house at 22 Ledstone Way in Stoke. 8. The house was purchased by the appellant in January 1992 for £67,000 and was registered in his sole name. He paid £17,000 towards the purchase price, with the remainder being funded by a mortgage from the Nationwide Building Society in the sum of £50,000. It is the learned Recorder's findings in relation to this house which lie at the heart of the appeal. 9. At the confiscation hearing the respondent invited the learned Recorder to find that the appellant had benefited in the total sum of £222,798, that his realisable assets exceeded that sum, and that thus the confiscation order should be in that total sum. 10. The appellant disputed the respondent's case. He gave evidence. Although there is some dispute before us as to precisely what he said as to the way in which he had funded the £17,000 deposit to which we have made reference, it seems clear that the appellant did refer to the receipt of a loan from his father-in-law, who had later died in the mid-1990s, as being the major part of the deposit monies, with the remaining £2,000 or so coming from his own funds. 11. It is clear from the learned Recorder's 17 page judgment that overall, and for good reason, he found the appellant largely to be an incredible witness. In the result the learned Recorder found that the appellant had benefited from criminal conduct in the total sum of £208,598 made up as follows: 1. Benefit from relevant criminal conduct, £28,000. 2. RPI calculation £4,200. 3. Money transfer fees £10,000. 4. A car, £500. 5. Cash seized on arrest, £9,898. 6. 22 Ledstone Way, £156,000. 12. In relation to the house, at page 8A to E of the transcript of his judgment, the learned Recorder said: "The defendant purchased 22 Ledstone Way in his sole name in 1992. His wife maintains that she has an interest because she paid all the bills, and she paid for a lot of the renovation and extension work carried out to the property. Whilst family and friends carried out the physical work, she made payments of all the necessary costs. These payments were made from benefits because, of course, she was not receiving any earned income. The value of the property is not agreed, but I broadly accept the valuation put forward by the defendant, which is a professionally obtained valuation. The lower figure of £145,000 is insufficiently explained, in the light of the paragraph that precedes it. So, for the purposes of this hearing, I accept the valuation of £160,000. Allowing for the notional costs of sale - estate agent's fees, legal fees - which, as I have already said, are a necessary consequence of realising that asset, I place a value on this property in the sum of £156,000." 13. At pages 13G to 15C, the learned Recorder continued as follows: "Having assessed the defendant's credibility, having considered the evidence that he gave and the manner in which he gave it, I make the following findings of fact: these proceedings relate to a course of criminal conduct and, accordingly, section 72AA of the Criminal Justice Act 1988 applies. These are also proceedings within section 71 of that Act, and the assumption specified in subsection (4) of section 72AA are required to be made. I am satisfied that those assumptions have not been shown to be incorrect. I am further satisfied that there is not a serious risk of injustice in the defendant's case of making the assumptions in relation to his property and expenditure - and I will deal with that point with regard to Ledstone Way in a bit more detail later... The valuation of Ledstone Way, I have already said, is £156,000. The property is in the defendant's sole name, and whilst the wife claims a share, I do not accept, given the assumption, given her disclosed income and apparent interest in another commercial property, that she has that claim. The Act requires, if I am satisfied as to the correctness and a serious risk of injustice, for me to make the assumption that the property that the defendant owns is free of any other interest within it. I have closely considered, having heard counsel's submissions, whether there would be a serious risk of injustice in the defendant's case if I make the assumption particularly with regard to this property. I have been asked to consider the position of the defendant's wife and his children, who are resident in that property and have been for some years. I remind myself that the wife has at least a share in a commercial property. On the basis of her stated ability to purchase that property, but also to fund household expenditure, I am confident that alternative accommodation arrangements are entirely possible for this household. Whilst in a situation such as this there is always the risk of injustice to innocent members of the family, that family has also clearly benefited, indirectly, from the defendant's criminal conduct, by virtue of the income that he thereby enjoyed. I am satisfied that whilst there is a risk of injustice, it is not a serious risk of injustice, and certainly not so serious that the assumptions should not be made." 14. The learned Recorder went on to find that the appellant had the following realisable assets: 1. The Toyota motorcar, £500. 2. The cash, £9,898. 3. Monies in various bank accounts totalling £95,153. 4. 22 Ledstone Way - the net figure of £156,000, less the outstanding mortgage (then a figure of £51,000), giving a final net figure which the Recorder totalled at £109,000. The correct figure was, in fact, £105,000. 15. That gave an overall figure (on the learned Recorder's calculation) of £214,551 worth of realisable assets, from which he deducted, as required by section 74(3) of the 1988 Act , the £65,000 in costs awarded at the earlier hearing, to which we have already made reference. This gave a net total, again using the learned Recorder's figures, of £148,751, which he rounded down to the sum to which we have already made reference of £148,550, and hence made the confiscation order in that sum. Doing the maths correctly it should have been £144,550. 16. The grounds of appeal are put in this way: 1. The Recorder erred in calculating the benefit figure in the sum that he did. There was no basis for including the total value of the house at Ledstone Way, or the mortgage of £50,000. Thus the benefit figure ought to have been £52,598 - i.e. it should have excluded anything in relation to the house altogether. 2. The Recorder erred in exercising his discretion to apply the statutory assumptions to the house as there was no basis upon which so to do. There was a risk of injustice and/or the assumptions were misplaced, because the property was subject to the mortgage of £50,000, and had been so since its purchase in 1992 and it had increased in value since then. 3. The Recorder erred in his ruling that there was a risk of injustice but that it was not serious. 4. The Recorder erred in setting the default term at three years, which is the maximum for a confiscation order in sums between £100,000 and £250,000. 17. At the outset of the hearing Mr Farrell QC, appearing on the appellant's behalf, indicated to us that the issues between the appellant and the respondent had narrowed from those which appeared on the papers before us. It was now common ground that the mortgage sum should not have been included within the benefit figure by the learned Recorder, and that thus the area of dispute was now confined to the consequences of the evidence and the assumptions in relation to the original deposit of £17,000. 18. Mr Farrell's submissions in that regard can be shortly summarised. He submits that when one examines the learned Recorder's judgment, the principal passages of which we have already quoted, it is clear that he never specifically engaged with the relevant issues in so far as the £17,000 deposit was concerned, and that that omission is the more concerning given his agreed error as to the inclusion of the mortgage. In those circumstances, Mr Farrell submits that the proper position here is either that the court should take the view that it was unjust for the assumptions to apply in so far as the £17,000 is concerned, or to take the pragmatic view that a case which would otherwise require a re-hearing to resolve the issue should not be sent back to the Crown Court, given the passage of time since the relevant offence, and the death of the appellant's father-in-law in the interim. Either way, it remains Mr Farrell's submission that no account at all should be taken in the benefit figure of anything in relation to the house. 19. On behalf of the respondent, Mr Arnold points out that it was made clear by the prosecution, from the outset, that the assumptions applied to the house and thus to it being acquired in 1992. Whilst he, Mr Arnold, accepts responsibility for not assisting the learned Recorder as to the inappropriateness of including the mortgage within the benefit figure, he submits that the position is different in so far as the £17,000 deposit is concerned. The onus was firmly on the appellant, he submits, to produce credible evidence to rebut the assumption which applied to the £17,000. And, he further submits, such evidence as the appellant did give, even if it did amount to that to which we have already made reference, was plainly wholly insufficient on the authorities to rebut the assumption. 20. In so far as the delay in time is concerned, Mr Arnold draws our attention to the case of Roach [2008] EWCA Crim. 2649 (albeit a case decided under the Proceeds of Crime Act 2002) and to the passage at paragraphs 11 to 13 of the judgment in that case: "11. It was submitted, firstly, by Mr Redpath that it was unjust to apply that assumption in the present case because so many years had elapsed since the appellant had acquired the property. 12. The appellant's case was that the deposit for the purchase of the property had come from the sale of a previous house, or other legitimate resources, and that the balance had been borrowed on mortgage. There was no dispute as to the mortgage, but the question was whether the appellant had shown that it would be unjust to apply the assumption in relation to the acquisition of the property, bearing in mind the lapse of time and her evidence about the source of the deposit. 13. The judge dealt with this point briefly in his judgment, saying that the figures in evidence did not demonstrate that money from the sale of a previous house or other legitimate resources went towards the purchase of 8 Park Lane in addition to the mortgage. He made plain that in view of the time which had elapsed he would not have expected what he termed full financial records, but he would have expected some more evidence from her. Although she asserted that the deposit came from the sale of another property, she offered no information about the other property, or how it had been acquired, or for how much it was sold. It could reasonably have been expected that she would have been able to remember the previous house in which she had lived and to provide at least some information about its acquisition. In our judgment, no legitimate criticism can be made of the judge's decision as a matter of fact that on the evidence before him it was not unjust to apply the statutory assumption in relation to that property." The property in that case, we would add, had been purchased some 20 years before. 21. Mr Arnold submits that it is appropriate to proceed upon the basis therefore that, in accordance with the assumption the £17,000 should be regarded as benefit. It represented about one quarter of the original purchase price, and so should now be reflected as benefit by about one quarter of the total current net equity of £105,000 once the mortgage has been deducted. That is not an approach which is, in our view, correct in law. Indeed, paragraphs 15 and 16 of the judgment in Roach itself (which it is unnecessary to quote) make clear that it is perfectly proper to regard the whole of the net equity as benefit in circumstances such as applied in this case. 22. Drawing the strings together, it seems to us that in so far as the house at 22 Ledstone Way is concerned, the way in which the confiscation proceedings were conducted before the learned Recorder was misconceived. Not only was he not helped as to the true light in which to see the £50,000 mortgage, he was also not helped in relation to the need to make a specific finding in so far as the £17,000 was concerned, and then to go on from there to make a finding in so far as the net equity was concerned, whatever those findings would have been. Whilst it is the position, as we have already indicated, that it seems that the learned Recorder found much if not all of the appellant's evidence to be incredible, the fact of it is that on this topic at least it was in part credible because it is common ground, as the appellant claimed, that there was all along a mortgage in the sum of £50,000. 23. Accordingly, it seems to us that it would not be right for us to reach any conclusions on the facts in so far as the house at Ledstone Way is concerned. Equally in our view it would not be right, even though the purchase was in 1992, to regard that as a bar to sending the matter back for a rehearing. The more so because, if the court was to take the view that the whole of the net equity falls within the benefit figure, then a sum in the order of £105,000 is involved. 24. Accordingly, given that it is not appropriate to send the matter back for a partial rehearing, it inevitably follows that we must send it back under the provisions of S.11(3A) of the Criminal Appeals Act 1968 for a full rehearing of all the confiscation issues. In those circumstances, we quash the confiscation order and order that it is sent back for a full rehearing before another tribunal. Any sum already paid under the terms of the original confiscation order is not to be repaid until such time as the Crown Court makes a confiscation order, or decides not to make such an order. 25. MR FARRELL: Thank you, my Lord. May I mention a couple of matters? The issue of costs. Prior to the granting of a representation order Mr Shabbir was paying privately. Could I please ask for a defendant's costs order under section 16 of the Prosecution of Offences Act to cover those costs, of course to be assessed? 26. LORD JUSTICE MAURICE KAY: Yes. 27. MR FARRELL: Hopefully the parties can agree the issues to be determined in the lower court and confine them. 28. LORD JUSTICE MAURICE KAY: Yes. My Lord is just raising the question about the need to give directions to the Crown Court. 29. MR FARRELL: Yes, the Act says so. It is section 3A of the Criminal Appeal Act, I think. 30. LORD JUSTICE MAURICE KAY: If we simply direct that the matter be listed within 28 days in the Crown Court for directions. 31. MR FARRELL: Stoke. 32. LORD JUSTICE MAURICE KAY: Then it can take its course from there. 33. MR FARRELL: I am not sure what the funding position is, but I am sure we have to deal with that with the Legal Services Commission. 34. LORD JUSTICE MAURICE KAY: Yes. You do not need any more directions? 35. MR FARRELL: I do not think we do, no.

2010_07_16-2451.xml

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

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

c8bb5cd8b94acb7b23c943c37ac1493d4ef7b3cb19b9d30fe708f738ba58fa97

[2009] EWCA Crim 1915

EWCA_Crim_1915

2009-09-23

crown_court

No: 2009/2969/A6 Neutral Citation Number: [2009] EWCA Crim 1915 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 23 September 2009 B e f o r e : LORD JUSTICE HOOPER MR JUSTICE UNDERHILL MR JUSTICE IRWIN - - - - - - - - - - - - - - - - R E G I N A v MICHAELA BRITTON - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY

No: 2009/2969/A6 Neutral Citation Number: [2009] EWCA Crim 1915 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 23 September 2009 B e f o r e : LORD JUSTICE HOOPER MR JUSTICE UNDERHILL MR JUSTICE IRWIN - - - - - - - - - - - - - - - - R E G I N A v MICHAELA BRITTON - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Mrs M Smullen appeared on behalf of the Appellant Mr R Gursoy appeared on behalf of the Crown - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE HOOPER: On 20th November 2008 at the Crown Court at Chelmsford, the applicant was convicted of conspiracy to pervert the course of justice. The indictment read as follows. The applicant and Paul Hendle, "between the 1st day of February 2006 and the 2nd day of August 2006, conspired together and with others unknown by falsely claiming to Essex Police and the West Midlands Police that they had been the victim of indictable offences and placed persons in jeopardy of arrest or criminal prosecution by such false allegations with intent to pervert the course of justice." The applicant was convicted after a trial lasting some four weeks, during which time the trial judge, His Honour Judge Turner QC, had ample opportunity to make an assessment of her criminality. 2. We should say that there was a considerable delay between the end of the indictment period and the trial, but that as we understand it was the responsibility of the applicant herself to the extent that she was able to convince the court on a number of occasions that she was not fit enough to attend her trial. Part of the delay was also caused, so we are told by counsel for the respondent, Mr Gursoy, by the fact that she changed her counsel. 3. The applicant was sentenced to four years' imprisonment on 22nd December 2008 with a direction under section 240 of the Criminal Justice Act 2003 that 160 days on remand should count towards the sentence. Today she has been, if we may say so, very ably represented by Mrs Smullen who did not conduct the trial. Mrs Smullen has said everything that could possibly be said to assist the applicant in this application. There is also an application for an extension of time which we grant. The application for leave to appeal has been referred to the full court by the Registrar. 4. Paul Hendle pleaded guilty to conspiracy to pervert the course of justice and was sentenced to 12 months' imprisonment, less 355 days on remand. 5. Taking the facts broadly, during a five month period in 2006 the applicant made a series of false allegations to the police. She claimed that she had been burgled, blackmailed, kidnapped on at least two occasions, raped and attacked with a knife. She further alleged that police officers were behind the various offences committed against her. A schedule, which the judge accepted, showed that the various investigations took some 7,000 hours of police time and cost some £316,000. 6. One of the false allegations involved the applicant reporting that her car had been shot at by a motor cyclist. Paul Hendle admitted that he had done this so that the police would think that the applicant had actually been threatened. He said it had been her idea. The applicant also said she had information about the police acting corruptly in relation to a murder investigation in 1994 and that she had been targeted by police officers to silence her. There is some suggestion in the papers that she was motivated by the prospects of financial gain, but Mrs Smullen submits, and we accept, that that was likely only to apply to one or two of the matters being reported to the police. 7. On 27th February she made a false allegation that her home had been burgled. On 14th April police officers received a call from the applicant's daughter. She said the applicant was in difficulty and said where her mother could be located. Armed police officers found the applicant tied up in a car. She was hysterical and said she had met the blackmailers but the police found she was still in possession of the keys to the car and her mobile phone. Her daughter was arrested at that time on suspicion of involvement with her mother in wasting police time. Indeed, the applicant was charged with wasting police time shortly thereafter. 8. We refer to some of the other incidents. The applicant reported being stabbed in the arm. She told officers who attended that she had been stopped by what appeared to be a police car, that four men had showed what appeared to be police badges and that one of them had slashed her arm with a knife. On 27th May the applicant went to a house on an isolated lane and claimed that she had been raped twice during an attack by people with a knife. Her bra was ripped, there was tape on her hands and a bandage on her arm. Her car was found nearby. On 21st June the applicant claimed she had been kidnapped. She refused to hand over her mobile phone to the police but when it was analysed it showed that she had made a large number of calls during the time she claimed to have been kidnapped, but not one of those calls had been made to the police. By now the police were carrying out surveillance on her house and her account was contradicted by CCTV evidence. 9. When she was interviewed she denied the offence. She said at the end of that interview: "You haven't helped me from the start, you haven't helped me at the end, and all you've done has made matters 50 times worse. So screw your help, screw your resources and screw your power. That is all I'm going to say." At the trial she maintained her innocence and, as we say, it took four weeks for the trial to conclude. 10. We have looked at the pre-sentence report that was prepared and that again shows not only her unwillingness to accept what had occurred but also a complete lack of remorse. 11. She has previous convictions for two offences of deception involving cheques with 63 offences taken into consideration, but that was in 1990 and could not constitute an aggravating offence in determining what is the appropriate sentence for this conspiracy. 12. The judge in his sentencing remarks said a number of things which bear repetition in this court. He said for example: "You have, in statements and in your evidence, made and persisted in thoroughly unpleasant allegations of lies, bullying, targeting, humiliation, abuse and corruption by officers both in uniform and in the CID, from constables to a chief inspector. No rank has escaped your insinuation." The judge also said: "You have duped and involved innocent members of the public as your rescuers and comforters, conning them by your tears and faux hysteria; and the result, as I have said, has been, literally, hundreds of hours of wasted police time and resources. Dozens of officers have been involved, directly and indirectly: uniformed and CID, armed officers, scenes of crime officers, helicopter pilots, police doctors, sexually trained officers, financial investigating officers, technical support officers, forensic specialists. Hours of Achieving Best Evidence interviews have been conducted. Hours of CCTV have been marshalled. There have been, literally, hours of evidence gathering, hundreds of phone calls and texts and hundreds of pages of notes and statements, all in pursuit of your fantasies. There has been a grotesquely wasteful programme of investigating, recording, photographing and sampling, all produced by your lies. This has all been carried out in a planned, premeditated, calculated and carefully executed way." 13. It is submitted on her behalf that no one was actually arrested as a result of the allegations that she made. That is right, but persons were questioned. We have already seen that her daughter was arrested and there can be no doubt that those who were the target of her allegations and others who recorded her false complaints (both lay people and police officers) would have suffered some stress as a result of what was happening. There is no doubt that the police had serious doubts about the validity of the complaints that were being made, but nonetheless, as Mrs Smullen rightly accepts, they were not able simply to treat the complaints as groundless, at least until much later on in the investigation. These were very serious allegations and had to be properly investigated. 14. Mrs Smullen is right when she says that this applicant certainly has a number of problems, but we have looked carefully at the reports about her mental health and there is nothing in those reports to suggest that she is suffering from some mental illness which caused her to believe genuinely that she had suffered the attacks of which she made complaint. Mrs Smullen seems to be suggesting that the applicant genuinely believed what she had said. We for our part cannot accept that submission. If she genuinely believed what she was saying then there would be serious mental health issues which would have been properly explored at trial. We have already mentioned the absence of remorse and we add to that the fact that she blames others for the predicament in which she finds herself. We have mentioned the delay. During that period awaiting trial she was on bail and required to live away from the Essex area. The conditions imposed on her did prevent her from using her phone and when she travelled into the nearby city she had to be accompanied. But in our judgment that should not have any impact on the sentence which was passed. 15. The pre-sentence report describes her as at low risk and in those circumstances Mrs Smullen submits the proper course now would be to suspend the sentence or to reduce the sentence. 16. We have looked at this case with considerable care. It is a very unusual case. We have looked at cases to which we have been referred: Inaam [2006] EWCA Crim. 1073 and also Walsh and Nightingale [1993] 14 Cr.App.R (S) 671. Neither of those cases give us any assistance in deciding whether the judge's sentence of four years' imprisonment was manifestly excessive. We take the view at the end of the day that this was a severe sentence but passed by a judge who had ample opportunity to see the applicant over a considerable period of time and severe as it may have been it cannot be properly described as manifestly excessive. This application is refused.

2009_09_23-2080.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/1915/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/1915

aa3dd446ea997be0c5a7df5c8a54322677976fbebd58b477fc528cdcf26c1f72

[2012] EWCA Crim 1434

EWCA_Crim_1434

2012-07-03

crown_court

Neutral Citation Number: [2012] EWCA Crim 1434 Case No: 201102274 C1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT NORWICH His Honour Judge Jacobs T20107111 Royal Courts of Justice Strand, London, WC2A 2LL Date: 3 July 2012 Before : LORD JUSTICE MOORE-BICK MR. JUSTICE KENNETH PARKER and THE RECORDER OF NEWCASTLE (sitting as a judge of the Court of Appeal, Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Respondent - and - WILLIAM ROW

Neutral Citation Number: [2012] EWCA Crim 1434 Case No: 201102274 C1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT NORWICH His Honour Judge Jacobs T20107111 Royal Courts of Justice Strand, London, WC2A 2LL Date: 3 July 2012 Before : LORD JUSTICE MOORE-BICK MR. JUSTICE KENNETH PARKER and THE RECORDER OF NEWCASTLE (sitting as a judge of the Court of Appeal, Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Respondent - and - WILLIAM ROWLEY Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. Simon Spence Q.C. (instructed by the Registrar of Criminal Appeals ) for the appellant Mr. Martyn Levett (instructed by the Crown Prosecution Service ) for the respondent Hearing date : 14 th June 2012 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Moore-Bick : 1. On 24 th March 2011 in the Crown Court at Norwich before His Honour Judge Jacobs the appellant was convicted of murder and was sentenced to life imprisonment. The minimum term to be served in custody was specified as 17 years. He was indicted jointly with his co-accused, Darren John Peake, who was acquitted. The appellant now appeals against conviction by leave of the Full Court. 2. The offence of which the appellant was convicted was committed on Sunday 31 st January 2010. In the early hours of the morning the deceased, Archie Kerr, aged 51, was assaulted outside his home in Great Yarmouth. He suffered serious head injuries which were consistent with having been struck with some considerable force with a heavy object. The injuries were not consistent with a single punch. Mr. Kerr died 2 months later on 2 nd April 2010 from a combination of bronchial-pneumonia and brain damage resulting from the assault. The appellant, Darren Peake and another man named Lee Taylor were all present in the vicinity of the deceased’s home at the time in question. After investigations, in the course of which Taylor was interviewed by the police at some length, the appellant and Peake were charged with the murder of Mr. Kerr. The appellant accepted that he had punched the deceased once before walking away but denied having used any kind of heavy object to cause the serious injuries that led to Mr. Kerr’s death. 3. The prosecution case was that this was a planned attack by the appellant and Peake acting together intending to cause at least really serious bodily harm to Mr. Kerr. It was said that the appellant had struck the initial blow as soon as the deceased opened the door and that he had then signalled to Peake who came over to lend assistance. The attack was said to have been carried out in revenge for an assault on the appellant earlier that evening by the deceased’s son, James Flynn, in the course of which the appellant himself had suffered serious injuries. 4. The appellant’s case was that, although he had been present at the scene of the attack, he did not inflict serious injury on the deceased and was not part of any agreement to do so. He had punched the deceased once, spontaneously, when the deceased came towards him. Thereafter he had walked away. He denied having signalled to Peake and said that he had simply pointed to Taylor who was standing on the other side of the road. 5. Peake’s case was that he had played no part in the attack on Mr. Kerr. He said that he had seen the appellant punch him, knocking him to the ground. When he went over to join the appellant he found him bending over Mr. Kerr, still punching him, and holding a fire extinguisher. Peake said that he had pulled the appellant away and had then left the area. He denied that any signal had passed between him and the appellant, but he admitted that he had signalled to Taylor who was farther along the road. 6. The question for the jury was whether the appellant, or Peake, or the two of them acting together, had killed Mr. Kerr, intending to kill him or cause him grievous bodily harm. 7. The main evidence for the prosecution took three forms: a CCTV recording; evidence from two witnesses who were at Mr. Kerr’s home at the time of the attack; and medical evidence. The CCTV recording showed the appellant, Peake and Taylor all in the vicinity of Mr. Kerr’s home in Deneside, Great Yarmouth at 01.39 a.m. The appellant approached number 37 and became involved with the person who opened the door. That person is now known to have been Mr. Kerr. At that stage Peake was some distance away and Taylor was on the opposite side of the road. The recording showed that the appellant had punched the deceased once in the face. It then showed Peake walking towards the scene of the attack before the camera panned away. 8. Carla Brooking, Mr. Kerr’s partner, said that she had been with him in his flat when they heard noises outside. He had gone to investigate, thinking it was his son, James Flynn, arriving home. A few seconds later she had followed him into the communal hallway and had seen his body lying outside on the ground, with his head on the doorstep. A man was leaning over him, holding a fire extinguisher with both hands at chest level. Initially she gave no more than a description to the police and said she did not know who the man was. Later, however, she identified the man with the fire extinguisher as Peake, whom she knew and had seen on a number of occasions in a local public house. Ms Brooking made it clear in cross-examination that she had not seen the attack itself. At a later stage in her evidence she said that she had seen the appellant a few times but that he was not the man she had seen holding the fire extinguisher. 9. Victoria Stockley, James Flynn’s girlfriend, who was also in the flat at the time of the assault, called the emergency services. She recalled Carla Brooking saying that the deceased had been hit with a fire extinguisher and that Peake was responsible. She had said that both before she went outside and also after James Flynn had arrived home in a taxi. She said that Peake had been wearing a white hooded jacket but that she did not recall what the appellant had been wearing. 10. Mr. Kerr sustained multiple fractures of the bones on both sides of his face, both above and below the eyes, fractures of the bones around his cheeks and a fracture of his lower jaw. The doctor said that he had rarely seen such extensive injuries and expressed the view that they were consistent with the application of significant force with a heavy object. In his view they were certainly not consistent with a single punch. The displacement of the lower jaw had caused an obstruction to the deceased’s airway causing difficulty in swallowing. He had also suffered injury to his brain. 11. The appellant was arrested and interviewed. He answered “No comment” to all the questions put to him, but in due course he served a defence case statement in which he accepted that he had been present outside the deceased’s home at the material time. 12. Taylor was arrested on 1 st February 2010 and in his initial interview declined to answer any questions. Mr. Kerr died on 2 nd April 2010 and on 5 th April 2010 Taylor received a text message from the appellant reading “Taylor, its ur Gorbals connection. what the fuk u up 2? Have u went queens on me? I can find u if u have.” In addition, between 2 nd and 15 th April Taylor received over 130 calls from mobile phones associated in one way or another with the appellant. 13. Taylor was interviewed again at the beginning of May and on that occasion gave a full account of what had happened. He said that he had been standing some distance away from the house containing Mr. Kerr’s flat on the other side of the road. He described having seen the appellant punch Mr. Kerr once, knocking him to the ground. At that point, he said, they both disappeared from view behind a low wall which ran along the pavement in front of the house. A little later he had seen the appellant stand up and walk away. He himself had then turned away to leave and as he did so he saw Peake walking towards the house. He said on at least one occasion during the interview that he was frightened of both the appellant and Peake. 14. Following the interview Taylor was told that he would not be charged and was invited to make a statement with a view to attending the trial as a prosecution witness. He expressed his fears and declined to do so. In the course of the interview he was asked to comment on the text message from the appellant. He said it was obviously a threat about what the appellant would do to him if he spoke to the police. There is nothing to indicate whether Taylor thought that the appellant might find out that he had spoken to police; we think it unlikely that he did, but it is fair to say that the text message did not prevent him from speaking out. Whether it caused him to tailor his account may be another matter, but we are not concerned with that. The police saw Taylor again in June 2010 and tried to persuade him to give evidence for the Crown, but he was unwilling to do so. We shall have to return to that conversation at a later stage. 15. In due course the appellant alone was convicted of the murder of Mr. Kerr. Peake was acquitted. 16. This appeal is concerned with the admissibility of the various statements made by Taylor to the police in the course of his interview in May 2010. By the time of the trial he had disappeared and there were strong reasons for thinking that he was in Spain. In mid-December 2010 the prosecution served notice of their intention to apply to adduce in evidence under section 116 of the Criminal Justice Act 2003 a transcript of what he had said in that interview in order to establish the appellant’s presence at the scene of the crime. A witness summons was issued to compel Taylor’s attendance at the trial, but it could not be enforced while he was abroad. However, on 30 th December 2010 the appellant served a defence case statement admitting that he had been present at the time of the attack and as a result the prosecution abandoned its application to adduce the record of Taylor’s interview in evidence. The appellant had not objected to the prosecution’s application, because his defence team thought that Taylor’s account could provide some support for his case. The day after the prosecution abandoned its application, therefore, he applied to adduce the record of Taylor’s interview himself, but after holding a voire dire, in the course of which he heard evidence from Taylor’s mother and two of the police officers who had been involved in the investigation, the judge dismissed the application. He did so because he was satisfied that by sending the text message mentioned earlier the appellant had frightened Taylor and had caused him to leave the country in order to avoid being called as a witness at the trial. 17. The sole ground of appeal in respect of which the Full Court gave leave is that the conviction is unsafe because the judge wrongly ruled that the statements made by Taylor in interview were inadmissible under section 116 of the Criminal Justice Act 2003 . 18. The material parts of section 116 provide as follows: “(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if— (a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter, (b) the person who made the statement (the relevant person) is identified to the court's satisfaction, and (c) any of the five conditions mentioned in subsection (2) is satisfied. (2) The conditions are— . . . (c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance; (d) that relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken; . . . (5) A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances described in that paragraph are caused— (a) by the person in support of whose case it is sought to give the statement in evidence, . . . in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the statement).” 19. The judge found that, despite having made all reasonable efforts, the prosecution had been unable to find Taylor, although it was fairly clear that he was abroad, probably somewhere in Spain. He was satisfied to the criminal standard that Taylor was outside the United Kingdom. His mother had told the police that he was in Spain and it had been easy to confirm that that was the case because he rang his mother from a Spanish number while they were present. On the basis of the evidence of the text message, the evidence of the police officers and the evidence of Taylor’s mother on the voire dire the judge found that Taylor had gone to ground because he did not want to give evidence in the trial. He had done so because he was frightened of both defendants and of Flynn. As a result the judge said he was “completely sure” that the circumstances described in section 116(2) (c) and (d) had been caused by the appellant in order to prevent Taylor from giving evidence and that the record of his interview was therefore rendered inadmissible on his application by subsection (5). 20. It was common ground that the conditions in subsection 2(c) and (d) were satisfied in this case. In those circumstances Mr. Simon Spence Q.C. for the appellant submitted that the judge’s ruling was wrong because the evidence before the court was incapable of supporting the judge’s finding that Taylor’s unavailability was caused by the appellant’s text message. Moreover, he submitted that even if that message was the cause, or one of the causes, of his absence, it had not been sent in order to prevent Taylor from giving oral evidence in the proceedings, since there were no relevant proceedings in existence at the time it was sent. He submitted that Taylor’s evidence tended to support the appellant’s case since it was inconsistent with Peake’s assertion that he had intervened in the attack by the appellant on Mr. Kerr by trying to take the fire extinguisher from him. As a result of its exclusion, therefore, the conviction was unsafe. Mr. Martyn Levett for the Crown challenged all three of those submissions. 21. It is worth making the point at the outset that section 116(2) (c) and (d) render hearsay evidence admissible, subject to the provisions of subsection (5), if certain conditions are satisfied. Whether the conditions themselves are satisfied is a question of fact, as is the question whether the provisions of subsection (5) take effect. If the requirements of the section are not satisfied, the evidence is not admissible; admissibility does not depend on the exercise of judicial discretion. The principal question for the court on this appeal, therefore, is whether the evidence before the judge was capable of supporting his findings that the text message sent by the appellant to Taylor on 5 th April 2010 caused him to go into hiding abroad in a place from which, if he could be found at all, it was not reasonably practicable to obtain his return and had been sent in order to prevent him from giving oral evidence at the trial 22. The judge described the appellant’s sending the text message to Taylor as “the clearest case of intimidation.” Mr. Spence did not seriously contest that, but he reminded us that it had been sent many months before Taylor had gone abroad and had not inhibited him from talking to the police at the beginning of May only a month later. He also reminded us that Taylor had remained in Great Yarmouth for some months afterwards and had met the appellant and others involved on a number of occasions during that time. He therefore submitted that the text had not itself caused Taylor to be so frightened that he felt he had to get away. 23. When the police spoke to Taylor in June 2010 he made it clear that he was unwilling to provide a statement or give evidence at the trial. He said that he was unable to face going into court in front of the families of the defendants and the deceased and giving his evidence in formal surroundings. He made some comments which tend to support the conclusion that he was frightened of the possible repercussions from the appellant, but he also made a number of comments which could be interpreted as indicating that he simply could not face the prospect of giving evidence in front of the families of the deceased and the two accused. The way in which Taylor expressed himself on that occasion led Mr. Spence to submit that what really caused him to leave the country was not the threat from the appellant, which he had received before he gave his account in May 2010, but simply his inability to face up to the possibility that he might be brought to court against his will and required to give evidence in public. However, that was not the totality of the evidence before the judge, who had also heard from police witnesses and, importantly, from Taylor’s mother, who had told him that Taylor was frightened of the appellant. 24. Section 116(5) provides that a condition set out in any paragraph of subsection (2) is to be treated as not being satisfied if it is shown that the circumstances described in that paragraph have been caused by the person in support of whose case it is sought to give the statement in evidence in order to prevent the witness giving evidence in person. As the judge pointed out, the principle underlying section 116(5) is that a person who is responsible for the absence of the witness whose hearsay evidence he wishes to rely on should not be allowed to benefit from the fact that the witness is unavailable to give evidence in person if he brought that situation about deliberately. Hearsay evidence may often be reliable, but it suffers from three principal drawbacks. The first is that the statements relied on can be proved without the need for the maker to stand up in court and repeat them under oath. As everyone knows, witnesses do not always give evidence entirely in accordance with their written statements, or, in the case of previous oral statements, in accordance with what they previously said. There may be many reasons for that, not only impaired recollection but a heightened awareness of the importance of accuracy and of careful consideration of the way they express themselves. The second is that the jury do not have the benefit of seeing the witness give evidence and are therefore deprived of a valuable tool for the purpose of making an assessment of his or her credibility. Often a statement made out of court, particularly if it is in writing, can be made with a degree of confidence that the witness does not carry when giving the same evidence in person. Third, and most importantly, there is no opportunity to test the evidence by cross-examination, to probe its weaknesses and to diminish its impact. For these reasons, although a hearsay statement may carry less weight than robust oral testimony to the same effect, it may, especially if written, be powerful evidence which does not carry the attendant risks of calling the witness in person. That is no doubt why Parliament thought it appropriate to enact subsection (5) of section 116 . 25. In the present case it seems likely that Taylor’s absence was motivated in part by fear of the appellant, in part by fear of Peake and Flynn and in part by a more general inability to face up to the prospect of giving evidence. Certainly the prospect of being required to attend court appears to have precipitated his departure, because he showed no sign of leaving Great Yarmouth until the prosecution obtained a witness summons to compel his attendance, but that of itself tells one little about the factors weighing on his mind at the time. Once he realised that he was likely to be compelled to give evidence he would probably have acted in the same way, whether out of fear of the appellant or others or an inability to face giving evidence in open court. 26. It is unfortunate that we have not had the benefit of seeing a transcript of the evidence given on the voire dire, but having heard the evidence of the police officers involved in the investigation and that of Taylor’s mother, to both of which he referred in his ruling, the judge was convinced that the appellant’s threat was still operating on his mind. We take that to mean that he was satisfied that it was the primary cause of Taylor’s absence, but at any rate, as Mr. Spence acknowledged, he must have been satisfied that it was at least one of the effective causes of his absence. In our view it is sufficient for the purposes of subsection (5) that the action of the party seeking to adduce the hearsay evidence should have been an effective cause, albeit not the only cause, of the witness’s absence, since to hold otherwise would significantly undermine the policy of the legislation. In our view the evidence before the judge was well capable of supporting such a finding. 27. In those circumstances we are unable to accept Mr. Spence’s submission that, even if the appellant’s threat did cause Taylor to leave the country, it was not made in order to prevent Taylor giving oral evidence in the proceedings, because at the time it was made no proceedings had been instituted in relation to the death of Mr. Kerr. The purpose of the text message was to warn Taylor that he should not give an account of the events of that night that might incriminate the appellant and that, if he did so, the appellant would take his revenge. That was not limited to any account he might give to the police but was intended to be understood, and we have no doubt was understood, as extending to giving evidence against the appellant in any proceedings that might ensue. Although the reference to “the proceedings” in subsection (5) must refer to the proceedings in which it is sought to adduce the evidence, we see no reason to interpret the subsection as limited to steps taken after the commencement of the proceedings. If, as we think, the purpose of the provision is to prevent the person who is responsible for the absence of the witness from adducing his evidence in the form of hearsay, it is of no relevance whether the proceedings had or had not been started at the time when the relevant acts were performed. The only question of importance is whether the acts were done in order to prevent the attendance of the witness at the proceedings. In the present case the judge was entitled to find that the text message was sent for that purpose and that its effect persisted up to and indeed beyond the time when Taylor left the country. 28. For those reasons we are satisfied that the judge’s findings of fact cannot be impugned and that he was right to hold the statements made by Taylor to the police in interview were not admissible in support of the appellant’s case. The appeal must therefore be dismissed.

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/1434/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/1434

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[2010] EWCA Crim 2923

EWCA_Crim_2923

2010-12-01

crown_court

Neutral Citation Number: [2010] EWCA Crim 2923 Case No: 2010/5150/A7, 2010/5164/A7, 2010/5163/A7, 2010/5161/A7, 2010/5160/A7, 2010/5159/A7, 2010/5158/A7, 2010/5157/A7, 2010/5156/A7, 2010/5155/A7, 2010/5153/A7, 2010/5151/A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 1 December 2010 B e f o r e : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE CALVERT-SMITH MR JUSTICE GRIFFITH WILLIAMS - - - - - - - - - - - - - - - - - - - - - R

Neutral Citation Number: [2010] EWCA Crim 2923 Case No: 2010/5150/A7, 2010/5164/A7, 2010/5163/A7, 2010/5161/A7, 2010/5160/A7, 2010/5159/A7, 2010/5158/A7, 2010/5157/A7, 2010/5156/A7, 2010/5155/A7, 2010/5153/A7, 2010/5151/A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 1 December 2010 B e f o r e : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE CALVERT-SMITH MR JUSTICE GRIFFITH WILLIAMS - - - - - - - - - - - - - - - - - - - - - R E G I N A v IVAN BUXTON EMMA BYRON DAVID CLEMENTS AGNES VONGEGERFELT TREVOR HOUGHTON CATHERINE LAMBERT JOSEPH SHORT EMMA SIMON ZOE SMITH NICHOLAS KASSAM DANIEL QUIGGIN JAMES ALDRIDGE - - - - - - - - - - - - - - - - - - - - - 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 B Newton appeared on behalf of the Applicants Miss R Knight appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE CALVERT-SMITH: On 8th July 2010 at Merthyr Tydfil Crown Court these 12 applicants pleaded guilty to a count of malicious obstruction of a railway contrary to section 36 of the Malicious Damage Act 1861 . A second count brought under section 35 of the same Act in respect of the same facts was not proceeded with. It may be noted that the offence under section 35 with a maximum sentence of life imprisonment is an indictable only offence which meant that the whole case had to be tried at the Crown Court, whereas the section 36 offence (which was eventually the only count to be dealt with and the only count before us) could, and in our judgment should, have been dealt with summarily. 2. On 13th August 2010 all 12 applicants were sentenced in identical terms by the learned judge, His Honour Judge Curran. The sentences were a conditional discharge for two years in all cases and an order that each defendant pay £60 towards the costs of the prosecution. Four of the applicants were ordered to pay compensation to Miller Argent (South Wales Limited), the applicant Buxton £100 and the other three £250. Finally, following an application which the prosecution had been encouraged to make by the judge himself, the judge made restraining orders in respect of all of the applicants under section 5(1) of the Protection from Harassment Act 1997 . Save for the names and dates of births of the defendants as they then were, these orders were in identical terms. 3. After reciting the defendants' details and the offence of which they had been convicted and its date, the orders read, under a standard form heading: "For the purpose of protecting Miller Argent (South Wales Limited) from further conduct which amounts to harassment or will cause fear of violence, the defendant is prohibited from..." And there then followed six paragraphs which we need not recite in detail in view of the narrow ambit of this appeal, directing the given defendant not to be upon land, roads or railways which concern the site at which this offence had been committed. 4. The application for permission to appeal has been referred to the full court by the Registrar and we grant permission. 5. The single matter which the appellants seek to challenge concerns the restraining order. Albeit that the grounds were drafted in a different order, the first ground of principle advanced by the appellants is that a restraining order may not be imposed in order to protect a limited company. The second ground was that even if such an order may have been imposed it was wrong to do so in this particular case for reasons which Mr Newton has set out. 6. The brief facts of the case are that the appellants are or were then, at least, environmental protesters. They had travelled in convoy from Bristol and other parts of the South West to a single track railway which runs from a coal mine near Merthyr Tydfil to Aberthaw Power Station in Glamorgan. The mine is on derelict land being reclaimed from its former use to extract both coal and iron ore. Part of the reclamation of this land involves open-cast mining. The coal extracted in this way is sold in order to fund the reclamation. 7. At 1.10 on the afternoon of 26th April 2010 the police were called to a crossing on the railway. There they found three of the appellants, two of whom had chained themselves to the railway line. The third had superglued himself to the two who were chained to the line. After some hours they were released by specialist police officers. At six o'clock that evening officers found four more of the appellants with their arms joined together by chains and superglue to metal pipes laid under the track at a different point on the line. Others were standing by and two were providing refreshments. They were all arrested. 8. The company, Miller Argent, lost some £8,000 as a result of the disruption to their operation. A train which had been carrying a full load of coal had to wait for many hours while the protesters were freed from the line before proceeding to its destination. 9. Although the appellants elected not to answer questions when they were arrested, it was conceded by the prosecution that the pleas tendered at the Crown Court would have been tendered at the Magistrates' Court had the matter remained there. 10. In passing sentence the judge dealt first with the substantive sentence (the conditional discharge) and the matter of costs. Although three of the defendants had previous convictions for similar types of offence and one of those was actually in breach of a conditional discharge, he decided not to differentiate between any particular defendant in that regard. In describing the gravity of the offences, he said this: "I bear in mind that it [meaning the blocking of the line] was done at a time when you knew there was not a train actually running, and that although the line was blocked to prevent the coal train from going down it, this is not one of those cases where any person or individual would have been put at any physical risk of injury. And I accept that the way in which you set about the protest was aimed at achieving that result, and not putting anybody at risk. Nonetheless a significant financial loss was sustained by the company. And while I bear very much in mind the observations of Lord Hoffman, which have been referred to me before, that we live in a democracy and it is important that the right of peaceful protest should be preserved, at the same time one has to bear in mind that companies like Miller Argent are going about their business in a perfectly lawful manner and they are also entitled to the protection of the court against financial loss being occasioned by protest against their activities. Nothing wrong with the protest, but certainly something wrong with occasioning financial loss to a company which is going about its lawful business. All that being said, I bear in mind that I am dealing with people who are first of all intelligent, first of all people who are not criminals, I emphasise, although what they have done does amount to an offence under an Act which creates criminal offences. This is not a case where any question of a sentence of imprisonment is appropriate. And I have to decide in the circumstances of this case what the best way of dealing with the case is." Having dealt with the fact that he was not proposing to differentiate between particular defendants, he said this: "The effect of that order [namely the conditional discharge he proposed to impose] has important consequences from the point of view of the Rehabilitation of Offenders Act, as counsel will no doubt explain to the defendants. And I have come to that conclusion because I am satisfied that although they have been convicted of an offence, having indeed pleaded guilty to it, it is not in the circumstances of this particular case to order any punishment by way of a criminal penalty." Mr Newton has reminded the court that that indeed is the effect of a conditional discharge, which is not treated as punishment and only remains on the record for the length of the purposes of the Rehabilitation of Offenders Act 1974 the discharge. He then dealt with the question of costs and turned at page 4C of the transcript to the question of a restraining order. He said: "I have been invited by counsel not to make a Restraining Order in this case. But I have come to the conclusion that it is appropriate. I take that view because I bear in mind very much that I am dealing with people who feel very strongly indeed about the Environment and about the potential effects of climate change. Everybody is concerned about that, but I am view of the view in this case that the company and those directly involved, its employees, both the employees of Miller Argent, of Network Rail and those employed at the Aberthaw Power Station, are entitled to an Order restraining the defendants from going back to the premises, and I will give an indication of the nature of restriction, to prevent them being subjected to any further harassment." Pausing there, the order itself, which we have already recited, refers to further harassment. It is worth observing, as we will do later, that the section under which this order is made does not require further harassment. The word "further" has in fact been deleted from the section by schedule 10 paragraph 43 of the Domestic Violence, Crime and Victims Act 2004. 11. He repeated those opinions in his next paragraph focusing, as Mr Newton has rightly submitted, on the question of harassment and in particular harassment in the future of employees of any of the three companies or concerns he had named. He concluded, having set out the terms of the restraining order, at 5G: "It seems to me proportionate, reasonable and necessary to make that restraint, which in no way interferes with the individual liberty of any of the defendants concerned, limited as it is to those particular premises and areas." As we have already indicated, none of these defendants, as they then were, came from the area having travelled from Bristol or further afield in order to make their protest. 12. The legal framework is contained within section 5(1) the Protection from Harassment Act as amended. Section 5 under the heading "restraining orders" reads: "(1)A court sentencing or otherwise dealing with a person ('the defendant') convicted of an offence may (as well as sentencing him or dealing with him in any other way) make an order under this section. (2) The order may, for the purpose of protecting the victim of the offence, or any other person mentioned in the order, from conduct which— (a) amounts to harassment, or (b) will cause a fear of violence, Prohibit the defendant from doing anything described in the order. (3)The order may have effect for a specified period or until further order." 13. ... (5) If without reasonable excuse the defendant does anything which he is prohibited from doing by an order under this section, he is guilty of an offence. (6) A person guilty of an offence under this section is liable— (a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both, or (b) on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both." As we have already noted, the section now reads differently to the way it read when originally enacted. Originally the words, "under section 2 or 4 " were inserted within subsection (1) after the word "offence", and the word "further" was inserted after the word "from" in subsection (2), so that for an order to be made until the passage of the Domestic Violence, Crime Victims Act 2004 there had to have been a conviction for harassment under sections 2 or 4 and the order was available to protect the victim of that offence or any other person mentioned in the order from further such conduct. 14. Is it lawful to make a restraining order under the Prevention from Harassment Act for the protection of a company? In the alternative, because Mr Newton realistically accepted that this might be an alternative way of phrasing such an order, is it lawful to make such an order in respect of a group of persons such as the unnamed employees of a company? 15. Two cases were cited in support of his contention that the answer to both questions should be no. Both cases were decided before, as he concedes, the ambit of section 5 was extended in the way we have described. They can therefore, in our judgment, be quite briefly summarised and effectively dismissed. The first is the case of Mann which we have in transcript form only 99/7589/X5. This appellant had been convicted of an offence of harassment and an order made against him under section 5 of the Act. The order failed to mention the person or persons whom it was intended the order should protect. The Court of Appeal amended the order on appeal so as to name two particular persons against whom the harassment had been directed. 16. The second is the case of Dziurzynski [2002] EWHC 1380. In this case the defendant was an animal rights protester who had been convicted under section 2(2) of the Protection from Harassment Act 1997 of engaging in a course of conduct amounting to harassment of the employees of a company. The District Judge hearing the case made a restraining order against him. The court rejected the appellant's primary ground (the appellant being the Director of Public Prosecutions in that case) that the District Judge should have allowed the case to proceed beyond the close of the prosecution case. Having disposed of the appeal that was perhaps all the court needed to do but because the points had been made it went on to discuss other grounds, in particular the grounds which Mr Newton has relied on. It found that the Act, as then drafted, was indeed aimed at the protection solely of individuals and that therefore corporate persons could not be the victims of harassment and be granted the person protected by a restraining order. At paragraph 32 of his judgment he said: "I accept of course that the word 'person', unless the contrary intention is shown, is, as Mr Hatton on behalf of the Crown submits, to be understood, by virtue of the Interpretation Act 1978 , as including a body of persons corporate or incorporate. But that said, it seems to me that the legislative history to which, in my view, reference can properly be made when construing what is meant by the word 'person' in section 1 of the Act, points against person here meaning a corporation. It is to my mind also significant that in section 4(1) the word 'him' is used, and in section 5(2) the word 'victim' is used." He also went on to deal with the question of identification - the subsidiary question here as to whether an order might have been made for the protection of the employees for instance of the limited companies in question. In that case the order had been made in respect of employees of a particular company and the question, again referring back to the way in which the Act then stood with the requirement of a conviction under section 2 in respect of named victims and of course a course of conduct, that unless the order could be aimed at what had been described in earlier cases as "members of a close-knit definable group" then such an order could not be made under section 5 . Mr Newton concedes that the change in the law means that that question cannot be decided purely by reference to a case decided under the old section 5 . As Rose LJ in Dziurzynski indicated the Interpretation Act 1978 is perfectly clear. In a schedule to the Act persons are described as "person includes a body of persons corporate or unincorporate". 17. We have considered the submission that a company cannot be the subject of an order and have been assisted by a much more recent judgment in the case of Smithkline Beecham PLC and others [2009] EWHC 1488 (QB) in which Smithkline Beecham and the other corporate claimants had sought an injunction under section 3 of the Act and the question therefore whether a company could come within the terms of the Act was discussed. At paragraph 43 of his judgment, Jack J said this: "By section 5 and schedule 1 of the Interpretation Act 1978 , in a statute, unless a contrary intention appears, 'person' includes a body of persons corporate or unincorporated. That is the context in which section 7(5) is to be understood. Section 7(5) is necessary because otherwise there is the possibility that the sections of the Act including the new section 1(1A) could be read as covering companies who are harassed. Section 7(5) makes it clear that this is not so. By making that clear it also makes clear that it is only the victims of harassment who are so limited. So 'person' in section 1(1A)(c) is not limited to individuals and may be a body corporate. Thus a company may apply for an injunction pursuant to section 3A where the company falls within section 1(A)(c). The White Paper which preceded the Act made this intention very clear, but, there being no ambiguity, there is no need to refer to it. It was suggested that this construction gave rise to difficulties with section 5 and 5A . I do not think that this is so. I conclude that the corporate claimants are entitled here to claim relief under section 1(1A) of the Act." ] 18. Mr Newton rightly submits in respect of section 5 at least that remark we have just quoted is obiter. However, we have heard nothing from him to persuade us that as the Act now stands an order under section 5 cannot go against a company in a given case. It may well be that the sorts of case in which such an order is appropriate will be rare because it will no doubt usually be possible to identify individual persons or groups of persons by reference to their status as people rather than by referring to the limited company which employs them, but in principle we see no objection at all in law to the imposition of a restraining order which names a limited company as the protected person. 19. Having found as we do, it should be clear that we see no objection either, on the basis that was originally set out in Dziurzynski , to groups of persons, provided those groups are sufficiently clearly defined for them to know who they are and for the person against whom the order is made to know who they are, so that everybody will be clear what persons are included in the order and what persons are not. 20. The principal ground, which Mr Newton put as his first ground, was as to whether in this particular case such an order was appropriate. We must record, if we may, our gratitude both to him and to Miss Knight for the clear way in which they have argued both grounds. This ground in particular was extremely well argued on both sides and we have not found it easy to decide. 21. The appellant submits that no one at the site of this offence was in fact harassed in any reasonable sense of the word and that His Honour Judge Curran made that clear, as we have said, in his sentencing remarks. Second, Mr Newton submits that there was no reason in this case to apprehend that even if the defendants were to breach the terms of a conditional discharge or, following its expiry, to commit a similar offence either at this coal mine or elsewhere, that anybody would actually be harassed or put in fear of violence in the future. There was therefore, he submits, nothing upon which this order could really bite. In addition, he submits that because of the way in which, as we have set out, the learned judge rightly categorised these offences and these offenders, it was inappropriate for a potentially draconian order to be made in respect of such offending. He points out, albeit without any evidence to justify this, that it is perhaps less likely that anybody seeking employment who had to declare that they were subject not only of a conditional discharge but of a restraining order would get the job they had applied for, so there is potentially a real consequence, he submits, for defendants who have been characterised as peaceful and otherwise wholly law-abiding citizens who are, as he would put it, punished by such an order. 22. Against that Miss Knight has pointed out that there is at least a degree if not of harassment in this case of more than mere inconvenience involved. In a given case, albeit not this one, the sight to an employee train driver of people chained to a track in front of him might induce considerable anxiety, if not worse. Further, she submits that there is a broader mischief of demonstrations of this kind, and whole sections of the population who are entitled to think that they can go to work in peace every day are not able to do so if their work places are effectively prevented from operating by such demonstrations. 23. There are a number of practical reasons why the making of such an order seems sensible: no necessity to go to another court to seek a civil injunction in an attempt to ban these defendants and perhaps others from further disruptive visits to the company's site; the possibility that a restraining order in respect of one set of defendants might conceivably discourage other persons from coming behind them to commit similar offences without the risk of breaching a conditional discharge or a restraining order, so that a message might be sent out to people in the future. 24. There are powers in the criminal courts to other powers to restrain offenders. There is the power to bind-over to be of good behaviour. That power cannot, as we understand it, and it is not suggested otherwise, be used to exclude persons from particular places. There was once, at least it was exercised in some criminal courts, a power to bind-over to come up for judgment, the power not to be exercised if the person concerned for instance left the jurisdiction within a certain time. But again, if it still exists, this is not a practicable remedy in a case like this. It is not submitted by the prosecution or by Mr Newton that this degree of offending would ever justify the imposition of an anti-social behaviour order which can prohibit persons from going to particular places. 25. As we have said, we have not found this easy. Against the practical sense of the imposition of the order has to be set the findings of the judge in this particular case and the lack of any evidence brought forward by the Crown, who had not intended originally to apply for such an order, that there was indeed any actual harassment or anything close to it or any perceived danger from anything said or done by any particular defendant to put anybody in fear of violence. 26. In those circumstances, with some hesitation, we have come to the conclusion that it was not appropriate in this case for a restraining order to be made in the terms that it was, for the reasons we have given. However, we would wish to say this. Any future case, whether it is at this particular mine or anywhere else, where this sort of behaviour takes place, may well justify the making of such an order, in particular of course if there were evidence of the kind to which we have just referred to indicate that there was a real fear of actual harassment or violence in the future and we hope that this judgment at least makes clear that such an order could be made in appropriate circumstances either to protect a limited company or its employees. To that extent, therefore, this appeal is allowed. 27. MR NEWTON: My Lord, if I could briefly raise the matter of Steven Jones, who was the thirteenth defendant. I do not speak for him any more, he withdrew his appeal two weeks ago, but I just raise for your Lordship's consideration whether there is an anomaly there which the court wishes to consider in that the restraining order continues to exist in his regard. 28. THE LORD CHIEF JUSTICE: You are not instructed and he is not here. 29. MR NEWTON: Exactly, my Lord. I simply raise it my Lord. I do not make any submissions on his behalf. 30. THE LORD CHIEF JUSTICE: We understand you doing so, but there is nothing we can do for him. 31. MR NEWTON: So be it.

2010_12_01-2568.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/2923/data.xml

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10a39835bf8ca05555eef9d182d11938d8bcfe8561e42e05e4d689fddd019215

[2023] EWCA Crim 1543

EWCA_Crim_1543

2023-12-01

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2023] EWCA Crim 1543 CASE NO 20223708/B4 Royal Courts of Justice Strand London WC2A 2LL Friday, 1 December 2023 Before: LORD JUSTICE WILLIAM DAVIS LADY JUSTICE WHIPPLE DBE HIS HONOUR JUDGE WATSON (Sitting as a Judge of the CACD REX V ROMAIN LAPIERRE __________ 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 M NELSON KC appeared on behalf of the Applicant _________ J U D G M E N T 1. LADY JUSTICE WHIPPLE: This is a renewed application for leave to appeal against sentence. On 2 December 2022, following a trial at the Central Criminal Court before his Honour Judge Kay KC, the applicant was sentenced by the same judge to custody for life with 28 years as a minimum term for murder, with a sentence of nine years' detention in a young offender institution to be served concurrently for robbery. 2. The facts are set out in the Criminal Appeal Office summary. It is sufficient to record the following brief details. The robbery occurred in the late evening of 30 June 2021. The applicant was part of a group. A taxi was called. The applicant got into the back of the taxi, put his arm across the front of the driver's neck and pressed a Rambo-style knife to the driver's throat demanding the car key. Another member of the group reached through the driver's window and took the driver's mobile phone. The taxi was blocked in by others. The driver got out of his vehicle and handed over the key. 3. The murder occurred in the early hours of the following morning. The group, including the applicant, travelled in the stolen taxi via other addresses to a house where the 16-year-old victim, Cameron Smith lived with his mother. Cameron Smith was at that address. The group wore face coverings and were armed with machetes or Rambo knives. The group knocked on the front door before the door was kicked in. The moment they got into the house the knife attack started. The victim ran upstairs to his mother's bedroom where he and his mother tried to keep the group out but some of the group forced their way in and the attack continued. The applicant was one of two individuals attacking Cameron Smith. The applicant inflicted the fatal wound. That wound cut through a loop of bowel and two major blood vessels. The wound was 11 centimetres in length and was said to have required at least moderate force. 4. At the time of these offences the applicant was two weeks short of his 19th birthday (his date of birth is 16 July 2002). The murder was in revenge for the killing of a member of the applicant's own gang which had taken place on 30 June 2021. 5. The judge's starting point in setting the minimum term for sentence was 25 years. As aggravating factors the judge held that the applicant had intended to kill his victim, that there was a significant degree of planning and premeditation, including the robbery. He noted that the group wore balaclavas and masks and had turned their phones off. The applicant was, he said, the ringleader of the group. The murder itself was vicious and heartless. The judge noted the applicant's extensive antecedents, namely 14 convictions for 26 offences including offences for robbery and knife possession as well as drugs. 6. The judge thought there were no mitigating factors other than age. If anything the applicant was "mature beyond his years". The judge took account of the applicant's ADHD and unstable upbringing but held that those factors could provide little mitigation. 7. The court had a pre-sentence report before it relating to a previous offence (report dated 22 June 2020). It set out details of the applicant's background and life difficulties. 8. The judge imposed custody for life with a minimum term of 28 years, less time spent on remand, with the sentence of nine years' detention for the robbery to be served concurrently. 9. Miss Nelson KC represented the applicant at trial, sentence and on this renewed application. In her written grounds of appeal, she submitted that the sentence imposed was manifestly excessive for the following reasons. First, the judge erred in finding there was an intention to kill. Secondly, the judge failed to take proper account of the applicant's age and other mitigation. Thirdly, the judge failed to take proper account of totality. 10. We thank Miss Nelson for her oral submissions this morning which have been clearly expressed and helpful. She presses on us that when considering whether there was an intention to kill the pathologist said that there was at least moderate force used by contrast with the judge's reference to considerable force. She argues that the confession by the applicant to his father should not have been taken into account because it was quite possibly a confession made in anger. She says that the mixed verdicts returned on the other co-defendants should have been taken into account as tending to show that there was no intention to kill. Her over-arching submission is that there was an intention only to cause grievous bodily harm. 11. So far as the factors going to mitigation are concerned, she stresses this applicant's difficult life history with ADHD and ODD. She notes his early years spent without paternal support and in care. She argues that his previous antecedents are a reflection of the circumstances of his childhood and past exploitation. 12. All of these points were considered and rejected by the single judge. We too reject them. Dealing with the first ground, it was plainly open to the judge to conclude that there was an intention to kill. The nature and extent of the injuries and the circumstances of this attack provide plentiful evidence of that. That conclusion is entirely consistent with the pathologist's view going to the force used (described by the pathologist as moderate). The judge was entitled to use a different word, “considerable” to describe the force of the fatal stab wound. More broadly we look at the overall circumstances of this attack, as the judge did. The fact that the conviction was by a majority verdict does not diminish the weight of the evidence that was before the judge, nor do the verdicts in relation to other defendants impact on the verdict as it was returned as against this applicant. We cannot accept Miss Nelson's submission that the intention was short of an intent to kill. 13. We deal with the second and third grounds together, namely mitigating factors and totality. The facts of this offending are striking in their brutality. On any view an increase above the 25-year start point was necessary. The murder was pre-planned and co-ordinated. The attack took place in the deceased's own home and in front of the deceased's own mother, indeed in her bedroom. The attack itself was sustained and brutal. Further, the previous robbery at knifepoint was a very serious aggravating factor and it was the applicant who used the knife to threaten on that occasion. The robbery forms part of a sequence of events that culminate in this terrible murder. The applicant had many previous convictions, some of which very relevant; that stood as significant aggravation. But for the mitigation in this case, we conclude that the minimum term could reasonably have exceeded 30 years for a mature adult offender. 14. There was mitigation for the applicant in his young age but the judge did not consider that he lacked maturity. That was very much an assessment for the trial judge to make. The judge thought if anything the opposite was true and this was an individual who was mature for his years. It is of course right to note that this applicant had a very troubled upbringing and he had been looked after from the age of 12 and at the time of offending he was a care leaver. All this was before the judge. We conclude that the judge was entitled to consider that those factors carried relatively little weight in the exercise overall. We are not persuaded that there was a failure by the judge to take account of totality or of mitigating factors. 15. We agree with the single judge that the minimum term imposed was not manifestly excessive, even arguably, and we refuse leave to appeal against sentence. 16. MISS NELSON: My Lords, may I apply, I think I have to, for a representation order. 17. LORD JUSTICE WILLIAM DAVIS: You can apply. We will rise very briefly to consider that. (Short adjournment) 18. LORD JUSTICE WILLIAM DAVIS: Miss Nelson, thank you very much for your attendance but I am afraid we cannot give you a representation order. 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]

2023_12_01-5928.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1543/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1543

1d5ed2376ff9daa70594e1271f8cfe6605ff8edc884c8ce6e5c74f2f89f48155

[2007] EWCA Crim 3

EWCA_Crim_3

2007-01-26

supreme_court

Neutral Citation Number: [2007] EWCA Crim 3 Case No: 200505117/B4 200505118/B4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT LUTON The Hon. Mr. Justice Wilkie Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/01/2007 Before : LORD JUSTICE HUGHES MRS JUSTICE RAFFERTY and MR JUSTICE MCCOMBE - - - - - - - - - - - - - - - - - - - - - Between : Roger Vincent and David Smith Appellant - and - The Queen Respondent - - - - - - - - - -

Neutral Citation Number: [2007] EWCA Crim 3 Case No: 200505117/B4 200505118/B4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT LUTON The Hon. Mr. Justice Wilkie Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/01/2007 Before : LORD JUSTICE HUGHES MRS JUSTICE RAFFERTY and MR JUSTICE MCCOMBE - - - - - - - - - - - - - - - - - - - - - Between : Roger Vincent and David Smith Appellant - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr O P POWNALL QC AND MR T KENDAL (instructed by THE REGISTRAR OF CRIMINAL APPEALS ) for the DEFENDANT ROGER VINCENT MR J K BENSON QC AND MR T MCCALLA ( instructed by THE REGISTRAR OF CRIMINAL APPEALS ) for the DEFENDANT DAVID SMITH MR A J BRIGHT QC (instructed by THE CROWN PROSECUTION SERVICE Hearing dates : 12/12/06 and 13/12/06 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Hughes : 1. On Friday 3 October 2003 a man called King was gunned down from a passing van in the streets of Hoddesdon soon after nine o’clock in the morning. It was common ground at the trial that this was a planned execution carried out in pursuit of some serious criminal dispute. These two applicants were convicted of the murder. They seek leave to appeal against their convictions. They had been tried together with two other Defendants. One of them, called Attridge, also faced the charge of murder, but was acquitted by the jury. A fourth, Elfes, was convicted of the offence of assisting an offender. The principal proposed grounds of appeal arise from the participation of Attridge in the trial. (1) It is contended by both applicants that the trial should have been severed and these two defendants tried separately from him. (2) Vincent complains that the use made by the Crown of Attridge’s police interviews renders the convictions unsafe. (3) The summing up is said by Vincent to have given insufficient warning against the danger of treating those interviews as evidence in the case of the other defendants. (4) Smith contends that he was wrongly prevented from adducing evidence of Attridge’s participation in drug dealing. Lastly, Smith wishes to advance the additional ground (5) that the summing up was unfairly unbalanced, and he complains (6) of a comment made by the Judge during his evidence. 2. The victim, King, was an established criminal. No doubt he might have had a number of reasons for dispute with a number of people. One area of likely dispute arose from a drugs prosecution in which he had been accused with a man called Sharma in 2002. That prosecution had been abandoned against King and Sharma had been heard to suggest that that was because King was an informer. By October 2003 Sharma was living in France, no longer at risk from prosecution on those drugs charges but arguably very much still in dispute with King. Vincent was an associate of Sharma and acted in his interests whilst he was away. He, Attridge and Elfes had visited Sharma in France at the beginning of September. Smith and Vincent were close friends and associates. Both Vincent and Smith volunteered that they were career criminals; they said, however, that they were not involved in the killing of King and that this was the kind of case in which their closeness to the elements of the underworld which might have been responsible for the killing did not betoken their complicity in it. Rather, both asserted that Attridge had attempted to exculpate himself with the police by blaming them. Further, Smith asserted positively that where he was shown to be close to the killing, that was because he had been used unwittingly by Attridge, who must have been directly concerned in it. Attridge, for his part, had told the police that he had been used by Vincent, who was a principal in the killing. 3. The killing was carried out by two men in a stolen white van, using an AK47 semi-automatic pistol. 26 shots were fired in a matter of a few seconds as the van was driven past King when he was leaving a gymnasium in Hoddesdon. The van had been left overnight a short distance away in a side street. The gunmen abandoned it back where they had collected it, and transferred to a stolen Mercedes motor car. They set the van on fire as they left it. They drove towards Enfield in the Mercedes and abandoned that car a few miles on, setting fire to it also. Whatever vehicle they went on to as the third phase of the getaway was never traced. They made good their escape. A bungled attempt was made to get rid of the gun the following day many miles away on Breydon Water outside Great Yarmouth, but the holdall in which it was contained, wrapped in bedding and some towels, floated, was noticed by some passing dog-walkers, and was recovered. 4. There was compelling scientific evidence: (a) Some plastic gloves found discarded near the van gave a DNA match for Smith (such that the probability of it being anyone else was 1 in 1 billion) and carried his fingerprints. (b) The magazine of the gun gave a DNA match with Smith (with the same probability). (c) A towel in which the gun was wrapped gave a DNA match with Vincent (with the same probability). (d) Gold particles in the debris of the van matched similar ones on the towels in the holdall, including the one mentioned at (c). (e) Fibres from the holdall matched a rug of unusual jute composition found at a home sometimes occupied by Vincent and his girlfriend Tiffany Lang. 5. Telephone cell site analysis put Smith, who lived in Elstree, in the area of Stevenage, where King lived, and in Hoddesdon, where King habitually went, on the morning before the murder. Similar analysis put Smith and also Vincent, who lived in Haslemere, in Hoddesdon on the afternoon of that day, when at some point the van was left in the side street and reconnaissance might be expected. The van had been caught on a petrol station CCTV camera that afternoon, and Smith was identifiably with it, wearing a hat with distinctive markings which matched the description of one worn by one of the killers next morning. 6. Vincent and Smith both admitted in evidence that they had placed the van in its side street on the day before the murder. Smith explained his being in Stevenage by saying that he had been asked by Attridge to follow an unidentified man, who turned out to be King, with a view to his being kidnapped in pursuit of a drugs debt; then, he said, Attridge had asked him to put a van in the side street. But, he said, he had had no idea that there would be any question of murder. Both he and Vincent said that he (Smith) had asked Vincent to help put the van in place. Vincent had driven to Enfield from Surrey and done so, moving the van a few miles. 7. The Mercedes had been registered on a traffic camera in Northolt in the late afternoon or evening of that same day before the murder. Cell site analysis placed Attridge in the area an hour later. After insisting throughout several long interviews that he knew nothing about it, he eventually admitted to the police that he had collected the car from Western Avenue; he said in interview that he had done so at Vincent’s request and had handed it on to Vincent at the latter’s mother’s home in Stanmore. He did not, however, give evidence at the trial. 8. There had been a previous failed plan to kill King on 22 September by a man called Spencer who admitted it. Vincent, who volunteered that he was in the business of security for criminal associates and enforcement of criminal debts, had returned to the UK from abroad on 30 September. Two days after his return, on the day before the successful killing, he made a telephone call to a friend called Nelson in prison. Both knew that the call would routinely be recorded. He became excited and protested in colourful language that he was ‘on something’ there and then, that other people (unnamed) had insufficient courage and that he was having to do everything himself. On Vincent’s own evidence, that call was made whilst setting about collecting and moving the van which was used next day in the murder. 9. A mobile telephone traceable to Vincent (number 027) was used between 2307 and 0013 on the night of 2 nd October from an address in Pinner where he sometimes stayed with his girlfriend Tiffany, although she was elsewhere and several of the calls were to her; there were more of the same between 0600 and 0630 next morning. That suggested that Vincent stayed the night close to Hoddesdon for the following morning. 10. Within only a minute or two of the murder, calls were made by one of Vincent’s mobile telephones (number 027) from Hoddesdon. One call was to an associate called Double and another to a number in France. A little later in the day the French number called another mobile telephone (087) which was brand new and unused before that day. Vincent admittedly used 087 that afternoon. 087 had not called France; since it was new, the inference was that the number must have been provided to the French caller before he rang England, the call made by 027 provided just such an opportunity. 11. Beginning that evening Vincent, together with his girlfriend, stayed at two hotels near to Heathrow for a number of days, under the name either of Attridge or of Elfes. Smith went to Brightlingsea in Essex, where he had a caravan, on the day of the murder. He travelled up to Felixstowe, a couple of hours’ drive from Breydon Water, on the day on which the gun was jettisoned. He returned and stayed with Vincent in the second hotel for two nights on Monday and Tuesday 6 th and 7 th October. 12. There was also a great deal of telephone traffic between the various defendants and their associates, which was capable of giving significant circumstantial support to the allegation that Vincent and Smith had carried out the murder, and had hidden afterwards with the help of Elfes and Attridge. 13. Vincent was able to point to the evidence of an eye witness that the gunman used his left hand, whilst he was right handed. Vincent and Smith could point to the unchallenged evidence of a resident in the side street to the effect that the van was not there at 3.15 on the afternoon of the previous day, which was after the time when, at least according to what they said, they put it there, whilst after that time the telephone evidence suggested that both were elsewhere; if the resident was correct as to time that opened up the possibility of someone else being concerned with the van also, as it was likely they had been on days prior to Thursday 2 nd . The applicants could also point to the evidence of King’s companion, a man called Crocker, who gave evidence for Vincent to the effect that the men in the van did not include either Smith or Vincent. That latter evidence, however, was very much weakened if not destroyed by the fact that at the time Crocker had firmly told the police that he had not seen the features of anyone in the van, nor indeed had he even seen what kind of vehicle it was. Crocker had also written a letter to Nelson calling for a truce between the underworld factions which were in dispute; he denied however the suggestion that his exoneration of Vincent and Smith was part of the ensuing cessation of hostilities. 14. Vincent advanced a complex alibi. When arrested in August 2004, 10 months after the murder, he had elected to answer no questions and had said nothing about his alibi; it was revealed only about a week before the trial a year later at the end of June 2005. 15. Vincent’s case was that on the day before the murder he had been telephoned by Smith and asked to help him to pick up a van. He drove from Surrey to Elstree with a friend called Clark, who just happened to be in his company. As chance would have it, they were on their way to Pinner anyway. They went across North London to Enfield, collected the van, and followed Smith as he drove it to Hoddesdon and left it in the street. It had been a gesture of help to a friend. He did not concern himself with the purpose of the van, although he realised it was something crooked. When Smith left the van he wanted something to wipe any fingerprints from it. Although they were travelling in a courtesy car borrowed for the day by Clark, it so happened that in the boot were some towels and bedding of Vincent’s which he had taken the opportunity to collect from the Pinner flat. Those were used. The towel must have been left behind and used by whoever the killers were to wrap up the gun; that was said to explain his DNA on the towel. Smith suggested that it also explained, by secondary transfer, the DNA matching his on the gun’s magazine. 16. Although 027 was his telephone, Vincent said that it had not been him who had used it in Hoddesdon at the time of the murder. He had lent it to Clark, whom he had asked on the evening of 2 nd October to collect some papers from an employee called Double who lived a few miles from Hoddesdon; it had not occurred to him to call when in the area that afternoon. He had also let Clark stay the night at the Pinner flat, so that it was Clark, not Vincent, who used number 027 there and made all the calls to Vincent’s girlfriend. Clark had then gone off on the 3 rd on his errand to collect papers, but because Vincent had not given more than the vaguest instructions how to find Double’s home, he had got lost and found himself in Hoddesdon; that was how 027 came to be used in the area of, and at the time of, the murder. 17. Vincent, supported by Smith, gave evidence that the new telephone 087 had not been acquired by him. It had been given to Smith by a drug customer who owed him money. But in the early part of the evening of 2 nd October, Smith said that he had visited some public houses with Clark. Whilst at one of them, the two men had snorted cocaine in the front seat of Clark’s courtesy car and he (Smith) had used the outside of the telephone carton to lay down the line of drug. For reasons which were never explained, he had taken the telephone out of its box in order to do this. That was how he must have left the phone in the car. Accordingly it was Clark, not Vincent, who the following day, the day of the murder, had not only Vincent’s 027 phone, but also the new 087 one, which he had found in the car. Vincent gave evidence that he got 087 from Clark, but not until two hours or so after the killing, and only with a view to returning it to Smith. Having it, however, Vincent used it. That was the explanation for how Vincent came to use 087 later in the day, but had not had it at the time of the murder. He denied the suggestion that 087, which was used only on the day of the murder, was a previously unused telephone unconnected with him, specifically acquired by him for use in that way. 18. Vincent gave evidence that he had spent the night of 2 nd /3 rd October miles from Hoddesdon at his home in Haslemere with his wife. He was supported in that by his wife, by a friend called Wilson who said they had been out for a drink together, by a man who said that he had called early on the morning of the 3 rd to return a golf club, by a young man who said that he had seen him at a local garage that morning at a time inconsistent with being in Hoddesdon for the murder, and by Clark, who gave the explanation for the presence in Hoddesdon of the two telephones provably used by Vincent in those two days. Vincent could also point to two telephone calls made just before the murder to the Pinner flat, from the landline of his Haslemere home, which he was able to contend looked as if made by him. If enough of that evidence was truthful and accurate, it provided Vincent with an alibi. The jury had to determine whether it might be true or not. There were, however, many features of it which did not add up. Among other things, Clark failed to remember some very memorable things which Vincent asserted had occurred, Mrs Vincent had previously told the police that she had no idea where her husband was on the night in question, and Clark was wholly unable to explain why he (not Vincent) should have had several long telephone calls with Vincent’s girlfriend that night and early next morning from the Pinner flat. A note found much later suggested planning of the alibi. There was ample material on which the jury could reject the alibi, and it must have done so. 19. Vincent’s account of the hotel stays was that he was spending covert romantic time with his girlfriend near to Heathrow, and that that was the reason for the use of others’ names. 20. Smith’s account was that although he had been willing to help Attridge in keeping surveillance on the person who turned out to be King, he had no idea there would be murder involved. He had been in West London with an Uncle on the night of 2 nd /3 rd and next morning went home to Elstree to sleep off a heavy night. He only learned of the murder later that day; he thought it wise to leave immediately for Brightlingsea, having unwittingly involved himself, but that did not mean that he had carried out the murder. This alibi, like Vincent’s, was disclosed only a fortnight or so before the trial. Smith was supported in his alibi by his Uncle, who had to admit giving false evidence in his own defence on another occasion, and whom the jury must also have disbelieved. Severance 21. Both Vincent and Smith contend that the Judge was wrong to refuse applications for separate trials made at the beginning of the case. Their contention is that Attridge’s interviews contained assertions against Vincent, and to a lesser extent against Smith, which the jury would be unable to disregard. Attridge had said, after a good deal of patient questioning, (1) that he had fetched and delivered to Vincent at the latter’s request the second-phase getaway car, the Mercedes, borrowing Vincent’s Aston Martin to drive home afterwards, (2) that over the few days after the murder he had met Vincent and Smith for lunch at a third hotel and at the second hotel where he stayed and Vincent had spoken of the bullets passing through the body of King, (3) that Vincent had, on that occasion, been wearing a bullet-proof vest for protection, and (4) that after an earlier police interview in the series he had been visited by associates of Vincent, and questioned forcefully about what he had told the police. At the request of counsel for Attridge, the long interviews were not simply placed in the hands of the jury, but the recordings of them were played in open court over a period of about four days. 22. Mr Pownall QC for Vincent and Mr Benson QC for Smith realistically recognise that the ordinary rule is that persons jointly indicted should be tried together. They contend, however, that this was the exceptional case in which the Judge was wrong so to direct. We do not agree. The decision whether to direct separate trials or not is one for the discretion of the trial Judge. This court will interfere only if satisfied that the Judge has erred in principle, or reached a decision which was not open to him. We do not agree that this was not properly described as a cut-throat defence. It may be that as between Vincent and Attridge it was not a case where each said that the other was responsible for the crime. But when the Judge looked at the defence statement of Smith at the outset of the trial he could see that Smith was contending that his surveillance of King, and his movement of the van, both of which he admitted, were said by him to have been done at the request of Attridge and to be attributable not to a plan to kill King but to some kind of drugs dispute which so far as he was concerned went no further than kidnap. The Judge could see that Smith said that he and Vincent had moved the van together. It was at least likely that Vincent would say the same, as in due course he did. In other words, Smith defended himself by blaming Attridge for what were otherwise deeply incriminating actions, and Vincent in due course associated himself with the principal of those actions. Attridge, for his part, said in police interview and in his defence statement, that his apparently incriminating action in providing the Mercedes second-phase getaway car, was something that he had done at the request of Vincent and without knowing that it was anything to do with a murder plot. Thus, the defences of Smith (associated with Vincent) on the one hand, and of Attridge on the other, were close to mirror images of each other. It does not matter that the total court time used might not greatly have been increased by separate trials (though we doubt that proposition), nor that if Vincent and Smith had been tried separately and first their convictions could have been proved in a subsequent trial of Attridge, nor that subsequent trial of the latter might have been unnecessary if the two principal defendants were acquitted. If ever there was a case which called for the truth to be investigated with all three defendants in the same trial, this was one. Without it, either Vincent and Smith on the one hand, or Attridge on the other, would have been free to cast the blame for what they did onto the absent defendant(s) without the jury hearing the other side of the story. Any evidence that each gave needed to be tested by the others, but also, and only marginally less importantly, so did the case advanced by each through cross examination and argument. We do not say merely that the decision not to sever was within the Judge’s discretion; we are quite satisfied that none of us would have contemplated severance and that the Judge would have been wrong to do so. If it were to turn out that Attridge did not give evidence, then the jury would be trusted to obey the direction that his interviews were irrelevant to the case of anyone but himself. That is the situation in hundreds of trials up and down the country daily, and this one was no different. Discharge of the jury 23. When it turned out that Attridge did not give evidence the application for severance was renewed. In reality this was an application for the discharge of the jury with a view to two retrials. Subject to the question of the treatment of Attridge’s interviews, which we shall deal with in a moment, we are quite satisfied that the Judge was quite right to reject that application. The application depended on the proposition that the jury could not be relied upon to honour the direction which they would have to be given to put Attridge’s interviews on one side except when considering his own case. But juries have habitually to obey this direction in cases where one defendant does not give evidence although he has advanced in interview a version of events which if true would implicate co-defendants. This was, certainly, a case in which there was added to the words of the interviews the extended playing of them to the jury together with Attridge’s real or simulated distress and his oft-expressed fear of Vincent. But this also is by no means unique. It happens often in cases where one defendant says that he saw another commit the crime. It happens equally in cases where one defendant asserts that he acted under duress from another. In both examples, and in many others, juries not infrequently have to cope with the assertion by the defendant who does not give evidence that his absence from the witness box is because he is in fear of another defendant. Experience shows that juries are able to understand and apply the simple rule that what defendant A says out of court, but does not support with evidence, is to be taken into account, but only in his own case, because he is otherwise taking advantage of the absence of the other to make allegations which he has chosen not to have tested in cross-examination. In most such cases, and in this, the jury has, by the time it comes to deliberate on verdicts, had the experience of watching witnesses give evidence and being tested by cross-examination. Its members are able to see for themselves that what might at first sight look plausible, is often exposed as false. Their own experience will tell them also the elementary homely truth that those accused of crime may try falsely to blame someone else. If juries are not to be trusted to obey this direction, then our system of jury trial is fundamentally flawed. Happily that is not so. 24. For the same reasons, we reject also the proposition that Attridge’s assertions in interview were such that once they were before the jury, the conviction of Vincent and Smith was a near certainty. If their conviction was anything approaching that, it was because of the strength of admissible other evidence against them, because of what they had to admit they had done, and because of the improbability of the convoluted explanations advanced for the unchallengeable evidence. Use of Attridge’s interviews 25. Where there are interviews of one Defendant which, if true, implicate another, the law that those interviews are not evidence against that other must be observed throughout the trial and not simply by asserting it to the jury. It is accordingly wrong for counsel for the Crown to treat what is said in interview as if it were evidence; this may undermine the direction which the jury is given, and may lead to the jurors becoming unable to apply the legal rule of which they are told; thus it may render the conviction unsafe. That does not mean that Counsel may not ask questions of Defendant A which are suggested by, or arise out of, the interview of Defendant B. That will frequently be necessary and proper. It is perfectly proper to see what A will say which might implicate B. B may yet give evidence and it may thus be necessary to explore the extent to which A’s account differs from that of B and the state of relations between A and B. There may be other admissible evidence which A should be asked to explain, which may closely be related to things which B said about the same topic in his interview. And topics for legitimate enquiry of A may in some cases be suggested by something which is in the interviews of B, when they would not otherwise be suggested. Those are but examples of reasons why questioning of A which is in some way related to B’s interviews may legitimately arise. The question in each case is whether B’s interviews have been treated as if they were evidence against A in such a way as, in effect, to lead the jury to ignore the rule that they are not admissible against him. For such clear law, see among other cases, R v Windass (1989) 89 Cr App Rep 258, R v Gray & Evans (20 February 1998, unreported, 97/4003&4004/X3) and R v Clarke and Hewins (15 February 1999, unreported, 97/4882-3/W3) together with the cases there referred to. In the present case it is submitted that Counsel for the Crown unwittingly crossed the line into implying that Attridge’s interviews had the status of evidence against Vincent. It is not suggested that he did so deliberately; rather, that he was nevertheless in error. 26. In opening the case to the jury, Counsel for the Crown advanced the argument, when dealing with Attridge, that Vincent would not have given Attridge a few days after the murder a graphic account of how he had committed it unless Attridge were a party to the killing. Mr Pownall QC submits that that sought to convey that what Attridge had said was evidence against Vincent. We disagree. Counsel had very clearly told the jury that Attridge’s interviews were only evidence in his case. But they were evidence against him, and it was the Crown’s case against Attridge that the conversation spoken of by him demonstrated that he was a party to the killing, for otherwise it would be too great a risk for Vincent to say it. The proposition advanced was an argument as against Attridge; it was clear that that was how it was put, and whether it was sound or not was for the jury. Similarly aimed at Attridge was a part of the cross-examination of Vincent on this same topic and the same point made against Attridge in the Crown’s closing speech. So too was another part of cross-examination of Vincent in which Counsel for the Crown suggested to him that Attridge was a close and trusted associate and not simply (as Attridge’s case was) a supplier of a getaway car without knowing why it was needed. The Crown was entitled to develop, as against Attridge, the evidence which Vincent would have to give as to the closeness of their association, including the meetings in the days after the murder and the supply of accommodation at the second hotel in Attridge’s name. 27. Counsel for the Crown also cross-examined Vincent on the topic of bullet-proof vests. One such had been found at the home of Tiffany Lang, and Vincent could be heard telling Nelson, in prison, about an occasion when he might have been embarrassed by one being visible on the back seat of his car. Vincent had given evidence in chief about such vests. He had not only advanced his explanation that they were tools of his trade in the enforcement of criminal debts and doorkeeping, but had also gone out of his way to assert that Attridge had known of the finding at Tiffany’s home, and that in this respect as in others he had made up in his interviews an entirely false story about Vincent, tailored to known facts. 28. When Counsel for the Crown cross-examined on this topic he did so in the context of the suggestion (which was plainly part of the Crown case independently of anything Attridge had said) that Vincent was lying low in the days after the murder, not only because of possible police interest but also, and perhaps more, because of the risk of underworld reprisals. We do not doubt that the questions were informed by knowledge of what Attridge had said in interview, and might yet say in evidence. We have considered carefully whether they amounted to an invitation to the jury to treat the interviews as the equivalent of evidence, but on inspection we do not think that they did. Counsel did not refer to the interviews, or to Attridge’s assertion, nor did he make any direct suggestion to Vincent that he had worn a vest when in Attridge’s company. Later, Counsel specifically asked questions directed to whether Attridge would, at the time of interview, have known of the recovery of the vest from Miss Lang; this, however, was directly prompted by Vincent’s allegation in chief that he did know. That upon further exploration the point proved, so far as we can see, not to have been the Crown’s strongest, does not mean that it was wrong to put it. Moreover, as we have said, Attridge might yet give evidence; it may well have been obvious to any seasoned criminal practitioner that he did not want to do so and was conducting the trial so as to set himself up to avoid it, but the same practitioner would know that a trial can easily take a turn which causes such a defendant to step nevertheless into the witness box. 29. In the course of cross-examination, Counsel asked Vincent this: “Well, I was going to ask you what had happened between you to cause Mr Attridge to tell such terrible lies about you. And that is the position, you have told us.” We think that it would have been better if that question had not been framed in that way. Counsel was quite entitled to cross-examine with some force upon the relationship between Attridge and Vincent - that would become particularly relevant if the former did give evidence in accordance with his interviews – but the questions would have been better framed without the reference to the interviews and to the proposition that they were either true or false. But this question followed several long passages in Vincent’s evidence in chief in which he had directly addressed what Attridge said in interview and had rebutted it point by point. Moreover, the last point he had made in chief was to give evidence that Attridge had made up a false story about him, and he had suggested that that was probably because (a) Attridge owed him £42,000 and (b) Attridge’s brother had had an affair with Tiffany, with the result that Attridge wanted to keep Vincent in prison and unable to recover the money or take revenge for the affair. In the end, the question which we have set out received a robust answer from Vincent, who also took repeated opportunity in the course of his evidence to denounce (with reasons) what he said was play-acting by Attridge when in interview he had asserted fear of Vincent. If anyone emphasised Attridge’s interviews in Vincent’s case, it was Vincent. In the context of an extremely strong case against Vincent, we are quite satisfied that the manner in which this question was framed does not render his conviction unsafe. 30. Questions to Vincent about the visit of Elfes and others to Attridge after he had been seen by the police were properly founded on CCTV evidence which showed it happening. Vincent admitted that he had asked them to go, and advanced reasons for doing so. 31. Mr Pownall submits that questions of Vincent in cross-examination as to his assertion that his Aston Martin was unavailable in a garage on 2-3 October could only be understood by the jury as predicated on the basis that Attridge was truthful in saying that the car had been available, and used, on 2 nd . The questions did not refer back to this part of Attridge’s interviews and arose in any event because the Crown was suggesting that Vincent’s admitted use, on 3 October, of an anonymous small car was in deliberate preference to his more conspicuous Aston Martin. We see no danger that these questions amounted to treating the interviews as if evidence against Vincent. 32. The same applies to Mr Pownall’s submission that the cross examination of one of the alibi witnesses (Wilson) could only be predicated on the basis that Attridge’s interviews put Vincent elsewhere on the evening of 2 October. The Crown case was that the alibi was fabricated; it was entitled, if not bound, to put that case to the witnesses. Moreover, the telephone calls to Tiffany from Pinner appeared to put Vincent well away from Haslemere at the time spoken of by Wilson. That in the end the Crown advanced the alternative theory that Wilson might innocently be mistaking the date does not mean that when his evidence was challenged as false the jury was being asked to rely on Attridge’s interviews as if they were evidence. 33. In his closing speech to the jury, Counsel for the Crown: (a) suggested to the jury that although Attridge had lied and lied for days on end in his interviews, the police had eventually got the truth, namely that he had supplied the Mercedes; and (b) suggested that the cell-site evidence put Attridge in the vicinity of the home of Vincent’s mother at the time Attridge had said he delivered the Mercedes to Vincent there, thus tending to confirm what Attridge had said; this submission concluded with the words “you will have to make what you will of that.” 34. Taken out of context it could be the case that these arguments amounted to treating the assertions of Attridge that the Mercedes had been supplied to Vincent as evidence against him that it had. But on inspection this is clearly not so. Counsel resumed his speech after a break overnight. He expressly moved on from the case against Vincent and Smith to the case against Attridge. The passages complained of are legitimate submissions in relation to Attridge. The observation that the jury could make of the evidence what it might is a conventional piece of padding. If it had not been preceded just half a minute or so before by a reminder that the interviews were evidence to be considered only in the case of Attridge, it might have carried a risk that the jury might treat them impermissibly; but it was, and we see no danger that the jury would be led by the remark to misunderstand the oft-stated rule. 35. The few questions of Vincent which we have been asked to consider came in the course of evidence which runs to over 500 pages of transcript, approximately half of which was cross-examination. The close textual analysis to which Counsel’s questions and speeches have been perfectly properly subjected do not suggest to us that this jury was being invited to treat the interviews of Attridge as if they were evidence against Vincent. They are wholly unlike the cross-examination castigated in Clarke and Hewins , in which the witness had the interviews of a co-defendant (as well as letters of which she was neither the writer nor the recipient) put into her hands for day after day so that the assertion could be made time without number that the assertions in those inadmissible documents were true, and the defendant’s evidence to the contrary was false. We respectfully entirely agree with the decision in that case, to which we were helpfully referred after we had announced our decision in this case, but there is no new proposition of principle in it, and its facts are in no sense analogous to the present case. Evidence of Attridge’s drug dealing 36. At the commencement of his case, Mr Benson QC for Smith applied to the judge for leave to adduce evidence that Attridge was a drug dealer. The case had been conducted on the basis that Smith was himself a regular dealer in drugs. The potential relevance of Attridge’s drug dealing was that Smith asserted in his defence statement, and was to say in evidence, that the surveillance which he had conducted upon King, and the provision of the van, had been at the request of Attridge and that he had believed it to be in pursuit of some drug dispute. Mr Benson was on notice from counsel for Attridge that both the requests and the allegation of drug dealing were disputed. He contended, as we understand it, that he was entitled to adduce evidence of Attridge dealing in drugs in order to support Smith’s assertion. In the language of the bad character provisions of the Criminal Justice Act 2003 , evidence of Attridge’s drug dealing had substantial probative value upon an issue which was going to be joined between these two co-Defendants, and was thus admissible under s 101(1)(e). Although the principal issue in Smith’s case was whether his handling of the van was done in the anticipation of murder or of mere kidnap, to which any drug dealing by Attridge was a side-issue, we can see that if there was evidence available to the effect that Attridge was, in the late Summer or Autumn of 2003, dealing in drugs, that might be capable of supporting that part of Smith’s story and was thus admissible under s 101(1)(e). 37. What Mr Benson actually applied to the Judge to admit was (1) that Smith thought, on 2 October, when he kept watch on King and supplied the van, that it was in pursuit of a drug dispute, (2) that 14 months later in December 2004, when Attridge was arrested, that was in pursuance of information given to the police that he was dealing in large quantities of cocaine, and they suspected him of doing so, and (3) whatever information it was that the police possessed in December 2004 to support that suspicion. 38. It is clear that (1) was not evidence of bad character at all; it was merely evidence of what Smith thought at the time he did something alleged to be part of the commission of the offence. It fell within section 98 of the Act. Smith was entitled to say it. The Judge so ruled and Smith did say it. 39. As to (2) and (3), any belief of the police about whether Attridge was or was not dealing in drugs, whether that belief was held at the material time in October 2003 or 14 months later, was irrelevant, unless it was soundly based in fact. Mere belief was thus not admissible. The only evidence which would be admissible was evidence that Attridge actually was dealing in drugs at a time when his dealing might generate a dispute with King in October 2003. It was, we think, inherently rather unlikely that any information given to the police in December 2004 would go to provide such evidence; the Judge was rightly alert to the lapse of time between October 2003 and December 2004. But in any event, that question was investigated. Mr Benson tells us, and of course we accept, that although he made no application to the Judge under section 8 Criminal Procedure and Investigations Act 1996 he made informal application to the Crown for disclosure of any material in its possession which might show that Attridge was dealing in drugs in such a way as to have the potential for generating a drug-related dispute with King in October 2003. Mr Bright QC tells us for the Crown, and we similarly unhesitatingly accept, that if the Crown had had any such material, whether derived from information given in December 2004 or otherwise, he would have regarded it as his duty to disclose it, but there was none. He also tells us, and we accept, that (a) the Crown had a specialist disclosure junior, so that what material existed was a topic on which he was fully instructed and (b) unusually, but out of excess of caution, he checked his decision as to disclosure by ex parte application to the trial Judge. There was no such material. 40. In the event, the Judge permitted Smith to adduce the evidence that in December 2004 the police had information that Attridge was dealing in cocaine. He did so on the basis that this evidence was within section 98. He declined to allow Smith to adduce evidence in category (3), saying that it did not go to an issue in the case. Whilst we are in those two respects unable to endorse the reasons given by the Judge, the fact remains that Smith was thereby enabled to adduce something which was not admissible, and there was nothing more admissible to be given to him by way of disclosure for him to adduce. Accordingly, there is no basis for saying that his conviction is rendered unsafe by anything relating to the question of any drug dealing by Attridge. The summing up 41. Mr Pownall makes two complaints about the summing up. First, he says that the Judge omitted to warn the jury that care must be taken not to take as evidence anything which the police officers said by way of questioning during Attridge’s interviews. It is correct that the Judge did not mention this topic. Some very limited editing of these questions had been made at the request of counsel then appearing for Vincent, but broadly he had concluded, we are told, that any application to remove from them expressions of the interviewers’ opinion as to what Vincent had done would not be successful, and it is certain that no application for any modification of the questions was made to the Judge. Insofar as they contained expressions of the opinion of the officers, those questions could only be admissible if relevant to explain Attridge’s answers. Whilst we are not to be taken as agreeing that all of them fall into that category, we accept that some at least probably did. But however many were necessarily in evidence, we do not think that the Judge fell into error as alleged. When dealing with the case of Attridge and thus with his interviews, he said this to the jury: “Of course, what the police put to Mr Attridge is not evidence of what happened. The evidence in the case of Mr Attridge is what he responds to those questions. It is the answers that he gives……” When dealing, earlier in his summing up, with the status of Attridge’s interviews in relation to other defendants, the judge gave the jury a careful warning in conventional terms that they were not evidence except in the case of Attridge (see paragraph 41, below). He explained why. He subsequently repeated it several times, and whenever dealing with them. It might perhaps have been possible to frame a direction which added that still less were the opinions of the officers evidence against other defendants, but any such warning would carry the risk that the jury might misunderstand it, and believe that Attridge’s answers did, despite the direction given, have some status different to the questions of the officers. The Judge was quite entitled to take the simple uncomplicated course which he did. Moreover, what the judge said in his summing up about the status of the interviews will inevitably have come after the same proposition will have been repeated many times during the trial. The transcript clearly shows that that process began with the Crown’s opening. 42. Secondly, Mr Pownall points to a part of the direction which the Judge gave when he came to deal with the case against Attridge. The interviews were mixed admissions and exculpations. The Judge gave the conventional direction that the jury was entitled, if it thought right, to approach those two features of the interviews by considering whether admissions were likely to be true (for else why would they be made ?), whilst the same could not be said of exculpations and they had not been tested by examination. Says Mr Pownall, here was the jury at one moment being told that part of what Attridge said was likely to be true, and at another being told that what he said was to be disregarded in the case of Vincent. He accepts that the Judge was entitled, if not bound, to give the direction which he did, but that, he says, highlights the impossibility for the jury of disregarding in the case of Vincent material which it had been invited to consider likely to be true, and thus demonstrates that the trial was unfair to Vincent. This long summing up was carefully structured, and its component parts were identified for the jury. The direction in question came firmly during the general directions of law but in a part which dealt with the case of Attridge. It followed not long after this clear direction as to the status of the interviews: “There is a particularly important feature of this need to consider each defendant separately upon which I must direct you at the outset, and I will remind you of this in the course of the summing up. It is important that you understand that the evidence of what Mr Attridge said in interview to the police, though evidence in the trial in his case, is not evidence in the cases of any of the other defendants. The reason for this is not a matter of legal technicality, but is a matter of fundamental fairness. None of the other defendants were present when he was being interviewed. They had no opportunity to respond or to contradict what he was saying. He has not given evidence in this trial and so he has not been exposed to cross-examination for any of the other defendants on his account [as he would] had he been in the position of adopting his interview as part of his evidence. It is therefore a matter of fundamental fairness that you should not have regard to what Attridge said in his interview when you are considering the cases of the other three. It is evidence you should consider only when you are dealing with his case – the case of Mr Attridge.” We see no reason why the jury should misunderstand the simple rule that these interviews were to be disregarded except when thinking about Attridge’s case. It would understand clearly that it was only when it was applying itself to his case that the jury was entitled to consider that admissions were likely to be true. Nor, although of course to do so requires careful thought, do we think that this jury would be unable to apply that rule, any more than countless juries are required to do, and succeed in doing. 43. Mr Benson complains that during the summing up the Judge referred to two possible explanations for events for which there was no real evidence. Smith had been not all that far from Breydon Water on the day after the murder, and had visited his associate Ricky Double; it would have been possible, observed the Judge, for the latter, or anyone else asked by Smith to do so, to have taken the gun for disposal. That was a permissible observation. The Judge also observed that Double lived not far from Hoddesdon and if there was doubt whether the van had been moved after being left in the side street on the afternoon of 2 October, he might have been one of the people who could have done so. That, we think, was an unwise complication to introduce, and was little more than speculation. It seems to us that the Judge would have been better to have reminded the jury that the evidence of unchallenged witnesses may or may not be accurate, and that cases usually have some loose ends. 44. Secondly, Mr Benson complains that when near the end of the summing up the Judge summarised the headline points of each side, he coupled with those made by the defence the counterpoint evidence which might be taken to weaken it, whereas he made no such qualification of the headline points made by the Crown. It is nearly always possible to dissect a summing up and to suggest ways in which it could be improved. We are inclined to agree that if the Judge were to re-read the passage, he might prefer to go further out of his way to avoid any hint of the criticism made by Mr Benson. But this was overall an extremely carefully crafted summing up. The counterpoint to the Crown’s headlines was, in one sense, those of the Defendant, which the Judge itemised. If there was not perfect balance of strength between the arguments thus summarised on either side, this was because the balance of evidence was, as it seems to us, powerfully in favour of the Crown. A fair summing up is one which reflects the balance of the evidence. This was in the end a very strong case against both these applicants. We are satisfied that the few criticisms of the summing up which can be made are not such as to cause us to entertain any doubt about the safety of the convictions. 45. Mr Benson complains, lastly, that at one point during the cross-examination of Smith by counsel for the Crown, the Judge remarked: “I am sure that we’re all being run rings round by Mr Smith who is obviously extremely tee’d up, and if I have got it wrong I’m sorry and no doubt Mr Bright will apologise too.” Mr Benson complains that the remark was such as might be taken as a disparaging judicial view about the evidence of Smith, and particularly about his credibility. The remark came during questions about Smith’s disposal of his mobile telephone. Mr Benson had intervened to suggest that Mr Bright had misunderstood what Smith’s evidence on the subject had been. The Judge had attempted to state it accurately, but in doing so had inadvertently got the lake into which Smith said he had thrown the telephone in the wrong place. Smith, who had been engaged in a certain amount of sparring with his cross-examiner, not entirely without encouragement, was quick to assert himself and put everybody right. That produced the Judge’s remark. It was immediately followed by counsel for the Crown telling the witness that he accepted that Mr Benson would not have interrupted him unless he was making a bad point. All this happened in the course of a very long stay in the witness box for Smith. It was, quite clearly, just one of those brief asides or exchanges from which everyone moves on in the cut and thrust of a trial. Even read in isolation, we are quite unable to interpret this as any kind of comment on the veracity of Smith’s evidence. It may have been the kind of mild defusing of tension which Judges occasionally have to undertake; more likely it was simply a way of acknowledging with a modicum of humour that the witness had bested the Judge on his understanding of the evidence. At all events, in the context of the case as a whole, and of the time for which Smith was giving evidence, there is no possibility that it can affect the safety of the verdict. In those circumstances, having in effect treated the applications for leave as the hearing of the substantive appeals, we are satisfied that the convictions are safe. We refuse the applications for leave to appeal against conviction. Sentence 46. In passing life sentences, the Judge fixed the specified period (sometimes known as the minimum term) at 30 years for Vincent and 25 for Smith. 47. This was a transitional case for the purposes of the Criminal Justice Act 2003 ; the offence had been committed on 3 October 2003, before the provisions of the new Act were brought into force on 18 December 2003. Accordingly, paragraph 10(a) of Schedule 22 applied and the court could not specify any period greater than the Home Secretary would have been likely to fix had he done so under the practice followed by him before December 2002. For an offence committed in October 2003, the best guide to the Home Secretary’s practice is to be found in the Practice Statement handed down by Lord Woolf CJ on 31 May 2002, to be found at [2002] 2 Cr App Rep 287: for this proposition, see R v Sullivan [2004] EWCA Crim 1762 ; [2005] 1 Cr App Rep 1 at paragraph 42. All this was fully appreciated at the time of sentence. 48. Judges sentencing in transitional cases therefore have to put their minds back to the recommendations which they would have made, following the Practice Statement of May 2002, had the conviction occurred before the enactment of the 2003 Act , with its very significantly increased specified periods as set out in Schedule 21. Under Lord Woolf’s Practice Statement, the starting points were 12 years for normal cases of murder and 15/16 for especially serious cases, either because of the culpability of the killer or because of the vulnerability of the victim. There can be no doubt that this was in the latter category, nor that the right specified period would have been significantly above what was a mere starting point. 49. This was a very serious killing. It was a ruthless professional contract execution, carefully planned as an act of retribution amongst professional criminals, and it was carried out with a fearsome weapon which created enormous risk to any member of the public who might have been on the street at the time. It was not, however, a serial killing, a killing of a police officer or of a child, and it was not a sadistic killing. In our experience this kind of killing would have carried at the relevant time a recommendation of something between 20 and 25 years, but would not have reached 30. That is confirmed by Lord Woolf’s Practice Statement, which referred (at paragraph IV 49.32) to a term of 30 years as, in effect, a maximum unless a whole life term were specified, and did so in the context of a reference to multiple killings by way of example. It seems to us that in arriving at 30 years it is likely that the Judge was influenced, however much he sought not to be, by the new and significantly increased starting points created by the new Act. 50. In Vincent’s case we grant leave to appeal against sentence and allow the appeal. We quash the specified period of 30 years less time in custody and substitute the period of 25 years less 386 days. 51. In Smith’s case, we think it clear that we should make a clear distinction as the Judge did; he had presided over the trial and was in much the best position to assess the respective responsibilities of the defendants. We grant leave to appeal against sentence and allow the appeal. We quash the specified period of 25 years less time in custody and substitute the period of 22 years less 386 days.

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2017-11-17

crown_court

No: 201704419 A2 Neutral Citation Number: [2017] EWCA Crim 2496 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 17 November 2017 B e f o r e : LORD JUSTICE SIMON MR JUSTICE GOSS HER HONOUR JUDGE WALDEN-SMITH (Sitting as a Judge of the CACD) REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 - - - - - - - - - - - - - - - - - - R E G I N A v LISA SUDALE - - - - - - - - - - - - - - - - - - Mr P Jarvis appeared on behalf of

No: 201704419 A2 Neutral Citation Number: [2017] EWCA Crim 2496 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 17 November 2017 B e f o r e : LORD JUSTICE SIMON MR JUSTICE GOSS HER HONOUR JUDGE WALDEN-SMITH (Sitting as a Judge of the CACD) REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 - - - - - - - - - - - - - - - - - - R E G I N A v LISA SUDALE - - - - - - - - - - - - - - - - - - Mr P Jarvis appeared on behalf of the Attorney General Ms H Kubik appeared on behalf of the Offender - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Fleet Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - J U D G M E N T This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person. LORD JUSTICE SIMON: 1. The Attorney General seeks leave to refer a sentence passed on the offender, now aged 35, at the Crown Court at Warwick on 7 September 2017 under section 36 of the Criminal Justice Act 1988 as being unduly lenient. We grant leave. 2. On 6 September, the offender had been convicted before Ms Recorder Carey and a jury on a single count of doing an act tending and intended to pervert the course of public justice contrary to common law. It was on the following day that she was sentenced to a term of 24 months' imprisonment suspended for 24 months, with an unpaid work requirement of 150 hours and a 20-day rehabilitation requirement. She was also ordered to make a contribution of £600 towards the prosecution costs and pay a victim surcharge of £140. 3. At around 2.30 pm on 4 September 2014, a man named Junior Laing and another unknown man entered a jewellery shop in Atherstone in North Warwickshire with a shotgun. They threatened the staff and made off with a considerable amount of expensive jewellery. The getaway driver was a woman named Charlotte Caines. A witness noted down the registration number of the car and as a result both Laing and Caines were identified as suspects. He was arrested on 15 September 2014. She was arrested two days later. 4. The offender was the girlfriend of Laing. At the time of his arrest she lived in Swadlincote in Derbyshire. That address was searched on the day of Laing's arrest. In his police interview he advanced an alibi for the day of the robbery. He said he been with the offender in her home at the time the robbery took place. The police tried to obtain a witness statement from the offender but without success. 5. Laing was charged with his involvement in the robbery. In his defence statement, which was served on 2 March 2015, he repeated the account he had provided in his earlier police interview and indicated that he would be calling the offender as a witness at his trial. 6. The police then renewed their efforts to take a witness statement from her. On 5 April 2015, Detective Constable Russell met the offender at her home and took a 6-page witness statement from her. In that statement she maintained that Laing could not have committed the robbery on 4 September 2014 because had been with her at her home that afternoon. 7. Laing and Caines stood trial at Birmingham Crown Court in late April and early May 2015. He maintained his alibi defence at trial. He did not give evidence but called a witness to say that he had been at the offender's home on the afternoon of the robbery. The offender attended court to give evidence on behalf of Laing but she was not called. The jury convicted both Laing and Caines. 8. On 10 May 2015, the police arrested the offender on suspicion of perverting the course of justice by providing Laing with a false alibi. In her police interview she maintained that his conviction was a miscarriage of justice. She repeated the account provided by her in her witness statement of April 2015. 9. She was charged with the offence later particularised in the indictment and at her trial maintained that at the time of making her witness statement she genuinely believed that what she had told the police was true, although on reflection she may have been mistaken about the whereabouts of Laing on 4 September 2014. She denied lying to the police and concocting a false alibi for Laing. That was an account that was plainly rejected by the jury. 10. The offender is aged 35, and had two convictions: one for an offence of shoplifting committed in 1994 when she was 12 years old; and another for an offence of common assault committed in July 1997 when she was 15. 11. There were a number of reports available to the Recorder. The first report was a psychiatric report dated 30 November 2016 prepared by a Dr Ruth Scally, a consultant psychiatrist. Dr Scally concluded that the offender was fit to plead and stand trial. She did not present as someone with any symptoms of an active mental disorder. Dr Scally reviewed the offender's medical notes and these confirmed that she had been to see her GP in December 2013 and October 2014 and that her antidepressant medication had been increased in December 2014. Her medical notes supported the conclusion that she was suffering from a mild to moderate depressive episode in 2014. In Dr Scally's opinion depressive episodes can be associated with cognitive impairment and so it is possible that in April 2015 the offender's recall of an offence in September 2014 was affected. 12. The second report was a psychological report dated 6 February 2017 prepared by Dr Tim Hull, a consultant clinical psychologist. The report was commissioned by the offender's solicitor so Dr Hull could comment on her mental state at the time she made her witness statement. 13. In her interview with Dr Hull the offender reiterated her belief in the truthfulness of the account she provided to the police in her witness statement. She reported having an imperfect memory for the last two years or so and added that sometimes she did not know what was real and what was not. She said that sometimes she remembers things that have never happened. She added that she had been suffering with depression for the last two years and at times she felt as if she were losing her mind. 14. Having carried out an assessment, Dr Hull concluded that she was able to concentrate to a satisfactory degree and her intellectual functioning was within the average range. Her memory was relatively poor and she had a marked tendency to yield to leading questions and a very marked tendency to change her answers in response to negative feedback. If the offender was affected by depression that might have increased her sense of confusion when she spoke to the police. However, as Dr Hull recognised, these concerns were speculative and he was unable to comment on whether the offender lied to the police when she made her witness statement or whether she was genuinely mistaken as to the events of 4 September 2014. 15. The third report was a pre-sentence report dated 6 September 2017. In discussions with the author of the report the offender continued to maintain her innocence. She lived with her daughter in rented accommodation. Her daughter was aged 18 and on the verge of starting a university course. The offender worked in a bar. She had no debts and no savings. She was in the process of setting up a business concerned with spiritual healing. She was no longer in a relationship with Laing. Her new partner was supportive of her. She presented as a low risk of reoffending and the author assessed her as vulnerable and suggested that she could be at risk of self-harm if she were given a custodial sentence. The author recommended the imposition of a suspended term of imprisonment with a number of community requirements. 16. In mitigation, defence counsel submitted that in September 2014 the offender had been emotionally vulnerable and committed to a destructive relationship with Laing. When he was arrested on suspicion of robbery she desperately wanted the allegations to be untrue. She allowed her wishful thinking to influence the account she gave to the police in April 2015. Defence counsel pointed to the offender's lack of recent convictions, to her vulnerability and then to delay in the matter coming before the court. 17. In her sentencing remarks, the Recorder observed that the offender had provided a "wholly false statement" to the police to provide her then partner with an alibi. That was a very serious matter. The Recorder focused on three matters that were of particular importance to sentencing for this offence. The first was the seriousness of the underlying offence. In her view, "armed robbery was near of top end of the scale". The second was the persistence of the lie. In this case, while the offender did not give evidence, she did attend court ready, willing and able to repeat her lies. The third was the effect of these lies, which in this case was muted because in the end the jury convicted Laing. The Recorder rejected the suggestion from the offender that her lying account was in any way the product of a disordered mind. In the circumstances, the Recorder decided that there had to be a period of imprisonment but she felt able to suspend it. 18. Mr Jarvis, who appears for the Attorney General, submitted that the sentence was unduly lenient. He does not criticise the sentence of 24 months as such but he argues that it should not have been suspended. He relied on repeated statements of principle in this court as to the seriousness of the offence with its tendency to subvert the course of criminal justice and the need to impose an immediate custodial sentence absent exceptional circumstances: see, for example, Attorney General's Reference No 35 of 2009 (Binstead) [2010] 1 Cr App R (S) 61 at paragraph 410. 19. For the offender, Ms Kubik submitted that the sentence may have been lenient but it was not unduly so, and that in the particular circumstances the Recorder was entitled to suspend the sentence. She had the advantage of presiding over the trial and was therefore in a strong position to make an assessment of the offender for the purposes of sentence. She submitted that the Recorder was entitled to the view that the offender's presentation and evidence was truly unusual and was entitled to conclude that she was vulnerable and would have difficulty coping with prison. The offence was complete at the time the statement was taken and the false alibi was given on 5 April 2015. The police never accepted that it was true and although she attended with a view to giving evidence, she did not in fact give evidence. The statement did not ultimately assist Laing. 20. Ms Kubik pointed to the significant delays. Although there had been a trial, the offender had not been charged until August 2016 and there was the further mitigation of her apparent vulnerability and background depression. At her request the transcript of the evidence that she gave before the jury has been made available to this Court. This plainly shows that she is vulnerable. 21. Ms Kubik drew attention to the Sentencing Council's definitive guidelines on the imposition of community and custodial sentences and submitted that there were no factors in this case which indicated that it would not be appropriate to suspend the sentence and some of the factors which weighed in favour of doing so. First, there was a realistic prospect of rehabilitation represented by her compliance with the requirement of the sentence that was passed, as could be seen by a post-sentence report, which we have seen. This showed, and was supplemented by her oral submissions, that the offender had complied with the requirements of the sentence. Ms Kubik provided updated figures that she had completed 63 hours and 45 minutes of unpaid work and complied with the weekly RAR requirement. She drew to our attention a letter from the YMCA where she has done work, which speaks to her credit. She informed the court that the offender is engaged on an online accredited cognitive behavioural therapy course, which she believes will assist her. She has, in the words of Ms Kubik, done everything she could to comply with the sentence. Second, she points out that there was strong personal mitigation. Third, she submits that immediate custody would impact on others, in particular her daughter. 22. We have considered the submission of the Attorney General and the submissions on behalf of the offender. The range of sentences that are passed for this offence indicate the extent of the harm and the degree of culpability that may be present: see, for example, the various cases referred to in Archbold 28-25 to which the Recorder referred in her sentencing remarks. As this court said in R v Tunney [2007] 1 Cr App R (S) 91 (565) at [10], and as the Recorder recognised, the three matters to be borne in mind when considering the sentence in such cases are, first, the seriousness of the underlying offence to which the perverting of the course of justice relates; secondly, the degree of persistence in the conduct in question; and, thirdly, the effect of the offence on the course of justice. The degree to which the course of justice was in fact perverted. 23. The Recorder correctly identified that the underlying offence of robbery was serious and that the offender had been prepared to go to court to give evidence in support of the untruthful alibi. However, as the Recorder also noted the lies did not in the event affect the outcome of the trial: Laing was convicted. The Recorder recognised that the offender was quite vulnerable, that she had made changes in her life and had not been in trouble in the period of over 2 years since the trial of Laing. It was in the light of these matters as well as the time that had elapsed since the offence, the contents of the psychological and psychiatric reports and the pre-sentence report that she felt able to suspend the sentence. 24. The question then is whether the decision to suspend the sentence resulted in a sentence that was unduly lenient. 25. This court has frequently reiterated two material points in relation to sentencing for this offence. First, that perverting the course of justice is always a serious offence since the criminal justice system cannot properly operate if people act to subvert it. Secondly, and as a consequence, the offences will almost always require the imposition of a substantial period of imprisonment: see the judgment of Lord Taylor CJ in Attorney General's Reference No 44 of 1994 (Middleton) [1996] 1 Cr App R (S) 256 at [260]. This sentencing approach was reiterated in Attorney General's Reference No 35 of 2009 (Binstead) [2010] at [11], where the court added: " ... it is a longstanding principle that perverting the course of justice is so serious an offence that it is almost always necessary to impose an immediate custodial sentence unless there are exceptional circumstances ... That is because such actions as giving a false account of events to investigating authorities undermines the very system of criminal justice which is thereby impeded in its functioning." 26. The reference to exceptional circumstances should perhaps be understood to mean that it will be an unusual case where an immediate sentence of imprisonment will not be imposed. This explains why short terms of immediate imprisonment are passed in such cases where otherwise they might be suspended. 27. This approach has more recently been endorsed in R v Omayr & Rehman [2017] EWCA Crim 814 at [21]: "The authorities show that this type of offence requires a reflection of the gravity of the offending and the need for deterrence." 28. It follow that the approach of the court is to regard this offence as one where in the usual case the sentence will not be suspended. To use the language of the definitive guidelines on the imposition of community and custodial sentences: "Appropriate punishment can only be achieved by immediate custody." 29. Whether the case is an unusual one where the sentence can properly be suspended will depend on the facts of the case, the degree of culpability and harm and those factors also set out in these guidelines: (1) whether there is a realistic prospect of rehabilitation; (2) whether there is strong personal mitigation; (3) whether imprisonment would result in a significant harmful impact on others. 30. We are not persuaded the consideration of the factors assists the offender here. 31. This was a case in which she voluntarily chose to pervert the course of justice out of a misplaced sense of loyalty and the strongest indication of a realistic prospect of rehabilitation would have been a plea of guilty. There was, we would accept, personal mitigation available to her and evidence of some impact on her adult daughter but these were not such as to make this case an unusual one. 32. We note in this context Attorney General's Reference No 34 of 2015 [2015] EWCA Crim 1152 . In that case the offender was a single mother with charge of two young children and personal mitigation had led the Crown Court to suspend a 24 month sentence of imprisonment. This court held that the suspended sentence was unduly lenient, although it reduced the term of imprisonment. The underlying offence, we recognise, was more serious than here. But the observations of the court in that case at [26] are relevant: "We consider that the public interest in dealing with crime of this gravity, together with the need for deterrence, significantly outweighs the detriment to the children of this offender so that an immediate sentence should have been passed. We do not view the circumstances of this case as so exceptional as to justify the course taken by the judge. In so concluding we have taken into account the fact that an experienced judge who had conducted the trial passed sentence. We have no doubt that he gave this case his usual anxious consideration. However, on this occasion we consider that he got the balance wrong. The sentence passed was in the circumstances not merely lenient, but unduly so." 33. We would add that in the present case too the Recorder plainly gave the case the most serious consideration, as her sentencing remarks make clear. Although the delays were rightly a matter of concern, this too was not such as to justify the unusual course of suspending the sentence. In our view, there were not exceptional circumstances. 34. On the facts and the circumstances that we have set out we consider that an immediate term of imprisonment should have been imposed and that the sentence that was passed was not only lenient, but unduly so. We therefore quash the suspended sentence and pass a sentence of immediate imprisonment. However, in considering the length of such term, we take into account two particular matters which serve to reduce the length of the sentence. First, an element to reflect the fact that the offender has been sentenced twice (what is sometimes referred to as double jeopardy) since there are no guidelines for this offence: see Attorney General's Reference No 45 of 2014 (Afzal) [2014] EWCA Crim 1566 . Second, an element to reflect the fact that the offender has complied satisfactorily with the conditions of the suspended sentence since the date it was imposed. 35. In these circumstances, we quash the 24-month suspended sentence and substitute a sentence of 18 months' immediate imprisonment. That sentence will take effect from today.

2017_11_17-4111.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/2496/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/2496

473d446471cf5261270b83664247175afac54fed2192cb9afb2ab765e84691a5

[2011] EWCA Crim 1707

EWCA_Crim_1707

2011-06-21

crown_court

No. 2010/06782/D1 Neutral Citation Number: [2011] EWCA Crim 1707 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 21 June 2011 B e f o r e: LORD JUSTICE GROSS MR JUSTICE OWEN and MR JUSTICE MACDUFF - - - - - - - - - - - - - - - R E G I N A - v - ADAM JAMES LUMSDEN - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telephone No: 020 7

No. 2010/06782/D1 Neutral Citation Number: [2011] EWCA Crim 1707 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 21 June 2011 B e f o r e: LORD JUSTICE GROSS MR JUSTICE OWEN and MR JUSTICE MACDUFF - - - - - - - - - - - - - - - R E G I N A - v - ADAM JAMES LUMSDEN - - - - - - - - - - - - - - - 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 J Upton appeared on behalf of the Appellant Mr I Wicks appeared on behalf of the Crown - - - - - - - - - - - - - - - J U D G M E N T Tuesday 21 June 2011 LORD JUSTICE GROSS: 1. On 9 September 2010, in the Crown Court at Aylesbury, before His Honour Judge The Lord Parmoor, the appellant (now aged 42) pleaded guilty to one count of possessing a controlled drug of Class A (count 2, diamorphine). On 2 December 2010, in the same Crown Court, before Mr Recorder Kelly QC, the appellant was convicted on one count of possession of Class A drugs (diamorphine) with intent (count 1). He was sentenced to five years' imprisonment in respect of count 1 and no separate penalty was imposed in respect of count 2. The total sentence was thus one of five years' imprisonment. Various other orders were made which it is unnecessary to recount. 2. The appellant appeals against conviction by leave of the single judge. He also renews his application for leave to appeal against sentence after refusal by the single judge. 3. We deal first with the appeal against conviction. The facts may be shortly summarised. On 17 December 2009 the police found 58 wraps of heroin in a bag under the appellant's bed (count 1). A piece of foil was also found under the appellant's bed on which there were the burnt remains of some heroin (count 2). 4. The prosecution case was that the appellant was a drug dealer. The large quantity of drugs had been prepared in individual wraps ready to be sold. Text messages indicated that the appellant was involved in dealing. The Crown relied on text messages found on the appellant's telephone. One of the text messages referred to "1/8 of brandy". The number from which the message was sent was not stored in the appellant's telephone as a contact. Several messages related to the appellant trying to arrange a drug supply by others to his late brother. Incoming texts made reference to the availability of valium, "green stuff" or amphetamine. There was no evidence of the appellant having made any reply. 5. The Crown relied on traces of cocaine found on knives in the appellant's kitchen. 6. The defence case was that the appellant knew nothing of the bag. That he was innocent was demonstrated by the lack of any forensic evidence. Neither his fingerprints nor DNA were on the bag or the wraps. He had neither a significant amount of cash nor a dealer's paraphernalia. He had been a heavy user of heroin in the past, but that did not mean he was now a dealer. 7. The issue for the jury was whether the appellant knew about the bag. 8. The written Grounds of Appeal say this: ".... the making of [a] comment and its careful positioning, right at the end of the summing-up, unfairly invited the jury to speculate and renders their resulting conviction unsafe." 9. The comment to which reference is made appears at page 16G of the summing-up, where the Recorder said: "One of the things you might care to ask yourselves is: these were fairly valuable drugs, 58 wraps, why would a drugs dealer leave those under somebody else's sofa without that person knowing anything about it? You do not leave your common sense behind you when you go into the jury box; in fact you apply it." That comment was preceded by this observation at 16F: "So that was the totality of the evidence. You are entitled, as I told you, to draw inferences from it and use your common sense in relation to the evidence." 10. The appellant's case, most attractively argued in concise form by Mr Upton this morning, was that there were weaknesses in the Crown's case. The text messages were ambiguous; there was no forensic evidence linking the appellant with the bag containing the 58 wraps; and there was an absence of signs of high living or a dealer's paraphernalia. Put shortly, the Recorder's comment erred in that it invited the jury to speculate. That was not something that the Recorder should have done. In any event, the positioning of the comment was such as to render the conviction unsafe. Mr Upton said that there had been no evidence as to how the drugs came to be left where they were found, and that it was a drugs dealer who might have done so. 11. The prosecution case on the appeal before us was likewise persuasively addressed by Mr Wicks to whom we are grateful. We know that he has only come into this matter at short notice; his submissions were none the worse for that. The underlying point made by the prosecution in writing was this. They emphasised the situation when the police arrived. The appellant was lying on the sofa-bed in the bedroom of the maisonette. He was taken into the bathroom to be searched and the police then found the drugs under the sofa-bed. The foil which contained the heroin, in respect of which the appellant pleaded guilty to possession, was approximately five inches away from the blue package which contained the 58 wraps. The prosecution underlined that at the time of the search the appellant was the only occupant of the property: a one-bedroomed maisonette comprising a living room, kitchen, bathroom and bedroom. 12. In developing the Crown's position this morning, Mr Wicks posed the question: was the Recorder's observation within or without permissible bounds? He invited us to address that question both with regard to the comment in its own terms and with regard to the summing-up as a whole. So far as concerns the comment in its own terms, the language had not been extravagant, even if the timing had been less than ideal. The summing-up as a whole had shown a very fair approach; it amply canvassed both sides of the argument. The Crown's case had been a good circumstantial case and nothing flowing from the comment rendered the conviction unsafe. 13. Mr Upton, in reply, observed that the very fairness of the summing-up (apart from the comment) highlighted the jarring nature of the comment. 14. Although the difference between proper inference and impermissible speculation can on occasions prove a fine distinction, we are satisfied that in terms of inference (as opposed to speculation) this comment was on the right side of the line. It was a fact in evidence before the jury that the bag containing the 58 wraps was found under the appellant's bed. No speculation was involved in that. What inference, if any, was to be drawn from the presence of the package underneath the appellant's bed and in close proximity to the drugs of which he admitted possession? That question did not arise in a vacuum. The appellant lived alone and in small premises. For the appellant's account to be possibly correct, someone would have had to have abandoned this valuable package there without his knowledge. Given the nature of the wraps and their packaging, it was an obvious inference that the only person to have left it there would have been somebody dealing or involved in the dealing of drugs. The Recorder was entitled to flag that matter for the jury's consideration, provided that he left the answer to them, which he was careful to do. The point is a short one. On the straightforward ground that the substance of the comment was not improper, the appeal against conviction, as it seems to us, must fail. 15. For completeness though, we add this: (1) The timing or positioning of the comment was unfortunate. All in all, the summing-up would have lost nothing if the comment had not been made; and, if it was to be made, it would undoubtedly have been better made somewhere else. (2) Even if, however, either the comment or its positioning was improper, on all the facts and circumstances of this case we have no doubt whatever as to the safety of the conviction. For our part, we are struck (apart from all other considerations) by the proximity of this package to the foil of which the appellant was well aware. Despite some gaps in the prosecution case, it remained, as Mr Wicks summarised it, a good circumstantial case. The appeal against conviction is accordingly dismissed. 16. We turn to the renewed application for leave to appeal against sentence. Again with attractive brevity Mr Upton submitted that the sentence was manifestly excessive. He pointed to the absence of a pre-sentence report. The applicant is a man who has changed his habits. Having regard to personal mitigation, the applicant's life having improved for the better, the quantity of the drugs (12.7 grams) and the purity of the drugs (which remained unknown), the sentence was too long and there was room for reduction. 17. We agree with the observations of the single judge in refusing the application. The sentence passed was plainly in the right bracket. A pre-sentence report would have added nothing. The Recorder had heard the trial. No credit was available for a plea of guilty. Personal mitigation, such as it was, did not begin to suffice to require the matter to be placed in some lower bracket. 18. In the circumstances, and noting the applicant's numerous previous convictions, including convictions in respect of the supply of drugs, we have no hesitation in refusing the renewed application for leave to appeal against sentence.

2011_06_21-2765.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/1707/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/1707

f5088c15cfba314b7b3c83954c3a9b7ceac956b593780143d356b0712c3ef0c5

[2014] EWCA Crim 465

EWCA_Crim_465

2014-03-04

crown_court

Neutral Citation Number: [2014] EWCA Crim 465 Case No: 201400557/A2-201400740/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 4th March 2014 B e f o r e : LORD JUSTICE ELIAS MR JUSTICE SWEENEY MR JUSTICE GREEN - - - - - - - - - - - - - - - - - - - - - B e t w e e n R E G I N A v IOANA FLORE IONUT BURA - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communic

Neutral Citation Number: [2014] EWCA Crim 465 Case No: 201400557/A2-201400740/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 4th March 2014 B e f o r e : LORD JUSTICE ELIAS MR JUSTICE SWEENEY MR JUSTICE GREEN - - - - - - - - - - - - - - - - - - - - - B e t w e e n R E G I N A v IOANA FLORE IONUT BURA - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr C Wasunna appeared on behalf of the Appellant Flore Mr M Troman (Solicitor/Advocate) appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE GREEN: 2. There are before the court two appeals with leave of the single judge. The first appellant, Ioana Flore ("Flore"), pleaded guilty to one count of possession of articles for use in fraud contrary to section 6(1) of the Fraud Act 2006 . He was sentenced to 12 months' detention. The maximum sentence for this offence is 5 years' imprisonment. Flore has one previous conviction for fraud and related offences. In June 2011 he was convicted of possessing controlled articles for use in fraud and was sentenced to a youth rehabilitation order, a curfew requirement for 12 weeks with electronic tagging and a requirement that he attend an attendance centre for 36 hours. Ionut Bura ("Bura") also pleaded guilty to the same offences and was sentenced to 10 months' detention. 3. The facts may by summarised quite briefly. The appellants are Romanian nationals. On 22nd November 2013 they were spotted by police in a Vauxhall Astra motor vehicle in Hanover Street, London. Flore was the driver of the car which was said to belong to his uncle. Bura was the front seat passenger. Police stopped the vehicle upon the basis that they had grounds to suspect that it had previously been used in the course of crime. The appellants were searched, as was the vehicle. On Flore the police found a Sainsbury's gift card which the police suspected may have had credit card details copied to the magnetic strip. The card was taken to a nearby ATM and the officers' suspicions were confirmed. That exercise demonstrated that the magnetic strip had been compromised and some third party's bank details had been added to it. On Bura's iphone, in the notes section, were entries containing sequences of four numbers. The police suspected that these were stolen PIN numbers. In the footwell of the vehicle police found a metal scraper and two bottles of glue. In the glove compartment they found double sided sticky tape. A second metal scraper was found in the pocket on the back of the front passenger seat. Both men were arrested. 4. At the police station a more detailed search was conducted. In the pocket of the body warmer of Bura was found an electronic slotted card reading device. It is clear, as the judge observed, that both men were equipped to engage in card fraud. They did not however make any admissions at the police station. Bura said in interview that he had only recently found the item in the body warmer and had no knowledge of how it got there and he had no knowledge of the items in the car in which he was a passenger. Flore gave a "no comment" interview but did submit a prepared statement denying the offence. Both men were remanded in custody. Both men pleaded guilty at the PCMH held on 6th December 2013. 5. Pre-sentence reports were prepared for both appellants. In relation to Bura, the PSR stated that he had significantly minimised his involvement and his knowledge of criminal activity. He had admitted that he and Flore were on their way to London to "make money". When he was asked to elaborate on how they would do this, he was unable to give any explanation. When asked about the equipment found on him and in the car, he said that the kit was simply in the vehicle and he did not know anything about it. The author of the report said that he was "extremely sceptical" about Bura's explanation and that in his view Bura assumed the court would be naive and would believe his story. The reporter stated also that Bura expressed limited understanding of the impact on victims of such frauds. He was assessed as presenting a medium risk of reoffending. He expressed no remorse. 6. In relation to Flore, the author of the PSR stated that Flore had given an explanation of events that was inconsistent with the evidence provided by the CPS. He stated he had found the Sainsbury's gift card. He denied any knowledge of the items found in the vehicle, stating they belonged to his uncle. He did accept that at the time he was in need of money and was experiencing financial pressures. The author concluded that Flore refused to take responsibility for the offence. Given that the prior history the author states: "This offence is in line with an emerging pattern of pre-planned acquisitive offending." The report also drew this conclusion: "By the nature of the property recovered in the search, there is evidence to propose that the articles would be used, or were intended to be used, as part of a larger and more sophisticated fraudulent operation, suggesting that Mr Flore partakes in regular activities which encourage offending. The nature of the offence is dishonest and involves taking calculated risks." 7. We turn to the sentencing judge's observations. The judge's remarks were succinct. He recalled the basic facts and then recorded the following matters relevant to sentence in relation to each of the appellants. As regards Flore the judge in particular took account of the following. That he had in his possession a Sainsbury's gift card that had already been cloned with the details of someone's bank details showing that "this was not just a one-off exercise". That he had shown no remorse. That he sought to minimise his role in the offence whereas in the judge's view, they both knew perfectly well what they were engaged in. That this was an endemic type of fraud in London. There was therefore a need for a deterrent sentence. 8. In relation to Bura the judge noted that incriminating articles had been found in his possession in particular in his body warmer. He pointed out that he falsely denied the offences in interview. He also took into account the lack of remorse, his attempts to minimise his involvement, his knowledge of what he was engaged in and the need to impose a deterrent sentence for this endemic sort of crime. The judge stated that Bura had no previous convictions. According to the printout of antecedents Bura in fact had a previous conviction for going equipped for theft and destroying property. According to this he was sentenced at Brent Magistrates' Court in December 2010 to a community order with a single requirement of curfew for 18 months. However it appears that during submissions Bura's counsel put the prosecution to proof of the previous convictions upon the basis of an alleged error in the printout relating to the appellant's date of birth. In these circumstances the prosecution did not seek to prove that Bura had previous convictions. 9. The judge concluded, broadly, in relation to both men that this was a sophisticated offence. He stated that in his view the two men had jointly concocted their stories to be given to the police. Both men were however given credit for their pleas at the PCMH and were given credit for time on remand. It was on this basis that the judge sentenced Flore to 12 months and Bura to 10 months' imprisonment. 10. We turn to the grounds of appeal and the relevant sentencing guidelines. It is said in relation to both appellants that the sentence was manifestly excessive by reference to the relevant sentencing guidelines. It is submitted that these offences fell within the lower category of seriousness in the guidelines and that the judge exceeded the range by a considerable margin without justification and in a manner which was inconsistent with previous case law. The Definitive Guideline for Fraud and Related Statutory Offences identifies two categories for this particular offence. The higher category is in relation to use of articles intended for use in an extensive and skilfully planned afraid. The starting point is 36 weeks' custody with a range of 6 weeks to 2 years. The lower category is in relation to articles intended for use in a less extensive and less skilfully planned fraud. The guidelines indicate that the starting point is a medium community order and the range is from a low community order to 26 weeks custody. This is of course for offenders with no previous record. The maximum sentence for the section 6 offence is 5 years. 11. It was submitted by the prosecution that these offences fell within the lower category. In his sentencing remarks the judge indicated that he was aware of the guidelines but he did not state into which category he placed the offences. Given the full credit for early pleas identified by the judge, the starting point for the sentences for each applicant was 18 months for Flore and 15 months for Bura. This placed the appellants above the lower category of offending and squarely within the higher category. According to the guidelines aggravating factors include planning, operating in groups or gangs, professional offending and an attempt to conceal or dispose of evidence. 12. Did the judge impose sentences which were manifestly excessive? We have had regard to the authorities cited to us. They show that every case must be decided upon its own facts. They are all examples of sentences of a lower level of severity imposed in circumstances said by the appellants to be roughly comparable to the present cases. They do show that where a judge seeks to impose a deterrent sentence, upon the basis that a particular type of offence is endemic in the locality, that this should be done on an evidence based approach and not anecdotally. 13. In relation to Flore, this appellant had a previous conviction for a similar offence. This is a significant point and demonstrated the previous punishment imposed upon him for similar offences in the past had not worked. Furthermore he was in the company of an accomplice. The judge concluded that the paraphernalia was sophisticated and he had failed to admit his guilt at the police station instead giving false and misleading information. The PSR revealed a lack of understanding and a lack of remorse. On this basis the offence would sit above the lower category of offending in the guidelines. There was no obligation on the judge to accept that this fell within the lower category simply because the prosecution so contented, if this was not in fact his view. 14. In relation to Bura, the judge seemingly took the view that there was little to choose between him and Flore and that they should be treated as the same save in relation to previous convictions. The one difference therefore that did lead to Bura receiving a lower sentence was that the judge treating him, perhaps fortuitously, as of good character. Bura accordingly received a sentence, prior to discount for early plea, which was 3 months less than that of Flore. 15. We take the view that the judge was essentially correct in treating both appellants in the same way. We agree the appellants were in this crime together and share a similar level of culpability. Thus far we can identify no error in the judge's analysis. Though we would observe that where as here it appears that the judge disagreed with the analysis of the Sentencing Guidelines expressed by both prosecution and the defence, it is desirable that the judge should say so and explain why in his sentencing remarks. 16. Where, with respect, we depart from the judge is in his conclusion that he was entitled to impose a deterrent sentence, because of what he perceived to be the endemic nature of the offences whether committed by Eastern European immigrants or indeed by anybody else. The principle is based upon the fact that the law proceeds by way of evidence not anecdote or what might be ill informed general sentiment. The decided case law shows that where a court wishes to impose a sentence which incorporates an element of deterrence, because of its supposed endemic nature in a particular locality, then this is perfectly permissible, provided that it is done upon the basis of proper evidence. In R v Oosthuizen [2005] EWCA Crim 1978 , at paragraph 16 the Court of Appeal stated as follows: "In the absence of such statistics or other evidence identifying particular prevalence in a particular area, a judge, however experienced in a particular area, should not make the assumption that prevalence of that offence is more marked in the area with which he is familiar than it is nationally." The Court later, in same paragraph, stated: "It follows that the learned judge was not entitled to impose, for reasons of local deterrence, a sentence higher than would otherwise be appropriate for that particular kind of offence by reference to national guidance." 17. In this case the judge imposed the sentences, which included an element of deterrence, upon the basis that, in his view, this was an endemic crime throughout London and that a message needed to be sent that it would be visited upon with severer sentences than would otherwise be the case. However, he had before him no evidence to support his conclusion and as such he was not entitled to add to the sentence to reflect his view that there was a need for deterrence. We therefore consider that in this respect the judge erred and that it is appropriate to reset the sentences subtracting the deterrent element. 18. We therefore allow the appeals and in relation to Flore we substitute a sentence of 12 months with one of 10 months. In relation to Bura we substitute a sentence of 10 months with one of 8 months.

2014_03_04-3367.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/465/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/465

567f26bfe1c23470b64620d27afc090b1915a651463c76487d743587c3cca618

[2022] EWCA Crim 1818

EWCA_Crim_1818

2022-12-02

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2022] EWCA CRIM 1818 No. 202101318 B3 Royal Courts of Justice Friday, 2 December 2022 Before: LADY JUSTICE SIMLER MR JUSTICE SWEETING HIS HONOUR JUDGE KATZ KC REX V PUVINDER SINGH BRIAH __________ Computer-aided Transcript prepared from the Stenographic Notes of Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] _________ MS C BRACKEN appeared on behalf of the Appellant. MR J K BENSON KC appeared on behalf of the Respondent. ________ JUDGMENT LADY JUSTICE SIMLER: Introduction 1 On 22 March 2016, following a trial in the Crown Court at Blackfriars before HHJ Richardson and a jury, the appellant, Puvinder Singh Briah, was convicted of conspiracy to launder money and on 23 March 2016 he was convicted of conspiracy to pervert the course of public justice. 2 There were four co-accused. Tajinder Padda was convicted in the same trial of conspiracy to launder money. The three others who were alleged to be part of the operation were Surinder Pal, subsequently sentenced to four years' imprisonment for money laundering; Akshai Pidakala, who was also convicted of money laundering and sentenced to seven years' imprisonment; and Parmjit Lail, who was acquitted. 3 On 23 March 2016 the appellant was sentenced to 12 years' imprisonment for the offence of money laundering and to two consecutive terms of 12 months' and four months' imprisonment respectively, for conspiracy to pervert the course of public justice and failing to surrender, which he had earlier admitted. The total sentence was 13 years and four months' imprisonment and he was also disqualified under section 2 Company Directors Disqualification Act 1986 for a period of 12 years. 4 Padda was sentenced in the same terms for his role in the money laundering conspiracy. 5 Both the appellant and Padda lodged applications for leave to appeal against conviction and sentence. Those applications were refused by the single judge. Although they were initially renewed to the full court, the applications were abandoned before any hearing took place. 6 Contested confiscation proceedings took place against Padda and the appellant. On 6 April 2021 at the Central Criminal Court before HHJ Hillen, Padda was ordered to pay a confiscation order in the amount of £555,900.59 under section 6 Proceeds of Crime Act 2002 . His application for leave to appeal that order was refused by the single judge on the papers and by this court following a renewed oral hearing earlier this year. 7 The appellant was ordered by HHJ Hillen to pay a confiscation order of £696,067.04 under section 6 Proceeds of Crime Act 2002 , within four months or, in default, serve six years' imprisonment consecutively to the term imposed for the substantive offence. He too appealed. This court was persuaded to give leave to appeal against the confiscation order on two specific grounds. The first relates to four cheques payable to HMRC which he says should have been taken into account in calculating the available amount. The second is an asserted double counting error said to have been made by the judge. 8 Ms Bracken appeared for the appellant and Mr Benson KC for the prosecution. We are grateful to both counsel for the assistance with which we have been provided, and in particular, their careful, focussed submissions. The facts 9 The facts underlying the case are lengthy. For present purposes, it is sufficient to summarise them as follows. The appellant and Padda were involved in an organised crime group which engaged in large-scale excise fraud. The fraud generated large cash sums which were subsequently laundered. These two men were the prime-movers in the conspiracy and were the joint heads of the Gravesend-based organised crime group. Their activities involved the control and distribution of excise duty on suspended quantities of alcohol and cigarettes, which were then sold for profit without excise duty being paid. The profits were then laundered through a network of front companies which existed for that purpose alone. Cash proceeds from the sale of the smuggled alcohol and cigarettes were transported within the UK through a cash courier network and cash and carry stores which purchased the alcohol and cigarettes from the organised crime group. 10 A sense of the scale of the enterprise can be ascertained from the description of some extracts of the evidence. First, there were cash seizures made by the British Transport Police, on 11 January 2012 at Euston Station in an amount of £134,000 (odd); and on 2 June 2012 when £30,000 (odd) was seized at St Pancras. It was established that French couriers were paid to travel regularly from France to the UK in an attempt to legitimise the movements of large quantities of cash. 11 Secondly, handwritten notes were seized from the house of one of the associates which also serve to demonstrate the size of the profits. On the second page of the handwritten notes an entry dated 18 November 2010 read “left was £100,000”, followed by two columns showing “P(50)” and “T(50)”. The prosecution asserted that this showed that any amounts of cash left over were distributed equally between the appellant and Padda. 12 Thirdly, a memory stick was seized from Akshai Pidakala's person or premises. This was found to have contained a deleted spreadsheet that came to be known as exhibit HOM/105. Forensic investigators were able to recover the spreadsheet. It was an off-record ledger reflecting the value of the fraud between 25 January and 15 December 2010. It recorded cash sums coming into the organised crime group and the amounts distributed out to various individuals, including the appellant and Padda. The total sum recorded as coming in amounted to nearly £31 million. 13 The prosecution alleged that Padda used aliases, including Terry, Titch and T and that the appellant used the alias of Peter or P. 14 The trial judge concluded that the fraud continued beyond the scope of what was contained in the spreadsheet and the amount of cash collected was not less than £60 million, reflecting the fact that the offence in count 1 was particularised in the indictment as having been committed between 9 February 2010 and 18 July 2013. The £60 million figure was reached by extrapolating the £30 million per year turnover figure on HOM/105 to reach a figure for the entire period of the conspiracy of £100 million. The judge accepted, however, that the conspiracy declined in its later months and therefore arrived at the figure of £60 million by way of a total turnover figure. 15 The spreadsheet showed that Padda was the direct recipient of £109,000 (odd) and that Briah was the direct recipient of £180,650, although those figures were believed by the prosecution to represent only a small percentage of the payments received by these two men. 16 The confiscation proceedings were themselves lengthy. They were also complicated, as the judge observed, by various interim applications and by the pandemic. Although throughout 2016 and 2017 there were exchanges of witness statements and submissions, a full opening only took place in relation to the confiscation proceedings in July 2020, with cross-examination of those witnesses who were called to give evidence in December 2020 and written closing submissions served in 2021. 17 The prosecution contended for a benefit figure in respect of the criminal conduct of £60 million, placing reliance on the trial judge's findings. For Padda the prosecution contended for an available amount of just over £882,000. For the appellant, they contended for a figure of just over £844,000. For their part, both Padda and the appellant essentially argued that the available amount should be limited to the profit in the form of the duty evaded. Many detailed points were taken as to the valuations, profit margins, costs of the operation and overheads to be deducted, and so forth. It is unnecessary for us to summarise these arguments. 18 The appellant accepted that entries marked Peter or P on the spreadsheets may have indicated payments to him. He contended, however, that there was double counting of certain sums and that one recorded sum of £200,000 was owed to him but not in fact paid. 19 The prosecution also relied on withdrawals by cheque from the appellant's account. In his section 17 statement dated 30 January 2018, the appellant provided a schedule showing the destination of some cheque payments together with exhibited copies of certain cheque stubs. The prosecution responded to the statement contending that the exhibit was largely unreadable and did not constitute compelling evidence. In response, the appellant provided better copies of the cheque stubs. We shall return to this aspect of the evidence below. 20 Neither the appellant nor Padda gave evidence at the confiscation hearing. The impugned ruling 21 HHJ Hillen produced a careful, well-reasoned and comprehensive ruling on the confiscation issues. Given the scope of the appeal, which is directed at the findings made by the judge as to the available amount, it is unnecessary for us to summarise in any detail those aspects of the judge's ruling that dealt with the benefit figure. 22 In short, HHJ Hillen made clear that the benefit was to be assessed on the basis of gross amounts obtained and not net profit. The judge at trial found these two individuals to be the leaders in the conspiracy. Neither had given evidence and the evidence of the co-accused contradicted their assertions that they were not the prime-movers. There was nothing in the confiscation proceedings to displace the judgment of the trial judge. HHJ Hillen referred to the reliance placed by the judge on HOM/105, which covered most of 2010 and which was described as a “cash account for the collection and distribution of this money”. HHJ Hillen observed that the prosecution was unable to prove the amount of cash proceeds during the remaining part of the conspiracy as indicted. However, there was undoubted proof the conspiracy continued until at least the end date pleaded in the indictment and he depended on the findings of the trial judge who heard the evidence and properly directed himself as to findings of fact for the purpose of sentence. The trial judge regarded £60 million, less cash seized and forfeited, as a conservative estimate. A benefit figure in that sum was just and proportionate. Nothing from either man had served to dislodge the trial judge’s assessment. Ultimately, the judge identified the benefit figure in the case of each of the appellant and Padda as £59,827,230. 23 The available amount fell into three categories: identified assets; tainted gifts amounting to approximately £91,000 (made up of money, watches, etc); and hidden assets. The judge described ascertaining the value of the hidden assets as a “vexed question”. He observed correctly that if he was satisfied by the Crown that there was evidence of hidden assets, it was for each of Padda and the appellant to prove that he had not obtained the benefit of those assets. The judge recognised the clear evidence of a willingness to move money and hide it away. He considered that the appellant showed a willingness to dispose of his property. He concluded that there was a reasonable inference that both men had hidden assets, and therefore proceeded to make a fair and proportionate assessment of those assets. 24 In relation to the appellant (referred to as Briah in the ruling), he dealt with hidden assets at paragraphs 48 to 54 of his ruling as follows: “48. The Crown have conducted an analysis of Briah’s known bank accounts (set out in paragraphs 7.4 to 7.20 of Volume 1 Flap 2 Confiscation bundle) and produce a schedule of such payments (conservatively put at withdrawals over £500 (Appendix 19 to volume 1 Flap 2 Confiscation bundle). These payments are made between 11th August 2010 and 13th April 2016. None of the destinations of these amounts have been identified by Briah to my satisfaction on a balance of probabilities. I am therefore of the opinion that these constitute hidden assets amounting, once CPIH has been added to £212,150.74 49. From HOM 105 (see above) the Crown have extracted from the payments made to 'Peter' or 'P' between 1st February 2010 and 18th November 2010. (Appendix 2a to Volume 1 Flap 2 Confiscation bundle). The defendant Does not dispute that Peter or P 'may' indicate payments to him. It was clear to the trial judge in sentencing that this was a figure lower than reality. None of the destinations of these monies have been identified by the defendant sufficiently. He asserts for instance that payments were expenses and cites as an example that the payment of £17.000 on 1st February 2010 related to Belgian duty. He adduces no evidence for any of these assertions. It is incumbent upon him to do so. Consequently I am of the opinion that these constitute hidden assets amounting to £118,650.00. 50. Recovered from the memory stick found in a co-conspirators house there appear to be payments made again to 'P'. showing a total of £106,185 (in amounts more than £500) received over a 22-month period from 22nd January 2009 and 11th December 2010. (Appendix 20 to Volume 1 Flap 2 Confiscation bundle). The defendant contends that these represent 'living Expenses'. Of course, even criminals have to eat and the figure denoted as 'wages' on that spreadsheet ought in my judgement to be deducted from the total. It also seems to me that where there is designation of particular payments, e.g. to 'Party', that would indicate that those funds have been dissipated. However, where there are funds which cannot be accounted for either by particular designation, or for living expenses, those sums are, in my judgment hidden assets. Consequently, if the arithmetic is correct I deduct £52,955 from the figure suggested by the Crown as hidden assets on this schedule. Thus, the figure of £53,230 are hidden assets. (Note the £51000 on 28th March 2009 is not counted by The Crown- though the defendant answers it Saying it was lodge with Lail for safekeeping (see response of 20.1.18) 51. In Appendix 21 to Volume 1 Flap 2 Confiscation bundle is a document recovered from the same source as the previous document. It shows a payment made to the defendant and to Padda of £34,592. Since the learned trial judge found Padda and Briah to be the prime movers, it is reasonable to conclude that this figure would be equally divided between them. However, I accept the defendant’s interpretation of the document as set out in Volume 1 Flap 5 Confiscation bundle on page 8. He accepts profit of £7784.17. He suggests that this would appear on one of the spreadsheets, but does not identify where or which. In the absence of evidence showing where that money went. I am satisfied that it is a hidden asset. 52. In Appendix 22 to Volume 1 Flap 2 confiscation bundle is yet another document recovered from the same source as the previous documents. The Crown rely solely upon the figure of £200,000 as a hidden asset. The defendant asserts that the document shows that £200,000 is owed to him but was not paid. I do not accept that. It Is clear on the face of the document that there are sums of money owed, but the £200,000 is distinguished from those by the terminology used. The defendant needs to explain where this has gone, He does not do so. I am satisfied that this is a hidden asset. The defendant also contends that there is double counting of some sums. However, it is clear from the document that those figures are separate for the £200,000. 53. In Appendix 23 to Volume 1 Flap 2 Confiscation bundle is a document recovered from the same source as the previous documents. They show receipts on 18th December 2009 and 1st February 2010 Totalling £31,000. I accept that the £17.000 on 1st February is duplicated in Appendix 2 A above. Consequently, only £14000 is included in the hidden assets figure. There Is no evidence that this was dissipated by way of payment of duty as the defendant alleges. 54. Consequently, the hidden assets in respect of Purvinder Briah is £605,814.91.” The appeal 25 The appeal, as we have already indicated, is limited to two grounds. 26 The first ground contends that the judge failed to engage with certain evidence relating to the payments out by the appellant to HMRC, as reflected in the documents available and recovered from the memory stick. In particular, the appellant produced a copy of four cheque stubs said to show payments to HMRC as follows: (i) a payment dated 2 July 2011 in the sum of £19,212.69; (ii) a payment dated 20 August 2012 in the sum of £21,691.05; (iii) a payment 4 February 2014 in the sum of £528.95, and  (iv) a payment dated 1 July 2016 in the sum of £882.60. The total comes to £42,675.34. The appellant contends this sum should have been deducted but was not. 27 When the cheque stub evidence was produced, the cheque stubs were illegible, and the prosecution was not prepared to engage with that evidence in consequence. Subsequently however, Ms Bracken provided clearer copies of those documents and, as far as she was concerned, there was no further challenge to them. She submitted that the judge was in error therefore in failing to accept that those sums were properly to be deducted from the hidden assets in question. We do not criticise the judge for not placing reliance on the cheque stub evidence in the circumstances that applied at the time. The appellant did not give evidence to explain that the cheque stubs reflected sums paid to HMRC and there was no evidence at that stage to that effect. Steps could have been taken, but were not taken, to secure HMRC's agreement that those sums were received. 28 However, Ms Bracken makes the point that this was an HMRC led investigation so that HMRC were well placed to confirm the veracity of the four payments. Indeed, in August 2021, having explored these matters in correspondence with HMRC, HMRC conceded that £42,000 (odd) was received by HMRC in the form of four cheque payments as described. In light of that evidence, admitted as fresh evidence under section 23 of the 1968 Act, the Crown now accepts that £42,000 (odd) should have been deducted from the sum of £212,150.74 referred to by the judge at paragraph 48, producing a total sum of £169,475.40 in its place. We have been taken to the various documents and are satisfied that the concession is rightly made. We accordingly allow the first ground of appeal. 29 The second ground of appeal is based on an asserted arithmetical error. Ms Bracken submits that a “concession” was made by the financial investigator in the supplemental section 16 statement dated 21 September 2018, at paragraph 11.12, in the following terms: “The crown concede that there could feasibly be an element of double accounting in the figures at Appendix 2A to the s.16 prosecutor statement dated 18 August 2016. Having compared the figures in Appendix 2A and the figures at Appendices 20 and 22 to the same prosecutor statement, the crown have removed the total of £118,650 from Appendix 2A to avoid any possibility of double counting”. 30 Ms Bracken submitted that despite this concession, made explicitly, the amount identified was not removed from the final hidden asset figure arrived at by the judge. Indeed, she referred us to paragraph 49 of the judgment where the judge accepted that the appendix 2A figure was a lower figure than reality, but that none of the destinations of the monies had been sufficiently identified by the appellant, and accordingly concluded that the total amount of £180,650 did constitute hidden assets. Relying on the financial investigator's methodology, she submitted that this sum was included in the methodology he described and the ultimate figure arrived at by the judge was wrong in consequence. Although the judge expressed his concern about excluding mathematical double counting, in fact the error must have come about because he took the figure from the old section 16 statement, and then made specific deductions, but without any reference to paragraph 11.12 of the financial investigator's statement. 31 She also submitted that four specific entries on appendix 2A could be shown to reflect double counting, because those figures also appear on appendix 22. The entries are: (i) £2,000 on 26 July 2010 with a reference P, reflecting a payment out to P; (ii) £1,000 on the 17 July 2010, a payment out to Peter; (iii) £5,000 on 11 August 2010, a payment out to Peter and (iv) £4,000 on 18 August 2010, a payment out to P. This demonstrates that there was in fact double counting but is simply illustrative. Despite his care, the judge did not avoid double counting altogether. Accordingly, the total figure of £180,000 (odd) in appendix 2A should have been further reduced to reflect these failures. 32 Despite the care and clarity with which those submissions were advanced, we do not accept them. We prefer the submissions made by Mr Benson KC on this ground. We start, as he did, with the context. These were POCA proceedings in which the appellant did not give evidence or call any witness on his behalf. Before the judge, his counsel attributed certain meanings to documents, but there was no evidence to support the interpretations so advanced. Indeed, the court was not assisted by him at all as to the value of his assets or as to what assets were available to him, despite the fact that the true extent of his realisable assets was peculiarly within his own knowledge. Moreover, he had the opportunity to explain any or all of the documents found on the memory stick and produced at trial, by giving evidence about them. Instead, he denied all knowledge of them and chose not to give evidence at all. 33 In fact the documents found reflect only a partial picture as Mr Benson emphasised. This is a point that the judge himself made. HOM/105 related to a different period during the three and a half year conspiracy period. Appendix 20 showed large amounts of cash going to the appellant in the year before the alleged conspiracy began. Moreover, as Mr Benson also emphasised, it was never accepted by the Crown that the amounts paid out to the appellant were or should be treated as limited to the entries identified as paid to Peter or P. 34 So far as the appendix 2A payments are concerned, it is true that the financial investigator conceded that there could feasibly be an element of double counting on the figures in appendix 2A, but the judge made no reference to any such concession. We have been taken very carefully by Mr Benson through each of the documents that supported the elements that made up the hidden asset figure in the judge's ruling. That exercise has demonstrated to us that there was in fact no double counting. 35 Taking them in turn, we deal first with the asset figure of £212,150.74 (albeit now reduced by reference to ground 1). This comprised payments set out at appendix 19 and was dealt with by the judge at paragraph 48 of his judgment. It is clear to us that this sum did not include any sum taken from appendix 2A or HOM/105. 36 The next figure (dealt with at paragraph 49 of the ruling) is the HOM/105 appendix 2A figure itself. Appendix 2A is a schedule of payments. The Crown continues not to accept that these were the only payments, but they are payments totalling £118,640. We shall return to the four amounts to which Ms Bracken referred shortly. 37 So far as the appendix 20 figure of £106,185 is concerned (dealt with at paragraph 50 of the ruling), it relates to the period 2009 and, again, we are satisfied that the only amount that could conceivably have been double counted would have been the sum of £150 on 3 February 2010. But since the judge only counted sums over £500 we are satisfied that it was not included and there was no double counting in relation to appendix 20. 38 Next, appendix 21 (dealt with by the judge at paragraph 51) led to the sum of £7,784.17. Again, there is nothing in appendix 2A that appears there that could amount to double counting. The same is true of appendix 23 (dealt with at paragraph 53 by the judge) in the sum of £14,000. That sum does not appear on appendix 2A and there was no double counting. 39 That leaves appendix 22, dealt with by the judge at paragraph 52. The judge took a figure of £200,000 from HOM/195 appendix 22. He based the figure on an entry on that document that read as follows: “So as of 31 May 2010 P still owed 50 for old AC and 150 for Abbott House. To P £200,000.” That is the figure that the judge took. None of the payments immediately below the figure of £200,000 appear in appendix 2A and there was no double counting in relation to those payments. 40 There is however an entry in appendix 22 under a heading “New T and P from 1 June 2010” that reflects the four sums to which we earlier referred (totalling £12,000). In fact, those amounts appear under a column that included other amounts as well that do not appear on appendix 2A, and the total amount in that column is £15,000. 41 Ms Bracken submitted that the presentation of this document is not as per the original and that there were different headings. We have not been shown any other document that supports this submission. All we can do is look at the documents available and the conclusions reached by the judge, who expressed repeatedly his concern to ensure that there was no double counting. We can see where the £200,000 came from. It related to a period “as of 31 May 2010”. The entries in appendix 22 related to a subsequent period. There was no evidence before the judge, nor is there any evidence from the appellant now, to the effect that the £200,000 total fell to be reduced by the sums totalling £12,000 in appendix 22 and nor are we prepared to draw such an inference now. It would be unsupported by evidence, and therefore quite wrong to do so. 42 As we have said, the judge was faced with a situation in which the appellant did not give evidence to explain any of these points, as he could have done. He could have gone into the witness box to say that the sum of £200,000 was not in fact paid to him despite the entry. He could have gone into the witness box to say that the £200,000 was in fact subsequently reduced; or had been double counted in some specific way. He did none of these things. We have reached the conclusion that we cannot safely infer that there was any double counting by reference to the four amounts to which we have referred. Accordingly, this ground fails and is dismissed. 43 The result is that the appeal is allowed on ground 1 alone. The available amount is reduced to reflect the deduction of the sum of £42,675.34, made up by the four HMRC cheques to which we have referred. The hidden asset figure arrived at by the judge is quashed and for it is substituted a revised hidden asset figure of £169,475.40. To that extent only, the appeal is allowed. __________

2022_12_02-5519.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/1818/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/1818

c43fda5e06a3c72aea6ece3ee1e9eb1d89b292a855ec1e7427a7446bee846c3c

[2023] EWCA Crim 1050

EWCA_Crim_1050

2023-08-04

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202200288/B4 [2023] EWCA Crim 1050 Royal Courts of Justice Strand London WC2A 2LL Friday 4 August 2023 Before: LORD JUSTICE DINGEMANS MR JUSTICE GOOSE MRS JUSTICE FARBEY DBE REX V MUBARAK ABDI JIBRIL __________ 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 D HAROUNOFF appeared on behalf of the Applicant. J U D G M E N T MRS JUSTICE FARBEY: 1. On 22 July 2021, in the Crown Court at Leicester before Mr Recorder Auty KC, the applicant (then aged 26) was convicted of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861 (count 1) and arson being reckless as to whether life is endangered, contrary to section 1(2) and (3) of the Criminal Damage Act 1971 (count 3). He was acquitted of arson with intent to endanger life (count 2). 2. On 17 December 2021, before the same Recorder, the applicant (then aged 27) was made the subject of an extended sentence for the arson, comprising a custodial term of 12 years and an extension period of 5 years. He was sentenced to a concurrent sentence of 4 years' imprisonment for the wounding offence. He renews his application for leave to appeal against conviction following refusal by the single judge. 3. Having advanced grounds of appeal before the single judge without the benefit of legal representation, he instructed fresh counsel and solicitors who have very properly abandoned all of the grounds advanced to the single judge. The applicant now applies for leave to vary the Notice of Appeal to advance fresh grounds settled by Mr David Harounoff who appears before us on his behalf. We are grateful to Mr Harounoff for his helpful written and oral submissions, as well as for the work undertaken by those who instruct him. The Prosecution Case 4. In the early hours of 3 January 2021, police officers and ambulance staff were on duty in Eldon Street, Leicester, dealing with an unrelated incident. While they did so a man, Sukhwinder Sukhwinder, stumbled towards them. He was very drunk. He asked for help and said he had been hurt. He had several wounds, including some to his neck, that were bleeding. On examination by paramedics, he was found to have wounds to his chest, stomach, arms and head. There were ten wounds in total. Mr Sukhwinder seemed unclear about what had happened. He was taken to hospital. Officers made their way to his address and discovered that his flat was on fire. 5. When officers entered they found a man, Arnold Matsa, asleep on the floor. They woke Mr Matsa, who was unaware that there was a fire upstairs. The officers searched the flat. In the bedroom there was what appeared to be a mattress or bedding on fire. There was nobody else in the flat. Fire fighters and police evacuated the thirty or so other residents in the block. 6. Mr Matsa, having been the only other person known to have been in the flat, was arrested on suspicion of causing the injuries to Mr Sukhwinder. Mr Matsa told police that another male (whom he knew by the name of “Smoky”) had been to the flat. Mr Sukhwinder and Smoky had argued upstairs while he had been downstairs. When Mr Sukhwinder came downstairs, he told him that Smoky had stabbed him with scissors. Meanwhile Smoky had come downstairs, threatened to burn the flat down and then left. Mr Sukhwinder left the flat saying he was going to get some cigarettes. While he was out Smoky returned to the flat; at that point Mr Matsa was under a duvet downstairs falling asleep but he saw Smoky go into the flat and go upstairs. Smoky said that he had returned to get his belongings. He returned a few minutes later carrying what Mr Matsa described as a red blanket. He also had a pair of scissors which he put in a drawer. Smoky said “sorry” and left. Mr Matsa then drifted off to sleep. 7. CCTV footage recorded a man running across a nearby road carrying what looked like a large red blanket. Sometime later another camera captured the image of someone on nearby Maidstone Road getting into a parked car. The police went to the location of the car just after 5.30 am. The applicant was inside the car asleep. He was arrested and detained. A red item was recovered from the car. 8. In interview, the applicant's legal representative read out a prepared statement, in which he denied the offences and said that he was looking for somewhere to drink. As a Muslim he could not drink at home. It was cold and snowing so he had to run to a car he knew he could use on Maidstone Road. He replied “no comment” to all questions asked. 9. The seat of the fire was identified as being in the upstairs front bedroom in the centre of the window. The most likely cause of the fire was deliberate ignition of combustible materials by a naked flame. 10. Clothing was seized from the applicant. DNA analysis of blood found on the applicant's coat and jeans matched Mr Sukhwinder. The police found bloodstained scissors beneath a chest of drawers in the flat. A DNA sample taken from the scissors had a profile that matched Mr Sukhwinder. 11. Mr Sukhwinder was known to the police as a vulnerable individual. He suffered from mental health problems and had been attempting to access support from Social Services. On the day of the incident, he seemed not to know what had happened. A month later he was spoken to again and recalled that there had been several people at his address earlier in the evening but by the early morning there was only an older African man, who was downstairs on the sofa, and upstairs was Mr Sukhwinder and someone he described as a “boy” between 18 and 20, with darker skin than him. He remembered arguing with the boy but was not sure what it was about. There had been some pushing and the boy had pushed and tried to hit him. The boy then left. Mr Sukhwinder realised his head felt wet but did not know that he had been injured. He did not know how the fire had started but it was not there when he left his flat. Mr Sukhwinder picked out the applicant during an identification procedure. 12. The prosecution case was that the applicant attacked Mr Sukhwinder in his flat, by repeatedly stabbing him with the scissors, and started the fire. In support of that case, the prosecution relied on a number of strands of circumstantial evidence. First, there was the evidence of events which came from Mr Sukhwinder and Mr Matsa, the CCTV footage, the evidence of police officers and the police body-worn camera footage. Secondly, there was the DNA evidence. Thirdly, there was bad character evidence, which showed that the applicant had previously both threatened with, and used, knives and had previously threatened to burn a house. Fourthly, the prosecution relied on adverse inferences to be drawn from the applicant's failure to mention matters when interviewed by police which he relied on as part of his defence. The Defence Case 13. In his Defence Statement the applicant denied assaulting Mr Sukhwinder as alleged or at all and denied that he had caused the fire. He gave evidence at trial. He told the jury that he had gone to Mr Sukhwinder's flat during the evening of 2 January 2021 with two friends, Power and Max. Mr Sukhwinder and Mr Matsa were there. He had not met either man before. He recognised a man called “Adam” and there were three others at the property. They socialised and were drinking and smoking. At around 12.30 am he left with his friend Power to purchase a second bottle of alcohol. When they returned Mr Sukhwinder was bleeding from the neck. They asked Mr Matsa what had happened, he replied that he did not know. The applicant and Power went upstairs and found that Max was no longer there. Power rang Max and asked where he was. Power told Max that Mr Sukhwinder was injured. They remained at the flat for about an hour or so. Max did not return to the property. Mr Sukhwinder joined them upstairs. He was very drunk and fell to the floor. The applicant picked him up. He and his friend then took Mr Sukhwinder downstairs and put him on the sofa. Mr Matsa was seen on the floor smoking from a crack pipe. The applicant and Power then left the flat before 2.00 am, Power went home, and the applicant went to the car in Maidstone Road in order to drink alcohol. He remained there until he was subsequently arrested. He denied arguing with Mr Sukhwinder, denied injuring him and denied setting fire to the premises. Under cross-examination he accepted his nickname was “Smoky”. 14. At the close of the prosecution case the applicant's trial advocate made a submission of no case to answer. The Recorder ruled that the matters raised by the application went primarily to the weight of the evidence. To withdraw the matter from the jury at that stage would have usurped the function of the jury. Grounds of Appeal 15. The grounds of appeal on which the applicant now seeks to rely make no criticism of the Recorder or indeed of the prosecution. They relate entirely to the previous representative's conduct of the case. It is submitted that the applicant provided his solicitors with clear written instructions in a Proof of Evidence on 7 June 2021, in which he said that after he had returned to Mr Sukhwinder's flat with alcohol, Mr Sukhwinder told the applicant that “the other guy” (meaning Max) had stabbed him. Power called Max on his phone, Max answered and told Power and the applicant that Mr Sukhwinder was holding some scissors and was drunk. Max said that he had grabbed the scissors and stabbed Mr Sukhwinder because Mr Sukhwinder was trying to rob him. Max had then left the flat. 16. Mr Harounoff emphasises that the Defence Statement did not include these instructions. He has told us that, prior to giving evidence, the applicant was advised by his trial advocate not to blame Max for the wounding and arson as it would expose the applicant to a bad character application by the prosecution. It is said that the applicant followed this advice and did not mention the conservation with Mr Sukhwinder or the telephone call with Max. As a result, evidence that he could and should have given was suppressed. This deprived the applicant of having his full defence investigated by the police and Mr Sukhwinder was not cross-examined in accordance with the applicant's full instructions. 17. Corroborative evidence from a neighbour, said to identify Max as having spent weeks bullying Mr Sukhwinder, had been uploaded onto the Digital Case System but it was neither utilised nor investigated by the applicant's previous solicitors. There was nothing to suggest that the solicitors had asked the prosecution to investigate. Respondent's Position 18. The prosecution have lodged a Respondent's Notice but only in response to the grounds of appeal of the applicant's own composition, in which they resisted the application for leave to appeal. The prosecution was given the opportunity to respond to the application to vary the Notice of Appeal but did not wish to do so. We have not found it necessary to delay this application in order to seek further submissions from the prosecution. Discussion 19. By reference to the documents that are now before the Court, we accept that the applicant instructed his trial lawyers on 7 June 2021 that Mr Sukhwinder had on the night of the attack blamed Max and that the applicant had overheard Max admitting to stabbing Mr Sukhwinder with the scissors. The Defence Statement is dated 11 June 2021. It does not mention either of these matters. However, it does mention that by the time the applicant and Power had returned to the flat after buying alcohol, Max had left the address. It mentions that Power telephoned Max in the applicant's presence and that he could hear what was being discussed about what happened before Max left. 20. We have been provided with a file note made by the trial advocate on 15 July 2021, saying: “Advised of danger of implicating another as responsible for the offences. Risk of pre cons going in as evidence. I would prefer to keep them out as potentially prejudicial.” 21. Mr Harounoff criticises that advice on the grounds that evidence relating to the perpetrator of the offences charged on the indictment concerns the alleged facts of the offences and so would not have engaged any of the statutory gateways for the admission of bad character evidence. By email to the Criminal Appeal Office, dated 3 April 2023, the trial advocate confirmed that she advised the applicant of the risk of an adverse inference being drawn if his evidence was inconsistent with the content of his Defence Statement. Notwithstanding the emergence of these matters the only question for this Court on appeal would be whether the convictions are unsafe. 22. We are not persuaded that the proposed new grounds meet that test, even arguably. First, any difference between the Proof of Evidence and the Defence Statement has no arguable bearing on the safety of the arson conviction. Max is not alleged by the applicant to have been in the flat when the fire was set, and no evidence has been drawn to our attention which suggests, or may suggest, that having left the flat, as the applicant claims, he later returned. 23. Secondly, irrespective of whether the Defence Statement expressly referred to Max as the perpetrator of the offences, it was open to the applicant's former solicitors to investigate, or cause to be investigated, the relationship between Mr Sukhwinder and Max. There was nothing to prevent the applicant from raising their failure to investigate, or to ask the prosecution to investigate, in his initial grounds of appeal. He has provided no adequate explanation as to why he did not do so. The solicitor’s failure to investigate is, in our view, a very late afterthought and relies on what, at this stage, is undue speculation. 24. Thirdly, the jury were aware of the applicant's case that he was not in the flat either when Mr Sukhwinder was wounded or when the fire was set. But there were a limited number of other candidates. In order to convict the applicant, the jury must have been sure that it was the applicant rather than another candidate who both stabbed Mr Sukhwinder and set the fire, both of which required the perpetrator to be present in the flat. The jury must therefore have disbelieved the applicant's version of events, namely that he was absent at the material times. If he was not absent from the flat, his account of the phone call with Max makes no sense. 25. In short, the allegations against Max made in the Proof of Evidence do not in themselves rebut the prosecution evidence, albeit circumstantial, that placed the applicant in the flat at the time that the offences were committed. The trial advocate’s advice fell within the boundaries of legitimate and proper tactical advice for a defendant whose bad character presented risks at trial under section 101(1) (g) and 106 of the Criminal Justice Act 2003 , in light of the nature of the offences with which he was charged. The prosecution was on conventional principles entitled to put its case on the basis of circumstantial evidence. The assertion by the applicant that Max was the perpetrator comes only from him and cannot on its own, in our view, advance this application. 26. For all these reasons, despite the excellent submissions which we have heard today, we refuse leave to amend the Notice of Appeal which would serve no purpose, and we would refuse leave to appeal. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]

2023_08_04-5786.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1050/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1050

0ef2fe6310872d4095aa5f487f609468e52e9702fc84a849b4563d5391e971cc

[2024] EWCA Crim 520

EWCA_Crim_520

2024-05-01

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202303233/A5 Neutral Citation Number: [2024] EWCA Crim 520 Royal Courts of Justice Strand London WC2A 2LL Wednesday 1 May 2024 Before: LORD JUSTICE LEWIS MR JUSTICE GOSS HER HONOUR JUDGE MONTGOMERY KC (Sitting as a Judge of the COURT OF APPEAL (CRIMINAL DIVISION)) REX V MARK WINTERBURN __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MR D HALL appeared on behalf of the Appellant. _________ J U D G M E N T 1. LORD JUSTICE LEWIS: The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Consequently, no matter relating to the person against whom the offence has been committed shall, during that person’s lifetime, be included in any publication, if it is likely to lead members of the public being able to identify that person as the victim of that offence. 2. On 7 July 2023, in the Crown Court at Leeds, the appellant, Mark Winterburn (now aged 33), was convicted of an offence of rape. On 21 August 2023, he was sentenced to an extended determinate sentence of 19 years, comprising a custodial element of 14 years and an extended licence period on release of 5 years. He appeals against sentence with leave of the single judge. 3. The facts can be stated shortly. The victim was a woman who had a number of vulnerabilities relating to her health and she had also struggled with alcoholism. The appellant knew the victim. On a date in about March 2021, the appellant had been drinking with the victim at her home. The victim had not consumed alcohol for some time. When those caring for the victim became aware of what was happening, they gave the appellant £10 to persuade him to leave the property. The victim by then was very intoxicated. The carers put her to bed, secured the property but they left a window open. The appellant returned. He got into the property and he went into the bedroom. The victim was asleep. He got on top of her and inserted his penis into her vagina. She woke up and pushed him off and went to the living room. The appellant got up and behaved as if nothing had happened. 4. We have read the victim’s personal impact statement. The rape understandably left her feeling helpless and vulnerable and she felt unsafe in her own home. Fortunately, following the conviction of this appellant, things have improved for her, and she has been able to make positive changes in her life. 5. The appellant has a long criminal record with 41 convictions comprising 52 offences, although none of the offences were sexual offences. Many were burglaries and theft, committed to fund the appellant’s own drinking. The pre-sentence report identified him as a person who presented a high risk of serious harm to vulnerable females particularly those who befriended him. 6. In his sentencing remarks, the judge found that this was a category 1B offence within the meaning of the Sentencing Council’s Guidelines on Rape. Dealing with harm, the judge identified that there were two category 2 harm factors present. Firstly, there was the uninvited entry into the victim’s home, and secondly, there the victim was particularly vulnerable due to the fact that she was intoxicated. The judge considered that the combination of those two factors justified elevating the harm to category 1. He also found, and it is accepted, that the appellant’s culpability was category B under the guidelines. Under the Sentencing Guidelines, the starting point for a category 1B offence is 12 years’ custody, with a sentencing range of 10 to 15 years’ custody. However, if it had been a category 2B offence, the starting point is 8 years’ custody with a range of 7 to 9 years’ custody. 7. Having placed the offence within the higher category (category 1B), the judge took as the starting point a period of 12 years’ custody. He considered there were aggravating factors, in that the appellant had previous convictions and had committed this offence whilst on bail. In addition, the timing and location of the offence were aggravating factors. The offence was committed at night, in the victim’s own home. He adjusted the sentence upwards to 14 years’ custody. In addition, he was satisfied that the appellant was dangerous in the sense that that word is used in the Sentencing Act 2020. He therefore imposed an extended determinate sentence of 19 years which comprised 14 years’ custody and then an extended licence period of 5 years. 8. In his focused written and oral submissions on behalf of the appellant, Mr Hall advances one principal ground of appeal, namely that the judge erred in placing this within category 1B rather than category 2B so far as harm is concerned. The Sentencing Council Guidelines provide that the extreme nature of one or more category 2 factors or the extreme impact caused by a combination of category 2 factors may justify elevating the offence to the higher category 1. Mr Hall submitted however that that did not apply in this case. Consequently, he submitted the judge was wrong to place the offence in category 1B. He should have placed it within category 2B, which had a lower starting point of 8 years’ custody and a lower range of 7 to 9 years’ custody. 9. We accept Mr Hall’s submission. The Sentencing Council Guidelines provide, in relation to category 1 harm, that the extreme nature of one or more category 2 factors or the extreme impact caused by a combination of category 2 factors may elevate to category 1. There were two category 2 factors here - the uninvited entry into the victim’s own home and the fact that the victim was particularly vulnerable as she was intoxicated. There is nothing to indicate that either of those factors was extreme, in the sense that that word is used in the guidelines. There is nothing to suggest that the combination of the two factors caused an extreme impact. The judge did not address the issue of the nature of the factors or why he considered the impact of the combination of those factors was extreme. 10. In the circumstances therefore, the offence should have been categorised as a 2B offence. The starting point for that category is 8 years’ custody. The sentence here would have to be adjusted to the very top of the range, that is 9 years given the aggravating factors, that it was committed whilst the appellant was on licence, his previous convictions and the location and timing of the offence, which occurred, as we said, at night and in the victim’s own home. The judge was entitled to conclude that the appellant was dangerous, in that he presented a significant risk to members of the public of serious harm, and to impose an extended determinate sentence with an extended 5-year licence period. In the circumstances therefore, we allow the appeal. We quash the extended determinate sentence of 19 years and we substitute an extended determinate sentence of 14 years, comprising a custodial element of 9 years and an extended licence period of 5 years. To that extent, this appeal is allowed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: [email protected]

2024_05_01-6138.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/520/data.xml

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446f53f3e6054f123cb02ac0e8122a8cf989035577a8f05bc11aa669f8f97b3d

[2013] EWCA Crim 2408

EWCA_Crim_2408

2013-11-29

crown_court

Neutral Citation Number: [2013] EWCA Crim 2408 Case No: 201300122 C2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 29 November 2013 B e f o r e : LORD JUSTICE McCOMBE MR JUSTICE MITTING MR JUSTICE PHILLIPS - - - - - - - - - - - - - - - - - - - - - R E G I N A v JA - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street L

Neutral Citation Number: [2013] EWCA Crim 2408 Case No: 201300122 C2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 29 November 2013 B e f o r e : LORD JUSTICE McCOMBE MR JUSTICE MITTING MR JUSTICE PHILLIPS - - - - - - - - - - - - - - - - - - - - - R E G I N A v JA - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2AY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr AK Montgomery appeared on behalf of the Applicant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE MITTING : The applicant is now aged 32. He has previous convictions but nothing of immediate relevance. On 6 December 2012, at the Inner London Crown Court before HHJ Grobel and a jury, the appellant was convicted of rape and on the same day sentenced to 8 years' imprisonment. 2. The facts which gave rise to the charge against him were that on 12 June 2011 he was at the home address of the complainant MM, his former partner. They had spent the day together with their son aged 3 years. MM's evidence was that in the evening, after an uneventful day, the applicant became verbally abusive about a matter, which was completely trivial: leaving on the television picture while they were out. MM asked him to calm down. He accused her of never listening and then began to become violent. He pulled her hair and slapped her in the face. She was wearing at the time her dressing gown with a cord around the middle. He took the cord from the dressing gown and began to strangle her with it. He dragged her on to the bed by the cord. He then removed her lower clothing, ripped her top and knickers and engaged in vaginal sexual intercourse, during which he ejaculated all without her consent. 3. Afterwards, according to her, he asked her what it felt like to be raped. He threatened to keep her in the flat for three days and call his friend so that he could also rape her. He said he would rape her again and in a vivid phrase, to which the judge referred when sentencing him, said that whenever in the future she had sexual intercourse she would see his face and remember the rape. 4. Throughout this incident their three-year-old son was in the adjoining room. He heard MM and she heard him crying. After the attack she went to comfort him. The applicant then left. MM contacted a friend by text and told her that she had been raped by him. On her friend's advice she summoned the police and while being taken from her flat by the police and the ambulance service she was contacted by the applicant on her mobile telephone. 5. A medical examination at lunchtime on 13 June revealed injuries consistent with strangulation by the dressing gown cord, bruising to her neck left by the cord, the visible imprint of her necklace on the flesh of her neck caused by the pressure of the cord on the necklace, and petechial spots below the right eye. There were also bruises on her neck, to her lips, arms, legs, back and abdomen and an abrasion on her buttocks. There were no genital injuries. The ripped top and knickers were retained by the police and exhibited at the trial. 6. The applicant was arrested on 27 June. In interview he denied any wrongdoing. He said that he and MM had remained sexual partners right up until 12 June and had enjoyed a harmonious relationship. He said that they had had consensual intercourse on 12 June. He was unable to explain in interview, or in the evidence that he gave subsequently at the trial, how MM had come by the injuries to which we have referred. He tendered an explanation about the ripped clothing. 7. At the start of the trial the judge was invited to rule upon a prosecution application to adduce evidence from MM, which she had given in her interview, about previous domestic violence at the hands of the applicant occurring over many years. The judge acceded to the application on the basis that it was capable of demonstrating a propensity to violence. In due course he gave correct directions about the manner in which the jury should treat these earlier alleged incidents and summed them up at moderate length in the course of a comprehensive summing-up, which must have been helpful to the jury in focusing their attention upon the critical issue in the case, namely whether or not the sexual intercourse on 12 June occurred with or without the consent of MM, and whether or not the applicant knew that she was not consenting or lacked any reasonable belief in the fact that she was. 8. Mr Montgomery, who appeared for the applicant at the trial, renews his application for permission to appeal against conviction on the basis that the judge should not have admitted evidence of previous domestic violence. He submits that it distracted attention, or was capable of distracting attention, from the principal issue in the case and caused prejudice to the applicant, which he could not readily deal with because MM had made no contemporaneous complaints to friends or to the authorities about the incidents of violence of which she had spoken. He submits that in summary the attention of the jury may well have been distracted from the critical issues so rendering the conviction unsafe. 9. We do not accept that proposition. Although we have not been shown the defence case statement, from what the applicant said in interview and from what he said in evidence, it was his case that a harmonious relationship had existed between him and MM up until 12 June. In those circumstances it was unsurprising that the Crown and the judge thought that it was desirable that the jury should hear evidence about the background. Further, and critically, this rape on the complainant's evidence was not a rape in which violence had been used to secure the submission of the victim for the purpose of sexual gratification of the offender, it was a rape in which penetration was used as a means of enforcing the will of the assailant upon his victim. In other words, it was one of those rapes on the complainant's evidence which was, in truth, an offence of violence, at least as much as, if not more than, it was an offence of non-consensual sex. 10. Furthermore, the case against the applicant was overwhelming. The injuries sustained by the complainant, together with her torn up clothing, were only explicable by the circumstances of which she gave evidence. He, the applicant, had no counter and offered no explanation for the allegations that the injury had been caused by the application of force by the dressing gown cord on her throat. In those circumstances we have no doubt that this conviction is safe and like the Single Judge refuse this application. 11. Mr Montgomery submits that the sentence of 8 years' imprisonment imposed was manifestly excessive, or at least arguably so. Again we reject that submission. In his sentencing remarks the judge made the following observations: "You forced her into sexual intercourse by your violence using her dressing gown cord around her neck, half choking her, which was very frightening for her, and slapping her around the face. You tore off her knickers. All the time she tried to resist, begging you not to penetrate her. You did and you ejaculated. Immediately after you asked her how it felt being raped, and you told her that if she slept with another man she would see your face. You threatened to get your friend to rape her. And finally you told her all she could now do was hang and kill herself. This was the mother of your three year old son who was in the room next door at the time. The facts of your rape in my view speak for themselves. Violent, deliberately callous, deliberately cruel and no remorse. There is no victim impact statement from the victim, but the traumatic effect on her was obvious at the time and remained obvious throughout the ordeal for her of giving evidence." 12. In our judgment, the judge was fully entitled to pass the sentence that he did. He was right subsequently to observe that this was sustained personal violence, even thought it may have occurred in a relatively short compass of time. The aggravating features which he correctly identified put this at the very least at the top of the lowest category, rape of an adult, and arguably into the second category. 13. Finally, Mr Montgomery submits that because the applicant was serving a sentence of just over 2 years for handling imposed for an offence committed during the 2011 London riots, so this sentence offended against the principle of totality. We disagree. This was a justified sentence for a wholly separate offence. The fact that the applicant had been earlier convicted and properly sentenced for a different offence does not make the imposition of this sentence arguably excessive. 14. For those reasons this renewed application is refused.

2013_11_29-3290.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/2408/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/2408

0b6d65cbd1866467707bb8ea974639fbc9ab82744d3614c27d9ce355b8fa6226

[2012] EWCA Crim 2054

EWCA_Crim_2054

2012-07-02

crown_court

Neutral Citation Number: [2012] EWCA Crim 2054 Case No : 2011/7059/B4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Monday, 2 July 2012 B e f o r e : LORD JUSTICE MOSES MR JUSTICE ROYCE MR JUSTICE SINGH ---------------------------------- R E G I N A v MUSIE ASGODOM ---------------------------------- Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY

Neutral Citation Number: [2012] EWCA Crim 2054 Case No : 2011/7059/B4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Monday, 2 July 2012 B e f o r e : LORD JUSTICE MOSES MR JUSTICE ROYCE MR JUSTICE SINGH ---------------------------------- R E G I N A v MUSIE ASGODOM ---------------------------------- 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 Simpson (Solicitor Advocate) appeared on behalf of the Appellant Miss F Swain appeared on behalf of the Crown ---------------------------------- J U D G M E N T 1. LORD JUSTICE MOSES: This is an appeal against conviction which raises the issue as to the use of equipment in a jury room to examine DVDs when that equipment had not been used previously in court. 2. The appellant appeals against conviction for an offence of sexual assault and an offence of rape alleged to have been committed against two different women in relation to the appellant's work as a taxi driver. The convictions were at Sheffield Crown Court on 18th November 2011. 3. The appellant worked as a late night taxi driver. Both the complainants were female students at Hallam Sheffield University. The first count concerned a complainant, RA, who had left the Paris Club in Sheffield on 22nd March 2011 at about 3.15 am. She obtained the services of a cab and the taxi driver was this appellant. When they reached her destination, the driver gave the amount of the fare but said that if she allowed him to give her a kiss she would not have to pay. She thought it was a joke and put the fare through the plastic partition, but he kissed her hand. She attempted to escape but the driver got out, got hold of her, put his arms around her and grabbed her in that way as she tried to get away. He then grabbed her left breast saying, "Come on, come on." He then took hold of her bottom. The appellant was traced but the police did not pursue it at that stage. 4. However, not long after, on 1st April 2011, another complainant was, so the prosecution said, the victim of a far more serious sexual attack. She too had been out drinking. She was a student. She said she was in a car park when the appellant pulled up in a taxi asking if she needed a lift. She said that she had not any money because she had lost her bag, but the driver agreed to take her home and she said she would get some money from her friend. She did not recognise the route they were taking and the driver then pulled into a car park, got out of the taxi and opened the back door. He was exposing himself and, so she complained, put both hands on the back of her head, pushed her head down and forced her to place his penis in her mouth. It happened over a very short time. She managed to get away, but in order to identify him she grabbed hold of his ID badge. She then ran into a Spar shop screaming "help me". A student who was in the shop saw that she had the taxi driver's identification badge and the taxi driver pursued her, trying to get hold of it. That was also witnessed by another witness who observed that the shop owner handed back the ID badge to this appellant. The appellant was subsequently arrested and denied the offence. 5. There were two pieces of evidence which did not depend upon the evidence of either the complainants or the witnesses or the defendant who himself gave evidence denying that he was responsible. The first was CCTV evidence showing images of the cab in the car park in Sheffield. That evidence is of particular relevance in this appeal. The other piece of evidence was DNA evidence which after the appellant was arrested was found on his underwear and showed not only traces in the amylase of his partner, but DNA from this complainant or to be more accurate showing that the chance was one in 7,400 that it had been someone else other than the complainant in count 2. The appellant sought to explain that by saying that she must have put his identity badge in or near her mouth and that when he snatched it back it got on her hands and subsequently on to his underwear. 6. The issue in the appeal does not require any further elaboration of the evidence. Naturally the prosecution were anxious that the jury should see the CCTV. They contended that it showed from behind movements of the ankles of this appellant consistent with the occasion when he orally raped her. The defence said nobody could see anything of the sort. 7. The DVDs were played a number of times during the course of the evidence on, as we understand it, both the large screens in court and also on a smaller computer which had been obtained from the Crown Prosecution Service. 8. The judge summarised that part of the evidence by saying: "[The appellant] denied that he was rocking on his heels in that clip that you can see in the car park. The prosecution said there is evidence of that. The defendant says no there is not." After the jury retired, it emerged that the machine on which they were to look at the DVD within the privacy of their own retiring room could not fast forward and a different machine was sent to them - what was described as a new or different machine. 9. The jury came back asking for another DVD showing inside the shop saying in a note this: "Can we have the DVD showing inside the Spar as the other has proved much more enlightening now that we can see it clearer." 10. In argument in this appeal, Mr Simpson contends that there was a material irregularity in allowing the jury to see evidence after the jury had retired which was not evidence in the case during the conduct of the case. There is ample authority for the proposition that in most cases, although not inevitably, it is quite wrong for evidence to be adduced after the evidence has been called, for example see R v Imran and Hussain [1997] Crim.L.R 754. 11. The first question, however, is whether there was anything new before the jury after the new machine had been given to them. Mr Simpson contends that the note from the jury reveals that it was fresh evidence in the use of the comparative term "clearer" in the note to which we have already referred. We do not agree. The note is equally consistent with the view of the jury that the machine they were now looking at the DVDs on was better and clearer at showing the images on the CCTV than the machine which would not fast forward. There is no warrant for inferring from what they said that what they were seeing was clearer than that which they had seen in court in evidence. If that is right, then that is the end of the ground of appeal. There is no difference. 12. But the next possibly more significant question is, if Mr Simpson is right, whether there was any irregularity in furnishing to the jury a machine that allowed of a clearer image than that which had been seen in court. Mr Simpson says it was a material irregularity relying on, for example, R v Devichand [1991] Crim.L.R 446. In that case an exhibit of paint tins was given to the jury in the jury room where they observed that there was on the tins labels which gave the lie to the account the defendant had given at trial. Those labels had never been noticed before, had not been the subject of any evidence nor of any discussion. In those circumstances this court allowed the appeal because the evidence was inconsistent with the defendant's evidence and had not been the subject of any debate or discussion at the appropriate moment during the course of the evidence. 13. This case in our judgment is wholly different. The evidence which was before the jury during the course of the prosecution and for that matter the defence case, was the CCTV as transposed to the DVD. Nothing new, nothing different was given to the jury in the jury room. It is now common, provided that the jury are warned not to manipulate the film, for jurors to be allowed to look at film within the privacy of their own jury room - see for example R v Haque [2005] EWCA Crim. 2327 and R v Douglas Edwards [2006] EWCA Crim. 1944 . 14. The latter case is of significance in the instant appeal because it shows that provided images are properly before the jury by way of exhibit, the fact that some of them have not previously been debated or discussed does not mean to say that the jury is looking at new evidence when they examine them more fully within the privacy of their own retiring room (see paragraph 19). What happened in this case was that the machine that was furnished to them allowed them to have a greater opportunity to examine with greater clarity that which was already in evidence. Even if we were to assume, which we do not, that this showed a clearer image than had been seen before, that would be of no consequence since the CCTV was evidence properly adduced during the course of the time that the evidence was taken. The reality is no different from those cases where a jury was properly allowed to take, as they used to, magnifying glasses into the jury room to examine images on photographs. 15. In those circumstances, there is in our view nothing improper or unfair or irregular in what happened during the course of this case. The verdicts were not unsafe and we dismiss this appeal. 16. There is now before us a renewed application for permission to appeal against sentence. The sentence that is appealed against was one of nine months' imprisonment consecutive for the sexual assault which we have already described. It is said that if you look at the guidelines you can see that what is recommended is a community order for contact between part of an offender's body other than the genitalia with part of the victim's body other than the genitalia and in this case it is not suggested that the genitalia were touched, although there was an allegation in relation to her breast and her bottom. 17. However, although there are said to be none of the aggravating factors identified in the table, this clearly was a very serious offence. One has only to refer again to the time of night, the middle hours of the early morning, and thus the vulnerability of the young student who was assaulted in this way. Even more serious was the position held by this appellant. Taxi drivers are in a peculiarly responsible position so far as the care of their passengers. When that care is abused, as it so seriously was in this case, then the custody threshold in our view is exceeded. It is particularly important not only for the protection of the victims, but also for other taxi drivers that courts take a very serious view of this sort of offence. 18. In those circumstances, we think the single judge was entirely right to refuse permission. So do we. 19. We should say that the 110 days of qualifying conditions of bail will be deducted from the total sentence but subject to any revision should it prove that those days are not accurately recorded.

2012_07_02-3006.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/2054/data.xml

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cfbb635aeda41320f337c4dc4673eeb94b942d74c28c7907dcba01fe5734e4be

[2006] EWCA Crim 162

EWCA_Crim_162

2006-02-17

supreme_court

Case No: 2006/00036/A0 Neutral Citation Number: [2006] EWCA Crim 162 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT MIDDLESEX GUILDHALL HIS HONOUR JUDGE LAWRENCE Royal Courts of Justice Strand, London, WC2A 2LL Date: Friday, 17 th February 2006 Before : LORD JUSTICE PILL MRS JUSTICE SWIFT DBE and HIS HONOUR JUDGE RADFORD QC - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN RESPONDENT - and - DEAN BADREDAN BARBER Appellant - -

Case No: 2006/00036/A0 Neutral Citation Number: [2006] EWCA Crim 162 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT MIDDLESEX GUILDHALL HIS HONOUR JUDGE LAWRENCE Royal Courts of Justice Strand, London, WC2A 2LL Date: Friday, 17 th February 2006 Before : LORD JUSTICE PILL MRS JUSTICE SWIFT DBE and HIS HONOUR JUDGE RADFORD QC - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN RESPONDENT - and - DEAN BADREDAN BARBER Appellant - - - - - - - - - - - - - - - - - - - - - (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 ADAM CROOK for the Appellant - - - - - - - - - - - - - - - - - - - - - Judgment Mrs Justice Swift: 1. On 9 th November 2005, at the Crown Court at Middlesex Guildhall, the appellant pleaded guilty to one count of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861 , and one count of criminal damage. He had originally been charged with an offence of robbery to which he had pleaded not guilty. On the first day of the trial, the indictment was amended to add counts of assault occasioning actual bodily harm and criminal damage. The appellant was then re-arraigned and pleaded guilty to those counts. The prosecution offered no evidence on the robbery count and a verdict of not guilty was entered on that count. The appellant had made admissions to the police about assault and criminal damage and would have pleased guilty to those offences in the Magistrates’ Court. Effectively, therefore, he pleaded guilty at the first opportunity. 2. The case was adjourned for sentence and, on 7 th December 2005, the appellant was sentenced by His Honour Judge Lawrence to six months’ imprisonment on the assault and three months’ imprisonment consecutive on the criminal damage. At the time of sentence, it was agreed by counsel for the prosecution and for the defence that the appellant had served a period of 161 days in custody on remand in connection with the robbery. It is the manner in which that period was dealt with by the sentencing judge that is the subject of this appeal. 3. The appellant applied to the single judge for leave to appeal against his sentence and for bail. The single judge granted leave to appeal but refused bail. He directed that the appeal should be expedited. 4. The facts are these. At about 5.00pm on 12 th May 2005, the appellant’s mother, Mrs Fatima Zouyed, decided to go and see her mother. As she went down to the ground floor of the block of flats where she lived, she saw the appellant waiting. The appellant said that he wanted to go up to his mother’s flat to collect some clothes. Mrs Zouyed said that she was on the way out. The appellant insisted that she had to go upstairs with him because he wanted his clothes. Mrs Zouyed followed the appellant to the flat because she was afraid of him and scared about what he might do if she refused him. 5. Once upstairs, the appellant asked his mother for money. She handed over £55 in cash. It was her benefit money and she was left without any source of income until her next benefit payment was due eleven days later. The appellant then lifted his right foot and kicked his mother hard on the right thigh. The force of the blow was sufficient to make his mother stagger to the wall and fall down. Because she was scared and it was evident that the appellant had completely lost his temper, she left the flat in a distressed state, crying. The kick resulted in a bruise to Mrs Zouyed’s thigh which measured seven centimetres by four and a half centimetres. This incident is the subject of the count of assault occasioning actual bodily harm. 6. Mrs Zouyed returned home the next day. On entering the premises, she found that the intercom telephone inside her flat had been torn off the wall. This incident is the basis of the criminal damage count. 7. Later that same day, Mrs Zouyed’s daughter reported the assault to officers at the Paddington police station on behalf of Mrs Zouyed, who does not speak English. On the same day, the appellant attended the police station in relation to another matter and was arrested. When interviewed by the police, the appellant said that he had argued with his mother about him having a set of her keys to her flat. He had got into a rage and lashed out, accidentally kicking her on the leg. He said that he had been angry at himself for what he had done and had smashed the intercom with his fist before leaving the flat. 8. The appellant was born on 2 nd September 1984. He is now 21 years old. He has thirteen previous Court appearances for a total of fifteen offences, including offences of theft, wounding, robbery, having a bladed article in a public place and, on four occasions, possession of controlled drugs. Recently, his criminal behaviour has taken the form of committing offences against family members. In October 2002, he was convicted of an offence of criminal damage to property belonging to his mother. In October 2004, he was convicted of two offences of pursuing a course of conduct amounting to harassment of a former partner. On that occasion, the Magistrates imposed community rehabilitation orders and made restraining orders, each to last for 24 months. In April 2005, for breach of the restraining orders, he was sentenced to a fine of £100 or one day’s imprisonment. The community rehabilitation orders were left in place. On 15 th May 2005, the appellant was sentenced to three months’ imprisonment for an offence of common assault on his mother. That assault had been committed early in 2005 and the appellant was on bail in respect of that offence at the time he committed the offences with which we are concerned. It was a condition of his bail that he did not go within 100 metres of his mother’s address. It was no doubt as a result of his breach of that bail condition that he was remanded in custody after his arrest for robbery on 13 th May 2005. His release date for the sentence imposed on 15 th May 2005 was 28 th June 2005. He was not released on that date but continued to be remanded in custody until he was sentenced on 7 th December 2005. 9. The Pre-Sentence Report on the appellant noted that, although he had pleaded guilty to the offences, he blamed his mother for his actions. He claimed that she had taunted him about his destructive lifestyle and that, as a result, he had lost his temper and lashed out at her. The reference to his destructive lifestyle was in connection with his addiction to crack cocaine. He acknowledged that he had on occasions been violent to his former partner and mother when under the influence of crack cocaine. However, he claimed to have stopped taking the drug in January 2005 and was confident that he needed no assistance in preventing a relapse. The author of the Report expressed the opinion that the appellant abused the love that his mother had for him. His risk of re-offending was assessed as high, with a consequent high risk of harm to his mother and to future partners. Probation intervention had not been effective in the past. A period in custody was the most suitable option available. 10. There was also a Prison Report available to the sentencing Judge, which demonstrated that the appellant had participated in sessions dealing with violence reduction strategy and family responsibilities and had accessed the services of CARAT, an advice service for drug users. 11. In sentencing the appellant, the judge said that he did not accept the appellant’s allegation, as set out in the Pre-Sentence Report, that his mother had taunted him. He observed that the offence of assault was plainly so serious that it merited a sentence of imprisonment. He then said: “So far as the assault (sic) , bearing in mind your pleas of guilty and the period of 161 days that you have since spent in custody, there will be a sentence of six months’ imprisonment. For the criminal damage a further sentence of three months’ imprisonment, to be served consecutively; a total of nine months’ imprisonment.” 12. We were told that, at the time the appellant was sentenced, both prosecuting and defence counsel believed that the judge had intended that the period of 161 days previously spent in custody should be counted as time served as part of the sentence and that the appellant would therefore be released immediately. Defence counsel informed the appellant that this was the case. Later in the day, however, it became clear that the appellant would not be released. When enquiries were made of the judge through the Court clerk, he confirmed that it had been his intention that the time spent in custody should not count as part of the sentence to be served by the appellant. 13. In his written and oral submissions to this Court, Mr Crook submitted that the learned judge’s sentence was wrong in law. He submitted that the judge should, in accordance with section 240(3) of the Criminal Justice Act 2003 , have directed that the 161 days spent in custody on remand should count as time served by the appellant as part of his sentence. Alternatively, if he had considered that such a direction was inappropriate, he should have stated his reasons in accordance with section 240(6) (b) of the Act . 14. Mr Crook further submits that the judge failed to comply with section 174 of the Criminal Justice Act 2003 , as he did not clearly state what the effect of the sentence would be. He also points out that, because he was unaware of the judge’s intention as regards the time spent in custody on remand, he had no opportunity to make representations as to why that time should count as part of the appellant’s sentence. He says that, as a result of the confusion that occurred, the appellant has a sense of grievance which he describes as justifiable in the circumstances. 15. Section 240 introduced new provisions relating to the way in which periods of remand in custody are treated by the courts. Section 240 applies where: “(1) (a) a court sentences an offender to imprisonment for a term in respect of an offence committed after the commencement of this section, and (b) the offender has been remanded in custody … in connection with the offence or a related offence, that is to say, any other offence the charge for which was founded on the same facts or evidence.” 16. The section applies to offences committed on or after 4 th April 2005. It is to be noted that, in the present case, the robbery with which the appellant was initially indicted would be a ‘related offence’ within the meaning of section 240 (1) (b) since it was founded on the same facts or evidence as the offence of assault of which he was eventually convicted. 17. Under the provisions of section 67 of the Criminal Justice Act 1967 , time spent on remand could only count as part of the sentence if the offender was not in custody for any other reason. Section 67 has now been repealed save in respect of offences committed before 4 th April 2005. Section 240 (2) sets out the new position. It provides: “It is immaterial … whether the offender – (a) has also been remanded in custody in connection with other offences; or (b) has also been detained in connection with other matters. 18. Thus, the section applies even where the offender has been in custody at the same time for other matters. 19. Section 240 (3) provides that, in a case where section 240 applies: “Subject to subsection (4), the court must direct that the number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by him as part of the sentence. ” 20. In most cases, the court may be expected to give a direction under section 240 (3) that the whole of the period of remand will count as time served as part of the sentence. The court will then impose a sentence of imprisonment which reflects the seriousness of the offence(s) for which the offender has been convicted. “ By section 240 (5) : “Where the court gives a direction under subsection (3), it shall state in open court-- (a) the number of days for which the offender was remanded in custody, and (b) the number of days in relation to which the direction is given.” 21. The purpose of this provision is to ensure that everyone with an interest in the offender’s case – in particular, the offender himself and the prison authorities – is made aware of the precise period for which the offender is to be detained in custody. 22. Section 240 (4) deals with the circumstances in which a direction pursuant to section 240 (3) need not be given. The relevant part of the section provides: “(4) Subsection (3) does not apply if and to the extent that-- (a) rules made by the Secretary of State so provide in the case of – (i) a remand in custody which is wholly or partly concurrent with a sentence of imprisonment, or (ii) sentences of imprisonment for consecutive terms or for terms which are wholly or partly concurrent, or (b) it is in the opinion of the court just in all the circumstances not to give a direction under that subsection. 23. Paragraph (a) is considered later in this judgment. As to paragraph (b), there may be circumstances in which a court may consider that it is inappropriate that the period spent on remand (or a portion of it) should count as part of an offender’s sentence. In that event, it is open to the court not to make a direction or to make a limited direction, i.e. a direction that fewer than the total number of days spent on remand should count as part of the sentence. Section 240 (6) obliges a judge who decides to exercise his discretion in this way to announce the fact in open court: “Where the court does not give a direction under subsection (3), or gives such a direction in relation to a number of days less than that for which the offender was remanded in custody, it shall state in open court-- (a)that its decision is in accordance with rules made under paragraph (a) of subsection (4), or (b)that it is of the opinion mentioned in paragraph (b) of that subsection and what the circumstances are. 24. Section 240 imposed new obligations on judges when passing sentence. They are now required to make a specific direction that the number of days which the offender has spent in custody on remand in connection with the offence or a related offence should count as part of the sentence being imposed. If a judge decides that it is just in all the circumstances not to direct that the period spent in custody on remand (or part of it) should count as part of the sentence, he is required to say so and to identify the circumstances which have led him to that opinion. 25. In the present case, the judge did not make a direction under section 240 (3) . It appears that he did not intend to do so. However, he did not state in clear terms that he did not consider it just in all the circumstances to make such a direction. It is true that, with hindsight, the formula of words he used, namely that he was ‘bearing in mind’ the period which the appellant had spent in custody, could be construed to mean that he was imposing the sentence of six months’ imprisonment for the assault in addition to that period. However, his words did not fulfil the requirements of section 240 (6) and, in particular, he did not identify the circumstances that had led to his conclusion that it was just to impose a sentence which took no account of the period spent in custody. Moreover, his words were capable of being misinterpreted and, indeed, were misunderstood by both counsel in the case. 26. The present case gives us an opportunity to remind judges of their obligations under section 240 , to which attention was drawn previously by this Court in the case of Regina v Oosthuizen [2005] EWCA Crim 1978 . Judges should state the information required under the section clearly and unambiguously so that everyone present can readily understand it. If a judge intends that the period spent in custody on remand should count as part of the sentence, he should state that fact, together with the information required under section 240 (5) , in open court. If a judge decides not to give a direction under section 240 (3) or to give a limited direction, he should say so and he should give reasons for his decision. However, obligations in connection with section 240 do not apply to judges alone. It is the duty of counsel, both prosecution and defence, to be alert to the requirements of the section, to bring the provisions of the section to the attention of the judge when it appears that he may have overlooked them and to seek immediate clarification of any ambiguities that may arise in the course of the judge’s sentencing remarks. Prosecuting counsel should be particularly vigilant in this regard. 27. We would also draw attention to the statement by Lord Justice Rose, Vice President, in Oosthuizen : “24. In future, if, in an appropriate case, the judge fails to give a direction as required by section 240 (3) , counsel for the prosecution, or the defence, should raise the matter with the Crown Court judge within 28 days, seeking a variation of the order under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 . Even outside the 28 day period, it may be arguable that the Crown Court has such jurisdiction (see Saville 70 Cr. App. R. 204) though, having heard no argument on the point, we express no concluded view. Non-direction, under section 240 (3) will not, usually, be a ground of appeal to this Court, where the sentence passed in the Crown Court is otherwise appropriate. 25. This case shows the importance of Crown Court judges being provided with accurate information as to time served, in order to enable them to carry out their obligation with regard to section 240 (3) .” 28. Section 240 does not contain an explicit requirement that a judge who is considering departing from the usual practice of making a direction under section 240 (3) should state in advance that he is considering doing so. Nevertheless, in our judgment, it is plainly good practice for a judge to inform defence counsel if he is considering making no direction and thus to give counsel the opportunity of addressing him on that issue and of seeking to persuade him that the circumstances are not such that it would be just for the period spent in custody on remand not to count as part of the sentence to be served. If this is not done, mitigation may proceed, as appears to have happened in the present case, with defence counsel and the judge at cross purposes as to the effect of the period spent on remand. If there is any reason to suppose that a judge might be considering not making a direction under section 240 (3) , or making a limited direction, defence counsel should seek clarification so as to be sure that he is able to address the issue fully. 29. We have already referred to the provision in section 240 (2) that, for the purposes of section 240 (1) , it is immaterial that the offender, while in custody on remand for the offence(s) under consideration, has been in custody at the same time for other matters. However, section 240 (4) (a)(i) and (ii) provide that section 240(3) does not apply if and to such extent that rules made by the Secretary of State so provide. On 23 rd July 2005, the Remand in Custody (Effect of Concurrent and Consecutive Sentences of Imprisonment) Rules 2005 (the 2005 Rules) came into force. Rule 2 provides: “ Section 240 (3) of the 2003 Act does not apply in relation to a day for which an offender was remanded in custody – (a) if on that day he was serving a sentence of imprisonment (and it was not a day on which he was on licence under Chapter 6 of Part 12 of the 2003 Act or Part 2 of the Criminal Justice Act 1991 ); or (b) where the term of imprisonment referred to in subsection (1) of that section is ordered to be served consecutively on another term of imprisonment, if the length of that other term falls to be reduced by the same day by virtue of section 67 of the Criminal Justice Act 1967 . 30. Accordingly, no direction that time spent in custody on remand is to count as part of the sentence should be given when, for the whole or part of that time, the offender has been serving a sentence of imprisonment for another offence. 31. Counsel at the sentencing hearing had calculated the period for which the appellant had been remanded in custody in connection with the robbery at 161 days. This represented the period from 28 th June (the date when he would have been released on licence from the sentence imposed on 15 th May 2005) to 7 th December (the date of sentence). That approach accorded with the provisions of Rule 2 (a) of the 2005 Rules provided that the Rule applies only to the custodial part of the sentence of imprisonment, as it appears to us it should, although in the absence of argument on the point we do not decide it. We would observe, however, that it is important that counsel, when calculating the period spent in custody on remand for the relevant offence(s), pay careful regard to the terms of the section and the 2005 Rules. The lack of availability of accurate information about time spent in custody on remand has already caused many problems and it is vital that counsel are in a position to give assistance to the court in relation to this important matter. 32. The relevant part of section 174 of the Criminal Justice Act 2003 provides: “ 1) … any court passing sentence on an offender--” (a) must state in open court, in ordinary language and in general terms, its reasons for deciding on the sentence passed, and (b) must explain to the offender in ordinary language— (i) the effect of the sentence” 33. The remainder of section 174 (1) and Section 174 (2) set out further matters, not relevant to the present case. 34. Although section 174 imposed for the first time a statutory requirement that judges should state in open court the reasons for and the effect of their sentences, the requirement to explain the practical effects of the sentence passed was not new. It had been clearly set out in the Practice Direction (Criminal Proceedings: Consolidation) [2002] 1 WLR 2870 . The Practice Direction recognised that the complex statutory provisions governing custodial sentences were not widely understood by the general public. It emphasised the need, when a sentence is passed, for its practical effects to be clearly understood by the defendant, any victim and any member of the public who is present in court or reads a full report of the proceedings. In order to achieve this, judges were directed that, whenever they imposed a custodial sentence, they should explain clearly and accurately the effect of that sentence which should include provisions governing release and licence. Section 174 gave statutory effect to the requirement contained in the Practice Direction. 35. In the present case, the learned judge said nothing in his sentencing remarks about how long the appellant would serve in prison, or about the period for which he would be on licence thereafter. Had the judge done so, the fact that he had elected not to make a direction under section 240 (3) would have become clear and defence counsel would have had the opportunity, even at that late stage, of addressing him on that point. If the judge had remained of the view that it was just not to make a direction, the appellant and counsel would have clearly understood the position and the confusion that subsequently arose would not have occurred. 36. We would respectfully remind judges of the requirements of section 174 and of the importance of explaining in clear and unambiguous terms the effects of a custodial sentence, including the length of time that the offender will serve in custody and the length of time for which he will remain on licence after his release. Furthermore, we would remind counsel of their obligation to remind the court, where necessary, of the requirements of section 174 . 37. We turn now to consider the sentence imposed by the judge. Mr Crook does not seek to suggest that the total sentence of nine months passed for the two offences was in itself excessive. However, he submits that, if the judge did indeed intend that the time spent in custody should not count towards the appellant’s sentence, then the sentence was manifestly excessive, representing as it did a total effective sentence of 20 months’ imprisonment. In particular, he says that insufficient account was taken of the totality of the offending against the appellant’s mother and of the fact that the appellant had served a previous sentence of three months’ imprisonment for the earlier assault upon her. He further submits that the judge failed to take into account the appellant’s guilty pleas for which, in the circumstances, he should have been given a discount of one third. 38. The appellant had committed a series of offences against his mother and a former partner and had been undeterred by the previous non-custodial sentences imposed upon him. The offences of assault and criminal damage for which he fell to be sentenced were committed while on bail for an offence of assault on the same victim and in breach of a bail condition designed to protect her. They were also committed while the appellant was the subject of community rehabilitation orders imposed in connection with offences against his former partner. It would have been open to the sentencing judge to revoke those orders and to sentence the appellant for the offences in respect of which the orders had been imposed. In the event, he did not do so. Taking all these matters into account, we consider that the judge would have been fully entitled to impose a sentence for the assault occasioning actual bodily harm which was significantly in excess of the six months in fact imposed. It was probably with that in mind that the judge decided that the period spent in custody on remand should not count towards the sentence to be served. Nevertheless, we consider that an effective total sentence of 20 months, allowing full credit for the appellant’s guilty pleas, was manifestly excessive. 39. In all the circumstances, we have decided to allow the appellant’s appeal to the extent of ordering that the period spent in custody on remand in connection with the robbery should count as time served by the appellant as part of the sentence totalling nine months’ imprisonment imposed by the judge. The effect of that order is to permit the appellant’s immediate release. 40. That leaves the issue of licence. It has not been argued that the licence period should run other than from the date when the appellant was sentenced. Thus, he will remain on licence for a period equivalent to one-half of the sentence of nine months’ imprisonment imposed by the judge, i.e. four and a half months from 7 th December 2005. 41. It was for these reasons and on that basis that the court allowed the appeal at the conclusion of the hearing.

2006_02_17-728.xml

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[2014] EWCA Crim 618

EWCA_Crim_618

2014-04-02

crown_court

Neutral Citation Number: [2014] EWCA Crim 618 Case No: 201302148C3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WOOD GREEN His Honour Judge Carr T20127322/T20130119 Royal Courts of Justice Strand, London, WC2A 2LL Date: 02/04/2014 Before : THE PRESIDENT OF THE QUEEN’S BENCH DIVISION (SIR BRIAN LEVESON) MR JUSTICE KEITH and MRS JUSTICE LANG DBE - - - - - - - - - - - - - - - - - - - - - Between : CHRISTOPHER DAVID TAYLOR Appellant - and - THE QUEEN Respondent - - -

Neutral Citation Number: [2014] EWCA Crim 618 Case No: 201302148C3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WOOD GREEN His Honour Judge Carr T20127322/T20130119 Royal Courts of Justice Strand, London, WC2A 2LL Date: 02/04/2014 Before : THE PRESIDENT OF THE QUEEN’S BENCH DIVISION (SIR BRIAN LEVESON) MR JUSTICE KEITH and MRS JUSTICE LANG DBE - - - - - - - - - - - - - - - - - - - - - Between : CHRISTOPHER DAVID TAYLOR Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Miss Abigail Bache for the Appellant Mr Scott Brady for the Crown Hearing date : 19 March 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Sir Brian Leveson P: 1. On 25 January 2013, in the Crown Court at Wood Green before His Honour Judge Carr and a jury, the appellant was convicted (by a majority of 10:2) of two counts of sexual assault; he was acquitted of two further counts of sexual assault and rape. On 5 February 2013 (before the same Court), he pleaded guilty to possession of extreme pornographic images and on 8 March was sentenced to 12 months and 3 years imprisonment respectively for the two counts of sexual assault (to run concurrently) and a consecutive term of 4 months for the possession offence making 3 years 4 months imprisonment in all. Appropriate ancillary orders were made. With leave of the single judge, he appealed against conviction in relation to the first two offences and sentence. Having heard the appeals, we dismissed both: we now provide our reasons. 2. The facts can be summarised comparatively shortly. The appellant is the uncle of the complainant C being married to her aunt. When C was aged 12 years, during a sleepover, she made an allegation to her friend, V, that the appellant had sexually abused her when she had been aged 8 or 9 years. V told a mutual friend, CF, whereupon the two friends reported the allegation to their school. On 2 March 2012, C gave a full ABE interview to police setting out the allegations. 3. In short, the prosecution alleged that the appellant sexually assaulted the complainant when she was aged 8 or 9 years, whilst he was in her bedroom helping her to decorate it, by placing his hand on her thigh and keeping it there (Count 1 of which he was convicted). C did not make a complaint at that stage and it was alleged that, when she was sleeping at her aunt’s house, the appellant would try to remove her underwear, while she was sleeping and awake, including when she was sleeping between her aunt and the appellant (Counts 2 and 3 of which he was acquitted). On one occasion, however, at night, when C was sleeping alone, he then went to her bed, undressed them both and vaginally raped her (Count 4). The indictment included an alternative of sexual assault in respect of this complaint (Count 5) and in the event, the appellant was acquitted of rape but convicted of sexual assault. 4. In addition to C’s evidence, the prosecution relied on the obvious distress she was in when the allegations were made and/or repeated (as they were to her mother, the school and the police), including in evidence, to show evidence of recent complaint and in support of her credibility. It was suggested that her credibility was further enhanced because she candidly admitted that she could not remember the detail of all the offences/or embellish her allegations including her admission that she did not see the appellant pull her knickers down on one of the occasions. 5. C was also supported by evidence from her aunt, to the effect that there had been a single occasion when, because of an argument between the aunt and the appellant, C slept in a room on her own. Finally, the prosecution further relied on the cross-admissibility of the counts to show that the appellant had a sexual interest in C to prove one of the counts of sexual assault (the removal of the complainant’s underwear while she was asleep). 6. The defence case, on the other hand, was that the allegations were fabricated and that the appellant had never indecently assaulted C. He denied ever going to her bedroom at night or doing anything inappropriate or ever being alone with her. He gave evidence in his own defence which was consistent with his police interview to like effect and he relied on his previous good character. The defence also pointed to the weaknesses in C’s evidence (including her other admitted lie and extraordinary allegation made to her friend V that the applicant had also kidnapped her when she was two, put her in the boot of his car and driven her to Scotland) and to the lack of any DNA or other medical evidence to support the allegations. 7. The issues for the jury, therefore, were straightforward and depended on a resolution of an acute conflict of evidence between C and the appellant. Could the jury be sure, first, that each or any of the assaults had happened as C alleged and, second, that (as C alleged) actual penetration had taken place in the C’s bed. 8. As part of the defence, Miss Abigail Bache, for the appellant, sought to introduce evidence from V about what were alleged to be lies told by C about her previous sexual experience, about her having taken the morning after pill, that she had sent pictures of herself while naked to other boys. It was said that these lies were told at the first time the allegation of sexual assault against the appellant were made. Miss Bache also wished to adduce the evidence of CF that C had told her about having had sex with boys (although it was recognised that CF did not understand what was meant by the phrase ‘have sex’) and that CF considered that C would lie to get attention. 9. During a Pre-Trial Review on the working day preceding the trial, the judge intimated that he did not consider that the evidence of both V and CF was admissible on the basis that it was either bad character or irrelevant. As a result there was detailed argument which involved a consideration of s. 41 of the Youth Justice and Criminal Justice Act 1999 (“the 1999 Act”) and of s. 100 of the Criminal Justice Act 2003 (“the 2003 Act”). 10. Essentially, Miss Bache argued that the evidence was admissible not as evidence of prior sexual conduct, because she did not seek to rely on it as truthful (C having said in her ABE interview that there were rumours of her sexual activity with boys going round the school which were untrue) but because it was dishonest attention seeking. She recognised that the foundation of the argument was what might otherwise be embellishment and bragging between 12 year old girls (or tittle tattle) but argued that it involved lies about intimate matters coming at the time of the complaint about her uncle and could serve as a diversion from scepticism that she may have been facing from her friends. The 1999 Act, therefore, was not engaged, although s. 100(1)(c) of the 2003 Act was. 11. Judge Carr ruled that although, essentially, Miss Bache was pursuing a bad character application, out of an excess of caution he would also treat it as an application under s. 41 of the 1999 Act, particularly given the age of the young witnesses. He considered, however, that there was no evidence that the complainant had lied about being sexually active and that, in any event, the girls may have been discussing low level sexual contact and not sexual intercourse. He concluded that the girls’ discussions about prior sexual activity of unknown origin and truth could not impact upon whether C had lied about the specific allegations of sexual abuse made against the appellant. 12. The judge went on to consider that even if the allegations were true, it would not assist the appellant’s defence and would not be permissible under s. 41: C had received sex education but the term “sex” was used by the girls as a very general term. He did, however, admit the reference to C saying that she had also been kidnapped by an uncle, made at the same time as the allegations against the appellant. This, he said, would allow the defence to make the same points regarding her credibility. 13. During the course of the evidence, C’s ABE interview had not been edited and, in it, she had accepted that there had been rumours about her having sex with boys but that they were untrue. He spoke of the evidence as “based on rumour and innuendo conducted amongst 12 year olds at school” and declined to revisit his ruling: it was impossible to extract it or stop and start the tape without giving rise to greater prejudice to the appellant and, as a single comment in a long interview “was best left as was”. Further, looking at all the statements, he considered it far from clear that the use by the girls of the word ‘sex’ meant vaginal intercourse, V and CF defining sex in a way that did not include penetrative vaginal sex. He dealt specifically with the allegation of the use of morning after pill and observed that, on its own, he would not have found it of substantial probative value on a substantially important issue. 14. This ruling forms the basis of the main plank on which this appeal is based. Miss Bache argues forcefully and with skill that the judge should have permitted cross examination of C so as to expose the fact that contemporaneous with the complaint about the appellant, she had also made false assertions about having had sex with lots of boys. Although Judge Carr had said that there was no evidence that these stories were untrue, in fact, her ABE transcript identified that there had been rumours about her at school about her having had sex with loads of boys and having taken the morning after pill and, when asked if the rumours were true, stated that they were not. Relying on R v. V [2006] EWCA Crim 1901 , referring to R v BT & MH [2002] 1 Cr App R 294 , she pointed to the observation (at para 21) that “cross examination genuinely directed towards establishing that the complainant has made a previous false complaint about a sexual matter is outside s. 41, if it goes to the lies rather than to the sexual behaviour itself”. 15. Mr Scott Brady for the Crown makes the point that the denial of the truth of the rumours is the only point on which the appellant can rely: she was not asked in that interview whether she had told her friends about any sexual experience, what she had told them or whether precisely what she had told them was untrue. He argues that conversations between young pre-teenage girls about sex in which one of them either lied or exaggerated are of little probative value and certainly not of substantial probative value in relation to the question whether she might be lying about the conduct of her uncle. Although it was not right to say that there was no evidence that what she had said to her friends was untrue (because of the answer in the ABE interview), that evidence was of very limited value and insufficient to have substantial probative value in relation to a matter which is of substantial importance. 16. It is unnecessary to recite s. 100(1)(b) of the 2003 Act but sufficient to note that, as Professor J. R. Spencer has observed in his work “Evidence of Bad Character”, that the purpose of the provision was to remove from the criminal trial the right to introduce by cross examination old, or irrelevant, or trivial behaviour in an attempt unfairly to diminish in the eyes of the tribunal of fact the standing of the witness. As Pitchford LJ observed in R v Brewster & Cromwell [2010] EWCA Crim 1194 , (2010) 2 Cr. App. R. 20 (at para. 22): “It seems to us that the judge’s task will be to evaluate the evidence of bad character which it is proposed to admit for the purpose of deciding whether it is reasonably capable of assisting a fair minded jury to reach a view whether the witness’s evidence is, or is not, worthy of belief. Only then can it properly be said that the evidence is of substantial probative value on the issue of creditworthiness.” 17. It is of the first importance to consider the context and to underline the age of C and her friends (one of whom demonstrated that she had no real understanding of what sexual intercourse was) and to exercise particular care when considering whether the evidence did, in fact, have substantial probative value. This is not a case of a false complaint about a sexual matter: there is no suggestion either in what C said to her friends or in the rumours that she was ever complaining about the activities of anyone else other than the appellant. Further, precisely what, if any, sexual experience that C might have had could never be an appropriate area of investigation (which is likely to have been the effect of permitting this line of cross examination bearing in mind the extremely generalised nature of the available evidence of lack of truthfulness). In our judgment, the judge was fully entitled to reach the conclusion that this material did not satisfy the test and should not be admitted. This ground of appeal therefore failed. 18. The trial then proceeded to its conclusion and the second ground of appeal (which Miss Bache accepted was of less cogency although she argued that it was sufficient to undermine the safety of the conviction) concerned the way in which the judge summed up the case. In short, she submits that although the judge had made it clear that the facts were for the jury and that any view which he appeared to suggest should be ignored if the jury disagreed with it, he had suggested reasons why, because of her age and lapse of time, C might not have been able to provide detail or be confused without ever putting the defence contention that these features might be a consequence of the fact that she was not telling the truth. It is also argued that he did not remind them of the salient points of the defence case. 19. There is no doubt that the judge devoted more time to the evidence of C than to that of the appellant but given that his defence was straightforward (it did not happen and C is not telling the truth), it is not surprising that he focussed on that question. In that regard, he reminded the jury that she had admitted lying about the kidnap. He certainly reminded them of the appellant’s evidence making it clear that he said that nothing had occurred between C and him that was open to misunderstanding or misinterpretation: “her evidence was an out and out lie”. 20. Although the judge was bound fairly to reflect the evidence in the case, the trial was not, of course, limited to the summing up. The jury had heard the evidence and heard speeches from both Mr Brady for the Crown and Miss Bache for the defence putting their respective contentions. It is beyond doubt that the jury fully understood the issues in the case and the nature of the conflict between C and the appellant: indeed, they acquitted the appellant entirely in relation to two of the allegations that he faced and convicted of the alternative offence of sexual assault, acquitting him of the more serious count of rape. We do not accept that the approach of the judge in his summing up undermined the safety of these convictions and, for these reasons, the appeal against conviction failed. 21. In those circumstances, we turned to sentence. The appellant was aged 30 at the time of conviction and of previous good character. In a pre-sentence report, he continued emphatically to deny the allegations and expressed anger at the system that had led to his conviction. He was assessed as presenting as potentially a medium to high risk of sexual harm to children although the likelihood of his reoffending was considered to be as low. 22. The judge expressed himself satisfied on the evidence that the sexual touching of C’s thigh at the age of 8-9 years old was a test by the appellant to determine whether she would make a complaint and was not so sexual with the result that the appellant could explain it by an innocent misinterpretation whilst decorating. Following her failure to complain, the second more serious assault then occurred and did so when the complainant was in bed alone. They were both undressed and the judge considered it to be beyond credibility that the appellant’s genitals had not contacted with C, although penetration was not established, the jury having acquitted of rape. 23. The Judge placed the offending in the second category of offences and took into account the appellant’s lack of remorse and victim empathy, his impeccable good character (save for the possession of extreme pornographic images). It was in those circumstances that the total sentence of 3 years imprisonment was imposed along with a consecutive term of 4 months imprisonment for the possession of the extreme pornography offence (of which there was a significant amount). No complaint is made of this additional sentence. 24. Pursuing the appeal against sentence, Miss Bache argues that the Judge sentenced the appellant on an incorrect factual basis, there being no justification for the inference that he drew of genital contact, the jury having acquitted of rape: she had complained of the latter offence in the clearest terms which left no room for genital conduct short of rape. As a result, the offence should have been considered within a lower category within the guideline issued by the Sentencing Guidelines Council so as to merit no more than a term of 6 months imprisonment. She also argued that the 12 month concurrent sentence for the initial offence was manifestly excessive for what was a relatively modest assault. 25. We do not agree. The judge was clearly not entitled to pass sentence on the basis of penetrative sexual activity (which would have constituted the offence of rape) but he did not do so. To say that he was bound to adopt the most favourable construction of the case is to ignore his responsibility to have regard to all the evidence that he had heard and himself to form a view of the extent of the criminality consistent with the verdicts of the jury and that evidence. In our judgment, that is exactly what the judge did and, having heard the evidence both of C and evaluated it himself, he was entitled to do so. The sentence of three years imprisonment fell well within the bracket identified by the Sentencing Guidelines Council: this appeal was therefore also dismissed. 26. The clerical error in the record as regards the prevention order should be corrected.

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[2012] EWCA Crim 414

EWCA_Crim_414

2012-02-29

crown_court

Neutral Citation Number: [2012] EWCA Crim 414 Case No. 2011/05982/C5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Wednesday 29 February 2012 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MRS JUSTICE MACUR DBE and MR JUSTICE SAUNDERS __________________ R E G I N A - v - B __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 T

Neutral Citation Number: [2012] EWCA Crim 414 Case No. 2011/05982/C5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Wednesday 29 February 2012 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MRS JUSTICE MACUR DBE and MR JUSTICE SAUNDERS __________________ R E G I N A - v - B __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telephone No: 020 7404 1400; Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) __________________ Miss A Levitt QC and Miss C Moore appeared on behalf of the Applicant Mr K Coonan QC and Mr J Leonard appeared on behalf of the Respondent ____________________ Judgment THE LORD CHIEF JUSTICE: 1. The trial of the offences involving the victim began on 16 June 1999. At the outset it was submitted to the trial judge that the proceedings should be stayed on the basis that they constituted an abuse of process; or, alternatively, that the evidence of the DNA match should be excluded in accordance with the discretionary provisions in section 78 of the Police and Criminal Evidence Act 1984 (" the 1984 Act "). The judge acceded to this submission and held that the evidence relating to the DNA match should be excluded. He based his conclusion on the structure of sections 61 to 65 of the 1984 Act which created an "exhaustive" code for the taking, use and retention of such samples. As these provisions had not been complied with, the Crown should not be permitted to use the material. The judge went further and added that if he were wrong in his conclusion based on the construction of the statute, the evidence would also have been excluded under section 78 . It is not entirely clear from his ruling whether he found that the events he summarised amounted to an abuse of process or that it simply constituted a decision that the evidence sought to be relied on by the Crown should not be admitted. In any event, however, as his ruling meant that the evidence of the DNA match was excluded from consideration by the jury at the trial, the prosecution were left with no alternative but to offer no evidence. As the judge had said, on the basis of his ruling "the matter" could not "go forward". This was what would now be described as a terminating ruling. 2. In 1999, however, it was not open to the prosecution to appeal against such a ruling. The step available was to challenge the ruling on a point of law by way of a Reference by the Attorney General under section 36 of the Criminal Justice Act 1972 . This was done. In May 2000 the Court of Appeal upheld the judge's ruling but referred to the House of Lords the question of the proper construction of sections 61 to 65 of the 1984 Act , and in particular section 64 (3B). In December 2000, in Attorney General's Reference No 3 of 1999 [2001] 1 Cr App R 34 , the House of Lords concluded that the decision of the trial judge was wrong and that the statute did not provide that evidence obtained in consequence of a breach of the statutory provisions in the 1984 Act was inadmissible. Neither the Court of Appeal nor the House of Lords was invited to consider the exercise of the judge's discretion to exclude the evidence under section 78 . Nevertheless, the speeches in the House of Lords give the clearest possible indication that, if that question had been addressed, the decision of the trial judge on that issue, too, would have been found to have been mistaken. Notwithstanding the unequivocal ruling that the DNA evidence would have been admissible as a matter of law, and the intimation that the exercise of the discretion under section 78 was, at the very least, open to serious question, as the law then stood, this case was at an end. The opinion of the House of Lords in relation to sections 61 to 65 of the 1984 Act would be of importance in cases then current and subsequent cases, but not in this case. 3. This application requires the court to be satisfied that there is, in accordance with section 78 of the 2003 Act, "new and compelling evidence" against the acquitted person. 4. Section 78 , so far as is relevant, provides: "(2) Evidence is new if it was not adduced in the proceedings in which the person was acquitted .... (3) Evidence is compelling if -- (a) it is reliable, (b) it is substantial, and (c) in the context of the outstanding issues, it appears highly probative of the case against the acquitted person. .... (5) For the purposes of this section, it is irrelevant whether any evidence would have been admissible in earlier proceedings against the acquitted person." 5. The DNA evidence (using the phrase compendiously to cover all the evidence relating to the DNA samples and the circumstances in which they were obtained and retained) appears to be reliable, substantial and highly probative. Indeed, on the face of it, it is plainly compelling evidence. Although reserving the respondent's position in the event of any order for a retrial, no issue has been taken in argument before us on this aspect of the case. 6. The essential argument deployed in writing on behalf of the respondent was that the evidence now under consideration cannot be described as "new" in the context of and for the purposes of section 78(2) . It is contended that it was "adduced" in the earlier proceedings when it formed the basis of the trial judge's ruling. The ruling that the evidence should not be admitted before the jury did not mean that it was not adduced in the proceedings. The argument is developed on the basis that the application by the prosecutor in truth constitutes an appeal against the terminating ruling in 1999, at a date when no such proceeding was available or permitted. In essence, the written submission invited us to consider that section 78(2) was not intended to constitute a process of appeal against a trial judge's ruling and, more significantly, that it was not intended by Parliament to apply to evidence available at trial but ruled inadmissible. 7. In our preparation for the hearing we examined these submissions. Subject to any oral argument which might be advanced at the hearing, we reached a clear conclusion. We have now heard oral argument. The way in which Mr Coonan developed it means that, in effect, he has withdrawn his submission, for good reason. Our conclusion is unchanged. 8. For the purposes of sections 75 to 79 of the Criminal Justice Act 2003 the word "proceedings" is not defined or explained. Reading these sections as a whole within their own context, it is clear that the word "proceedings" is designed to cover the entire process which resulted in the original acquittal. However, as a matter of statutory construction it does not follow that all evidence which was available to be deployed in the earlier proceedings must fall outside the ambit of the "new" evidence provision on which section 76 applications must, whether in whole or in part, be based. Subject to the interests of justice requirement found in section 79, evidence which was available to be used, but which was not used, may be "new" evidence for the purposes of section 78(2) . This provides the context in which to reflect that section 78(2) is concerned with evidence -- that is admissible evidence capable of being deployed against a defendant in accordance with the rules of admissibility. 9. Evidence sought to be advanced by the Crown at the original trial was undoubtedly available to be considered by the trial judge when he was asked to decide whether the evidence could or could not be adduced in, or should be or should not be excluded from, the evidence to be placed before the jury. Without considering it, he could not provide a proper ruling on the question. However, once the judge ruled that it should not be admitted at the respondent's trial, notwithstanding that it was available for his consideration, and indeed that he considered it, it was not, in our judgment, "adduced" in the proceedings. 10. In the present case the judge ruled (wrongly, as the House of Lords found) that crucial admissible evidence should not be admitted. His ruling was wrong. As a result this crucial evidence was not, and could not be, adduced by the Crown in the proceedings against the respondent. In our judgment, the evidence excluded by the judge constitutes new evidence for the purposes of section 78(2) on the basis that it was never adduced in or brought forward for consideration as admissible evidence at the original trial. For present purposes, therefore, all the DNA evidence, whether available at trial or emerging from further investigation of the relevant material, constitutes new evidence. 11. Since preparing his written submissions, Mr Coonan has reconsidered his submissions. His researches took him to the Parliamentary debates on the issues. We are grateful to him for drawing them to our attention. From these debates it is clear that the language of clause 65(2) of the original Bill (the predecessor to section 78(2) of the Act to the effect that where at the original trial evidence was available in the broad sense, it should not be treated as new evidence) was deliberately amended to the current position that whether or not it was available, it is new evidence if it was not adduced in the proceedings. 12. The contents of the debate are entirely consistent with our interpretation of the statutory provision. Accordingly, the mere fact that evidence was available at the original trial does not mean that it was adduced in those proceedings. _____________________________

2012_02_29-2941.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/414/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/414

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[2008] EWCA Crim 970

EWCA_Crim_970

2008-05-02

supreme_court

Neutral Citation Number: [2008] EWCA Crim 970 Case Nos: 200700129C4 200700130C4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT READING HIS HONOUR JUDGE RISIUS Royal Courts of Justice Strand, London, WC2A 2LL Date: 02/05/2008 Before : LORD JUSTICE GAGE MR JUSTICE HEDLEY and SIR CHRISTOPHER HOLLAND - - - - - - - - - - - - - - - - - - - - - REGINA V KRIS RONALD FLYNN and JOE PHILIP ST JOHN 1 st and 2 nd Appellants - - - - - - - - - - - - - -

Neutral Citation Number: [2008] EWCA Crim 970 Case Nos: 200700129C4 200700130C4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT READING HIS HONOUR JUDGE RISIUS Royal Courts of Justice Strand, London, WC2A 2LL Date: 02/05/2008 Before : LORD JUSTICE GAGE MR JUSTICE HEDLEY and SIR CHRISTOPHER HOLLAND - - - - - - - - - - - - - - - - - - - - - REGINA V KRIS RONALD FLYNN and JOE PHILIP ST JOHN 1 st and 2 nd Appellants - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 190 Fleet Street, London EC4A 2AG Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr Stephen Batten QC and Mr Nicholas Yeo (instructed by Hughmans, Solicitors) for the Appellant Flynn Mr Richard Griffiths (instructed by Swain, Solicitors) for the Appellant St John Mr Neil Patrick Moore (instructed by the Crown Prosecution Service ) for the Respondent Hearing date : 10 April 2008 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Gage : 1. On 7 December 2006 at Reading Crown Court the appellants, Kris Flynn and Joe Phillip St John, were convicted of conspiracy to commit robbery. On 8 December 2006 each was sentenced to 13 years’ imprisonment less the appropriate days spent on remand. There were two other co-accused. Mark Bannister pleaded guilty and was sentenced to 12 years’ imprisonment. On 4 December the full court quashed his sentence and substituted for it a sentence of 10 years’ imprisonment. Frank Sines was acquitted of conspiracy and discharged. The appellants appeal with leave of the full court. 2. These appeals raise issues relating to identification by voice recognition. The evidence was as follows. On 29 April 2006 at about 7.50 am, Samia Taourit, an employee of Elonex Computers plc, arrived for work at the company premises situated at Cricklewood, London. The company acted as a distribution warehouse for IBM computers and stored on its premises expensive computer equipment. The premises had in the past been a target for criminal activity as a result of which a strong room had been placed on the premises as a security measure. The evidence 3. Mr Taourit was the first employee to arrive at the premises on that day. He unlocked the main gates to the premises and drove his car into the car park. As he was walking into the main building he noticed a white Mercedes Sprinter van which had driven through the open gates. Believing the driver to be lost, Mr Taourit approached the van and spoke to the passenger. A number of hooded masked men then jumped out of the rear of the van and pushed a double-barrelled shotgun into Mr Taourit’s stomach. He was pushed into the premises and told to de-activate the alarm. This he did in order to prevent the robbers harming him. All of the men were wearing masks or balaclavas and some had crowbars with them. The robbers took personal documents from Mr Taourit before taking him to a reception room where his feet and hands were bound with red parcel tape and cable ties. 4. At some point during the course of the robbery, the robbers panicked on hearing a noise outside. They left the premises, having been unable to penetrate the steel walls of the strong room. In fact the strong room contained approximately £10,000 worth of computer chips. After the robbers had left in the white van Mr Taourit was found by colleagues in a very distressed condition. It was not in dispute that between 19 March 2006 and 29 April 2006 there existed a criminal conspiracy to rob Elonex Computers plc. The issue for the jury was whether or not these two appellants were parties to the conspiracy. 5. In support of its case against each of these two appellants the prosecution relied on evidence of a number of circumstantial facts, together with some forensic evidence. In addition, the prosecution relied upon evidence of police officers who purported to recognise the voice of each appellant taken from recordings of conversations covertly obtained from a microphone in the Sprinter van just before it entered the premises. 6. The van used in the attempted robbery had been stolen on 20 March 2006. On 29 March 2006 it was seen parked at an address in Slough bearing registration plates with the number VN04WFW. These registration plates were false, since that registration number belonged to another Sprinter van owned by a different company which was at the time locked up in the owner’s compound. Whilst the van was being watched on 29 March the appellant, Flynn, and the co-accused, Sines, arrived in a silver Subaru which belonged to Flynn. They went into the premises where the van was. In the following days before 28 April 2006 covert surveillance cameras tracked the Sprinter van in different locations and recorded visits to it by Flynn and other men. On 28 April 2006, the night before the attempted robbery, the Sprinter van was moved by Bannister and Flynn to Heron Close in Ascot, close to Flynn’s father’s home. At some stage before 29 April 2006 police officers fitted a secret listening and transmitting device in the van. On 29 April at 05.10am, Flynn and Sines appeared together and were seen to spend three or four minutes with the bonnet of the van open. They were apparently using jump leads to start it. Flynn was wearing gloves; Sines was not. The van then was then driven out of view. The van was next seen by Mr Towritt when it entered the premises of Elonex Computers plc. 7. Following the aborted robbery the van was seen by police officers to leave the premises. It and an accompanying Volkwagen Golf motor vehicle, with two people in the front, both wearing balaclava helmets, were followed by police vehicles. Although police were unable to follow the Sprinter van and Volkswagen Golf to their ultimate destinations, the Sprinter van was subsequently located and removed for forensic examination. This examination revealed fingerprints attributable to both of the appellants. 8. In addition to the above evidence, the prosecution relied on voice recognition evidence given by four police officers. Their evidence was to the effect that they recognised the voices of Flynn and St John on the covert recording of voices in the sixty minutes before the Sprinter van entered the premises at Cricklewood. The evidence of the police officers was that, having spoken to the two appellants during and after their arrest, they were able to recognise their voices on the recording captured by the covert recording device. The officers had also obtained covertly a sample of each of the appellants’ voices in conversations at the police station. Further, the jury had before them two transcripts of the recording taken from the van. One was produced by one of the police officers and the other by Dr Frederika Holmes, an independent forensic consultant. The latter had been instructed on behalf of the prosecution. At trial, counsel on behalf of both appellants objected to the introduction of the voice recognition evidence and the transcripts. The judge ruled both the evidence of the police officers and the transcripts admissible. 9. Shortly after the discovery of the Sprinter van Flynn was arrested. At interview he replied “No comment” to all questions asked of him. St. John left the United Kingdom on 11 May to get married abroad and returned on 26 May 2006. On that date he was arrested. He was interviewed twice on the same day but answered “No comment” to all questions put to him. 10. Each of the appellants gave evidence. Both denied taking part in the conspiracy. Flynn said that he had been helping Bannister to repair a Sprinter van because it had starting problems. He did not dispute the forensic evidence connecting him with the van. He denied that his voice was on the covert recording taken from the van. 11. St John said that he had spent the weekend during which the robbery occurred with his family. Both appellants relied on the evidence of first Dr Frederika Holmes and second, Professor John French, a speech recognition expert, in support of their case that it was not possible to recognise the voice of either of them on the covert listening recording. Much of Professor French’s evidence was distilled into written admissions which were placed before the jury. The grounds of appeal 12. There are two grounds of appeal. They are common to both appellants. First, the judge’s decision to admit the voice recognition evidence of the four police officers in evidence is challenged. Secondly, it is submitted that the judge failed to give an appropriate direction in relation to this evidence. Before we turn to these grounds of appeal we must make some general comments about the background to voice recognition evidence. Voice recognition evidence generally 13. There can be no doubt that the admission of voice recognition evidence is controversial, perhaps highly controversial. In this appeal we are concerned with two categories of such evidence. They are the agreed evidence given by two experts in voice identification and the evidence of the four police officers. 14. The first category, expert evidence, in this field can be of two types: firstly, auditory analysis and secondly acoustic/spectrographic analysis. The second category of evidence falls into a group described by the experts in this case as lay listener evidence. The latter requires that the witness possesses some special knowledge of the suspect that enables him or her to recognise the suspect’s voice. The most common example of such evidence is the knowledge of a close relative or friend. However, there are other persons who may acquire sufficient special knowledge by their familiarity with the suspect’s voice. For example, a person may acquire such familiarity by the frequency of his or her contact with the suspect. A yet further group may comprise those who acquire specialist knowledge by listening to a sample of the speech of a known person and comparing it with a recording of a disputed voice. The latter are referred to in some judgments and academic papers on this topic as ad hoc experts. In our opinion, this description is unhelpful, since those who acquire the specialist knowledge cannot in our view properly be referred to as experts. 15. In this case there was before the judge and jury some general expert evidence and rather more before us. At the outset of the appeal we heard unsworn evidence from Dr Frederika Holmes. Strictly, this evidence was not fresh evidence since it was available to both sides at trial. Dr Holmes had been instructed by the prosecution. She did not give oral evidence at the trial but, as we have already said, her evidence, in the form of witness statements, was read to the jury. Her evidence at the hearing of the appeal was taken, without objection from the prosecution, and heard by us de bene esse . Dr Holmes expanded and clarified her written evidence which was before the judge and jury. We also have, as had the jury, expert evidence in the form of a report and the written admissions from Professor French. 16. In general terms the expert evidence before us demonstrates the following: (1) Identification of a suspect by voice recognition is more difficult than visual identification. (2) Identification by voice recognition is likely to be more reliable when carried out by experts using acoustic and spectrographic techniques as well as sophisticated auditory techniques, than lay listener identification. (3) The ability of a lay listener correctly to identify voices is subject to a number of variables. There is at present little research about the effect of variability but the following factors are relevant: (i) the quality of the recording of the disputed voice or voices; ( ii) the gap in time between the listener hearing the known voice and his attempt to recognise the disputed voice; (iii) the ability of the individual lay listener to identify voices in general. Research shows that the ability of an individual to identify voices varies from person to person. (iv) the nature and duration of the speech which is sought to be identified is important. Obviously, some voices are more distinctive than others and the longer the sample of speech the better the prospect of identification. (v) the greater the familiarity of the listener with the known voice the better his or her chance of accurately identifying a disputed voice. However, research shows that a confident recognition by a lay listener of a familiar voice may nevertheless be wrong. One study used telephone speech and involved fourteen people representing three generations of the same family being presented with speech recorded over both mobile and land line telephones. The results showed that some listeners produced mis-identifications, failing to identify family members or asserting some recordings did not represent any member of the family. The study used clear recordings of people speaking directly into the telephone. (4) Dr Holmes states that the crucial difference between a lay listener and expert speech analysis is that the expert is able to draw up an overall profile of the individual’s speech patterns, in which the significance of each parameter is assessed individually, backed up with instrumental analysis and reference research. In contrast, the lay listener’s response is fundamentally opaque. The lay listener cannot know and has no way of explaining, which aspects of the speaker’s speech patterns he is responding to. He also has no way of assessing the significance of individual observed features relative to the overall speech profile. We add, the latter is a difference between visual identification and voice recognition; and the opaque nature of the lay listener’s voice recognitions will make it more difficult to challenge the accuracy of their evidence. The Authorities 17. The admissibility of voice recognition evidence is treated differently in different jurisdictions (see “Sounding Out Expert Voice Identification” by Professor David Ormerod CLR October 2002). We propose to refer only to authorities in our jurisdiction and one decision of the CACD in Northern Ireland. They are R v Robb [1991] 93 Cr.App.R 161 ; R v Clare and Peach [1995] Cr.App.R 333 ; R v O’Doherty [2003] 1 Cr.App.R 5 (NI) and A-G’s Reference [No 2 of 2002] [2003] 1 CAR 21. 18. In Robb , the court held that voice recognition evidence given by a phonetician was admissible as expert evidence; and that evidence of police officers who listened to disputed tapes and recognised the voice of the person speaking was admissible as factual evidence. Bingham LJ (as he then was), giving the judgment of the court, accepted that the phonetician was sufficiently qualified to give expert evidence on voice recognition. He said of the expert, Dr Baldwin: “He was entitled to be regarded as a phonetician well qualified by academic training and practical experience to express an opinion on voice identification. We do not doubt that his judgment, based on close attention to voice quality, voice pitch and the pronunciation of vowels and consonants, would have a value significantly greater than that of the ordinary untutored laymen, as the judgment of a hand-writing expert is superior to that of the man in the street.” 19. Of the police officers’ evidence, the court said that they were entitled to give evidence as witnesses of fact based on their familiarity with the suspect’s voice. Subject to consideration of objections under s.78 of the Police and Criminal Evidence Act 1984 ( PACE ) the evidence was admissible provided the police officers had acquired the relevant familiarity sufficiently to recognise the suspect’s voice. 20. Mr Moore, counsel for the respondent, relies on this decision to support his submission that the evidence of the police officers in the case before us, was admissible as evidence of fact. 21. Clare and Peach is a case on visual recognition. In that case, the court held that a police officer, who had acquired knowledge by many hours spent studying video films of a violent disorder, was entitled to give evidence identifying the appellants in the video films. Giving the judgment of the court, Lord Taylor of Gosforth CJ said: “The phrase ‘expert ad hoc’ seeks to put witnesses like Detective Parsons and PC Fitzpatrick into the traditional category of those qualified to give expert opinion. Whether or not the tag is appropriate, we are clearly of the view that PC Fitzpatrick had ‘special knowledge that the Court did not possess’ … PC Fitzpatrick had acquired the knowledge by lengthy and studious application to material which was itself admissible evidence. To afford the jury the time and facilities to conduct the same research would be utterly impracticable. Accordingly, it was in our judgment legitimate to allow the officer to assist the jury by pointing to what he asserted was happening in the crowded scenes on the film. He was open to cross-examination, and the jury, after proper direction and warnings, were free either to accept or reject his assertions.” 22. The evidence in the instant case is not quite the same. We are told that although a control sample of the appellants’ voices was made, the police officers did not use that for the purpose of identification. Their familiarity with the voices of the appellants was acquired by contact with each of them post arrest. 23. In O’Doherty the court ruled that evidence of an expert using auditory techniques was inadmissible. The court went so far as to rule that save for three exceptions no prosecution should be brought in Northern Ireland based on voice identification given by an expert which was solely confined to auditory analysis. The court ruled that to be admissible such evidence must be supported by acoustic analysis. The three exceptions are first, where the voices of a known group were being listened to and the issue was which voice had spoken which words; secondly, where there were rare characteristics which rendered a speaker identifiable; or thirdly, where the issue related to the accent or dialect of the speaker. 24. The court went on to deal with evidence of voice recognition given by a police officer. One of the experts who had given evidence to the court had said that identifications made by police officers were, in his opinion, “highly problematic”. He continued, “auditory identification of speakers known to untrained listeners, contrary to popular belief, yields high error rates even under ideal listening conditions”. Dr Holmes echoed this observation in her evidence to us. 25. In A-G’s Ref (No.2 of 2002) the court considered again the issue of admissibility of identification evidence given by a police officer who had spent much time studying video films before identifying the defendant. The court outlined four circumstances in which such evidence might be admissible. Giving the judgment of the court, Rose LJ said: “In our judgment, on the authorities, there are, as it seems to us at least four circumstances in which, subject to the judicial discretion to exclude, evidence is admissible to show and, subject to appropriate directions in the summing up, a jury can be invited to conclude that the defendant committed the offence on the basis of photographic image from the scene of the crime: (i) where the photographic image is sufficiently clear, the jury can compare it with the defendants sitting in the dock …; (ii) where a witness knows the defendant sufficiently well to recognise him as the offender depicted in the photographic image, he can give evidence of this …; (iii) where a witness who does not know the defendant spends substantial time viewing and analysing photographic images from the scene, thereby acquiring special knowledge which the jury does not have, he can give evidence of identification based on a comparison between those images and a reasonably contemporary photograph of the defendant, provided that the images and the photograph are available for the jury …; (iv) a suitably qualified expert with facial mapping skills can give opinion evidence of identification based on comparison between images from the scene, (whether expertly enhanced or not) and a reasonably contemporary photograph of the defendant, provided the images and the photograph are available to the jury …” 26. Mr Moore submits that this approach should be adopted by the court when dealing with identification by voice recognition. He submits that the evidence of the police officers in this case was admissible under the second circumstance above, and possibly the third as well. 27. Although A-G’s Ref (No.2 of 2002) was concerned with visual identification, in our judgment it has some application to the issues in relation to voice identification. We accept Mr Moore’s submission that the evidence of police officers in the circumstances of the instant case is evidence of fact. It would seem from O’Doherty that in Northern Ireland voice recognition evidence by a lay listener in the circumstances existing in this case would almost certainly be ruled inadmissible. Ground 1 The Judge’s decision: 28. There were three issues which the judge had to determine in respect of the voices recorded on the covert device in the Sprinter van. The first two issues are not the subject of any ground of appeal. The third issue was the question of whether or not the voice recognition evidence of the four police officers was admissible. 29. The judge had before him the witness statements and reports of Dr Holmes and Professor French. He also heard evidence from the four police officers on a voir dire. That evidence has been helpfully put before us in the form of agreed facts. We summarise this evidence in respect of each appellant separately. 30. So far as Flynn is concerned, he was seen by DC Gittings on 29 April 2006 on two occasions. First he was seen in the cells following his arrest when his clothing was seized and swabs taken from his hands. This operation lasted 30 minutes. Later on the same morning he was interviewed by DC Gittings, during the course of which he answered “no comment” to all questions asked of him. The interview lasted approximately ll minutes. On the following day Flynn was interviewed a second time by DC Gittings and DC Fleck. The interview lasted 55 minutes. Again, he answered “no comment” to all questions asked of him. The same day he was seen by DC Gittings and DC Fleck, either together or separately, on four short visits. 31. DC Fleck listened to the covert recording from the Sprinter van on 9 May 2006. It was on that occasion that he claimed to recognise Flynn’s voice. He said that on that occasion he had in his possession the transcript prepared by DC Gittings. DC Gittings listened to the covert recording on 18 May 2006. His evidence was that it was on that occasion that he made the transcript which DC Fleck said he had in his possession on 9 May. DC Gittings said on that occasion he annotated that transcript with the name Flynn against the passages which he identified as being Flynn’s voice. His evidence was that this was the only transcript made by him. It is an agreed fact that there was only one transcript made and that was the transcript prepared by DC Gittings. DC Flynn said that the transcript which he had in his possession, when he listened to the covert recording, had no annotations on it. On 8 June each of these two officers made witness statements. 32. Turning to St John, DC Nicoll and DC Seymour arrested him at Gatwick Airport on 26 May 2006 and transported him to Loddon Valley Police Station. They were in his company for two hours and 20 minutes. At ll.30am on the same day, both officers together listened to the covert recording from the Sprinter Van. They listened only to a section of the recording which lasted 59 seconds. St John’s voice was said to be a voice speaking over a walkie-talkie radio to the men in the van. The time they spent listening to the recording was not recorded but it cannot have been very long because the next recorded time on which St John was seen by them was at 12.13pm on the same day. 33. In his ruling, the judge records that both DC Gittings and DC Fleck listened to the covert recording on 9 May. This must be an error, because the agreed facts placed before us show, as we have already stated, that DC Fleck said he listened to the recording on that date but DC Gittings said he listened to the recording on 18 May. 34. In his ruling, the judge rejected allegations made on behalf of each appellant that the police officers had acted in bad faith. He went on to deal with the submission that in the face of Dr Holmes’ evidence the police officers’ voice recognition was too unreliable to be admissible. He said in a passage, which seems to be determinative of his ruling, the following: “I agree with Mr Moore that there is no direct contradiction between Dr Holmes’ evidence and that of the officer. On the basis of the material submitted to her, Dr Holmes said it was not possible reliably to attribute anything in the recording to particular speakers, but that was as far as she was able to go. She did not, for example, say that the quality of the tape was so poor that not even someone who had spent some time in conversation with a particular individual would be unable reliably to recognise his voice on the recording.” In the final paragraph of the ruling the judge said that the criticisms raised of this evidence were perfectly proper points to be pursued in evidence and submissions to the jury but none justified him in holding under s.78 of PACE that the evidence should be excluded. Discussion 35. The first submission on this ground of appeal made by Mr Stephen Batten QC (not trial counsel) is that the judge, in the passage cited above in his ruling misinterpreted Dr Holmes’ evidence. Following the trial fresh counsel and solicitors obtained a further statement from Dr Holmes which formed the basis of the application for leave to appeal which was granted by the full court. The full court further directed Dr Holmes to attend the hearing of the appeal to give evidence. 36. We must deal first with the basis upon which we received further evidence from Dr Holmes. As already noted, no objection to us hearing the evidence was taken by Mr Moore. As also noted, strictly speaking it is not fresh evidence. However, we take the view that we are able to receive this evidence as necessary and expedient in the interest of justice (see s.23 – (1)(c)). 37. We go back to the passage in the judge’s ruling referred to above (see paragraph 34). That passage is a reference to two sentences in Dr Holmes’ report dated 5 October 2006 which read: “Although some of the speech was clearly intelligible much had lower intelligibility or could not be decoded with any degree of certainty. Because of the fragmented nature of the recorded speech and the poor technical quality, it was not possible reliably to attribute utterances to individual speakers.” 38. In her further statement dated 5 June 2007, prepared for the purpose of the application for leave to appeal, Dr Holmes said: “A pre-requisite for my making a speaker-identification is that there is sample of adequate size from the disputed recording that can confidently be attributed to a single speaker. This sample forms the basis for the process of analysis. If it is not possible reliably to attribute utterances to individual speakers then the basis for an analysis is lacking. In the present case, on the basis of the analysis carried out by me in the course of producing the orthographic transcript of the disputed material, I made a judgment that I was not able reliably to attribute utterances to individual speakers, and consequently that it was not appropriate for me to carry out a speech comparison analysis.” 39. It is submitted by Mr Batten that this passage demonstrates that the judge in his ruling acted on a misconception of Dr Holmes’ evidence. Mr Moore, on the other hand, submits that there is no misconception. Relying on a passage in an e-mail from Dr Holmes to the appellant’s counsel shortly before this appeal (properly disclosed to the prosecution) he submits that Dr Holmes’ evidence remains as stated by the judge. Mr Moore relies on a passage in the e-mail which reads “There is no problem in principle with a police officer having an opinion regarding the identity of a speech he/she hears on a recording”. 40. Having compared the passages in Dr Holmes’ various reports and the e-mail, and having heard her give evidence, we have no doubt that the passage in the judge’s ruling does not fully reflect Dr Holmes’ opinion. As Dr Holmes made clear in her evidence to us, because of the poor quality of the covert recording of the voices in the Sprinter van, she was not able to get to the stage where it was possible to start to analyse the voices by reference to individual speakers. In our judgment the key passage in her second statement is the sentence, “A pre-requisite for my making a speaker-identification is that there is sample of adequate size from the disputed recording that can confidently be attributed to a single speaker”. If she, using her sophisticated equipment, was unable to identify individual speakers it seems to us dangerous to assume that a lay listener could not only distinguish different speakers, but go on to identify accurately the voice of one individual speaker. Dr Holmes in her e-mail added to the passage already quoted from the e-mail the following: “Further, there is no reason why a particular officer’s recognition of a voice should not be used as a basis for further investigation (no reference specifically to the present case; I am thinking more generally of e.g. cases involving hoax telephone calls made by someone already known to the police). The question here is rather, whether the opinion of a police officer, who is in this context a lay listener, should have any evidential weight in the absence of an expert opinion. The points raised in 1. above should give an indication of the potential issues raised.” The issues raised above are factors to which we have already referred in the passage in this judgment summarising general comments made by the experts on lay listener voice recognition. 41. We approach the judge’s decision on the basis that he did misconstrue part of Dr Holmes’ report. We attach no blame to the judge for this. Neither the prosecution nor the defence sought to call Dr Holmes on the voir dire. This was in our view an error. Had Dr Holmes been called and her evidence explored, in our opinion, the judge would have been in a far better position to evaluate the probative value of the police officers’ evidence. 42. It is unnecessary for us to recite the general matters upon which Dr Holmes gave evidence. We have incorporated these matters into the general factors outlined above (see para 16). Specifically, in respect of the recognition by the police officers of the appellants’ voices on the covert tape, Dr Holmes said that the tape was sub-optimal and even by that standard poor. In her opinion the quality was such that it was not suitable for speech analysis. She said that before one can start to compare a disputed voice with a known voice one must be able to differentiate one voice from another on the disputed tape. In this case she was unable to distinguish the different voices on the covert tape and was not able reliably to distinguish patterns of speech. As to DC Gittings’ transcript, she said that although it was available to her when she made her transcript, she made her own before evaluating it against DC Gittings’ transcript. 43. Dr Holmes added that both she and Professor French used auditory and acoustic techniques. It was agreed that her equipment used to listen to the covert tape was more sophisticated than that used by the police officers. The latter was a standard issue Metropolitan Police laptop. 44. Dr Holmes said that recording by means of a telephone device, as had been done in this instance, further distorts the voice. 45. In his written report, Professor French stated that in his opinion it was not possible to work from a raised voice, as identified by the police officers, “backwards” to conclude, as the police officers had done, that the person speaking would have a quiet or high-pitched voice when speaking normally. This was a reference to the voice speaking over the walkie-talkie to the men in the van. In his view the most that it is safe to conclude is that the voice identified by police officers as that of St John, could be his voice. In his report he stated “it is an open possibility; I cannot eliminate him”. 46. In our judgment, central to the decision of whether the police officers’ evidence was admissible is the issue of whether it had any potential probative value. Mr Moore submits that it was relevant evidence and the judge was bound to rule it admissible. It was for the jury to evaluate its probative value in the light of the criticisms of it and the expert evidence. He further submits that when considering the application to exclude the evidence under s.78 of PACE the judge exercised his discretion in a way which was neither unreasonable nor flawed in the Wednesbury sense. Conclusions on this ground 47. On the basis of the expert evidence in this case and the agreed evidence relating to the police officers’ experience of the voice of each appellant, our conclusion is that the evidence of voice recognition by the police officers should have been excluded by the judge. 48. It is quite clear that the covert recording of voices in the Sprinter van was poor. It was so poor that Dr Holmes, even using her sophisticated equipment was unable to distinguish between different voices. Comparing her transcript with that of DC Gittings a number of the words which DC Gittings purported to recognise as Flynn’s, are not distinguished by Dr Holmes as words. Professor French described the recording as poor and, as already stated, he was not able to rule out the possibility that the voice attributable to St John was either his or not his. 49. So far as the evidence of DC Gittings and DC Fleck is concerned, their familiarity with Flynn’s voice was gained from comparatively short periods of time in his company on two days. It was eighteen days before DC Gittings listened to the covert recording and compiled the transcript. In DC Fleck’s case, accepting his evidence which is in complete conflict with the Gittings evidence as to when the transcript was made, it was at least nine days after he had last heard Flynn speak before he listened to the covert recording. 50. So far as St John is concerned, the police officers listened to the covert recording very soon after they had been with him for a period of two hours twenty minutes. To that extent they were in a better position than DC Gittings and DC Fleck to identify his voice on the covert recording. However, DC Nicoll and DC Seymour had a limited time to familiarise themselves with St John’s voice. Furthermore, the part of the covert recording alleged to be attributable to him lasted only 59 seconds of a poor tape and was of a voice itself said to be communicated to the van via the further distorting medium of a walkie-talkie. 51. There are other considerations which apply to both appellants. We have already noted the two most important factors, namely the limited opportunity for the officers to acquire familiarity with the appellants’ voices and secondly, the poor quality of the covert recording. To these we add the following. First, the police officers’ purported recognition of the appellants’ voices is in marked contrast to the evidence of the two experts who are unable to recognise their voices; in Dr Holmes’ case she was unable to identify individual voices. Secondly, nothing is known of the ability of any of the police officers to recognise voices. There is no evidence that any of them had any training in auditory analysis. Thirdly, the identification of the voices was carried out by listening to the covert tape on a standard laptop computer, as opposed to the sophisticated equipment used by the experts. Fourthly, in our judgment, it is significant that DC Gittings’ transcript contains words attributed to Flynn which Dr Holmes could not distinguish as words, let alone recognise as attributable to Flynn. Fifthly, the expert evidence shows that lay listeners with considerable familiarity of a voice and listening to a clear recording, can still make mistakes. 52. Taking all these factors into account we conclude that there are powerful factors militating against the admission of the evidence of the police officers in the case of each of the appellants. Such evidence was self-evidently very prejudicial. As the experts point out, there are difficulties in challenging the evidence of lay listeners for the reasons noted earlier in this judgment. In our judgment, the general uncertainties about the evidence of voice recognition by lay listeners are enhanced by the specific facts in the case of each of these appellants. Quite simply, in our opinion, the prejudicial effect of this evidence far outweighed its probative value. Accordingly we conclude that the judge was wrong to rule it admissible. 53. There are other reasons why, in our judgment, the judge ought also to have excluded the evidence under s.78 of PACE . First, in our opinion, when the process of obtaining such evidence is embarked on by police officers it is vital that the process is properly recorded by those officers. The amount of time spent in contact with the defendant will be very relevant to the issue of familiarity. Secondly, the date and time spent by the police officer compiling a transcript of a covert recording must be recorded. If the police officer annotates the transcript with his views as to which person is speaking, that must be noted. Thirdly, before attempting the voice recognition exercise the police officer should not be supplied with a copy of a transcript bearing another officer’s annotations of whom he believes is speaking. Any annotated transcript clearly compromises the ability of a subsequent listener to reach an independent opinion. Fourthly, for obvious reasons, it is highly desirable that such a voice recognition exercise should be carried out by someone other than an officer investigating the offence. It is all too easy for an investigating officer wittingly or unwittingly to be affected by knowledge already obtained in the course of the investigation. 54. This case provides an example of why these minimal safeguards should have been observed. No notes were made by any of the police officers of the dates and times when they attempted to recognise the voices on the covert recording from the Sprinter van. There is an important inconsistency in the evidence of DC Gittings and the evidence of DC Fleck. If the former is correct, he did not produce the transcript until 18 May 2006, nine days after DC Fleck said he had the transcript in his possession when he listened to the disputed tape. This is not a minor discrepancy. DC Fleck said the transcript he had on 9 May did not contain DC Gittings’ notes in the margin indicating which passages he attributed to Flynn. Yet, DC Gittings said he only produced one copy of the transcript and on it he placed his opinion as to who was speaking. It is agreed there was only one transcript produced and no copies were made. 55. It is not clear if the judge, when he gave his ruling, was aware of this discrepancy. It does not feature in his ruling. However, the discrepancy further hindered the ability of counsel for Flynn to challenge the accuracy of DC Fleck’s evidence. This discrepancy and the failure of the officers to record essential details of how and when the transcript was compiled, and the dates when each listened to the tape, coupled with the dangers to the use of voice recognition evidence by lay listeners, are all sufficient in our judgment to make it unfair for the evidence to be admitted. For these reasons we would also have excluded this evidence and in our judgment the judge was wrong not to exclude it under s.78 of PACE . Ground 2 56. The appellant submits that the judge misdirected the jury by instructing them that they should not attempt to compare the voices heard on the covert recording with the voices of the appellants which they had heard when they gave evidence in the trial. Apart from the decision in R v Chenia [2003] 2 Cr.App.R. 6 there is no decision which supports the direction given by the judge. On the contrary, there are passages in other authorities, including those referred to above, which suggest that the jury should be permitted to make such a comparison providing the judge directs the jury to listen to the tapes guided by the evidence of the voice recognition witnesses, whether expert or lay listeners. 57. Mr Moore conceded that the direction given by the judge in this instance was wrong. We agree, but point out, in fairness to the judge, that he gave the direction at the instigation and agreement of all counsel. 58. Mr Moore’s alternative submission was that this misdirection does not render the jury’s verdicts unsafe. We consider this latter submission in conjunction with a similar submission made by Mr Moore in respect of ground 1. Are the verdicts of the jury safe? 59. Mr Moore urged on the court a submission that if we upheld the appellants’ submissions on either or both of the grounds of appeal we should nevertheless find that the verdicts of the jury were safe. He submits that the case against each of these appellants was a strong one. 60. We accept that the case against each appellant was strong, particularly the case against Flynn. However, we are unable to conclude that the verdicts are safe. As we have already stated, the prejudicial effect of the voice recognition evidence given by the police officers must have been considerable. Without this evidence the prosecution’s case against both appellants relied on circumstantial evidence. We find ourselves quite unable to say that if the voice recognition evidence had been excluded the jury would inevitably have reached the same verdicts. Conclusion 61. For the reasons explained in this judgment we allow the appeals of both appellants and quash their convictions. Postscript 62. As appears from the above we have been dealing in these appeals with issues arising out of voice recognition evidence. Nothing in this judgment should be taken as casting doubt on the admissibility of evidence given by properly qualified experts in this field. On the material before use we think it neither possible nor desirable to go as far as the Northern Ireland Court of Criminal Appeal in O’Doherty which ruled that auditory analysis evidence given by experts in this field was inadmissible unless supported by expert evidence of acoustic analysis. So far as lay listener evidence is concerned, in our opinion, the key to admissibility is the degree of familiarity of the witness with the suspect’s voice. Even then the dangers of a mis-identification remain; the more so where the recording of the voice to be identified is poor. 63. The increasing use sought to be made of lay listener evidence from police officers must, in our opinion, be treated with great caution and great care. In our view where the prosecution seek to rely on such evidence it is desirable that an expert should be instructed to give an independent opinion on the validity of such evidence. In addition, as outlined above, great care should be taken by police officers to record the procedures taken by them which form the basis for their evidence. Whether the evidence is sufficiently probative to be admitted will depend very much on the facts of each case. 64. It goes without saying that in all cases in which the prosecution rely on voice recognition evidence, whether lay listener, or expert, or both, the judge must give a very careful direction to the jury warning it of the danger of mistakes in such cases. POST JUDGMENT DISCUSSION ____________________ Friday 2 May 2008 LORD JUSTICE GAGE: For the reasons given in the judgment which we now hand down, these appeals will be allowed and the convictions quashed. Are there any applications? MISS BRADY: My Lord, there has been a skeleton argument submitted by Mr Moore of counsel. LORD JUSTICE GAGE: Yes, we have seen that. I seem to remember Mr Batten at any rate saying, when he opened the case, that what he was seeking was a retrial. MR YEO: My Lord, yes. The application for a retrial was unopposed on behalf of Mr Flynn. LORD JUSTICE GAGE: Yes, very well. What about St John? MR GRIFFITHS: My Lord, I do not have instructions to enable me to concede the point, but I do have to recognise that his fingerprint was found on a document inside the vehicle and that an answer to that is required. LORD JUSTICE GAGE: Yes. Very well, we will direct a retrial. We allow the appeals. The convictions will be quashed. There was just the one count on the indictment, is that right? MISS BRADY: My Lord, that is right. LORD JUSTICE GAGE: We specify that the conviction on that count is quashed. The appellants will be retried on that count. We direct a fresh indictment be preferred and that the appellants be re-arraigned on the fresh indictment within two months. We direct that the venue is to be chosen by the presiding judge of the South Eastern Circuit. Is that right? MISS BRADY: That is right, my Lord. LORD JUSTICE GAGE: Very well. Now, you will need representation orders presumably for each of the defendants? MR YEO: My Lord, I have no instructions to apply for a representation order. I understand that he will be privately funded. I make no application. LORD JUSTICE GAGE: Very well. We grant a representation order for Mr St John. Is there any other application? MR YEO: My Lord, yes. This appeal was privately funded until the time of leave. Could I ask for our costs, until the time of leave, to be paid out of central funds? LORD JUSTICE GAGE: I am just wondering about that. What happens if your client is convicted at the next trial? MR YEO: My Lord, there is a discretion for this court to grant the costs of this appeal. The circumstances in which Mr Batten and myself came to be instructed were that leave was refused by the single judge and then Mr Flynn senior funded the renewed application before the full court. The appeal having been successful indicates that that was a properly brought appeal, and in my submission those costs should be refunded. LORD JUSTICE GAGE: You are entitled to your costs of the appeal out of central funds. MR YEO: I am very grateful. LORD JUSTICE GAGE: There are no applications for bail, I take it? MR YEO: Not here, no. MR GRIFFITHS: Likewise, not here today. LORD JUSTICE GAGE: Very well. If you do want to make applications, you will have to make them to the Crown Court. Is there anything else? Mr Griffiths, you need a representation order for yourself and solicitors? MR GRIFFITHS: Indeed, my Lord, yes. LORD JUSTICE GAGE: Yes, very well. MR GRIFFITHS: Those who instruct me for the retrial are those who appear on the documentation that the court already has. LORD JUSTICE GAGE: All right. Thank you very much.

2008_05_02-1494.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/970/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/970

d0b413b2a419d52a04d795fdff10c93b7f0470857e73740eb32207558489ac0d

[2009] EWCA Crim 1812

EWCA_Crim_1812

2009-05-19

crown_court

Neutral Citation Number: [2009] EWCA Crim 1812 Case No. 200806319/A5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 19th May 2009 B e f o r e : LORD JUSTICE DYSON MR JUSTICE OUSELEY THE RECORDER OF KINGSTON-UPON-HULL (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v DAVID BROADY - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limite

Neutral Citation Number: [2009] EWCA Crim 1812 Case No. 200806319/A5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 19th May 2009 B e f o r e : LORD JUSTICE DYSON MR JUSTICE OUSELEY THE RECORDER OF KINGSTON-UPON-HULL (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v DAVID BROADY - - - - - - - - - - - - - - - - - - - - - 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 Leslie QC appeared on behalf of the Applicant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE OUSELEY: This is a renewed application for leave to appeal against sentence. 2. The applicant was convicted of manslaughter, which was treated as involuntary manslaughter, on 21st October 2008 and on 11th November 2008 His Honour Judge Gee at Manchester sentenced him to 7 years' imprisonment. 3. The applicant was 71 and it is principally on that basis allied to specific facts in the case upon which Mr Leslie QC who appears for him relies. 4. The deceased, a Mr Douglas, was 25 years old at the time of his death. He was a drug user. He also drank. On 25th February 2008, when he met his death, his father had twice provided him with money which he spent on drink for himself and a friend called Olsen. 5. At 7.00 pm the applicant was out walking when he met an acquaintance, Mr Forth, at the junction of Canal Street and Minshull Street in Manchester. They had been talking together for a while when Douglas approached them. They ignored Douglas, who in an aggressive manner said that it was rude of them to ignore him. They were unknown to him. Mr Forth thought that the tone adopted by Douglas was rather aggressive and he and the applicant moved away a short distance down the road. They both were aware of the aggression and threats from Mr Douglas, and the Crown accepted that the instigator of the violence was indeed Mr Douglas, who was present with his friend. 6. After they had moved away Douglas ran towards the applicant with his hands raised. Mr Forth thought that he was going to hit the applicant, as indeed did the applicant himself. The applicant was, however, carrying a knife. This was a knife which the judge concluded had an open blade. The applicant pulled it out of his coat pocket and struck downwards at Douglas' neck with it. He and Mr Forth then left the scene. The applicant disposed of the knife and although he told the police where he had disposed of it, it was never recovered. He then went home, packed a bag and left. 7. Attempts to save Douglas' life by the emergency services failed. Death was caused by the loss of blood from the wound to the right of the neck, which cut the right jugular vein and penetrated the lung to a depth to 6 to 8 centimetres. 8. The doctors's opinion was that the stabbing motion had been delivered with a significant over the arm downwards motion with moderate force. Douglas had consumed alcohol to about two-and-a-half times the legal limit for driving. 9. The applicant, aware then that police were looking for him, made arrangements to be interviewed in a neutral venue. 10. The applicant contended at trial that he had acted in self-defence but that defence was rejected. He was, however, acquitted of murder and was sentenced on the basis that this was an involuntary manslaughter in which he had lashed out, stabbed the victim, realising that doing so would expose the victim to a risk of at least some harm. 11. The applicant was treated as a man of previous good character. He had indeed in many respects a positive good character. He was aged 71 and was not frail or timid and was fit for his age. The judge accepted, albeit with reluctance, that the applicant carried a knife as a result of a street incident some 5 or 6 years before but, as we have said, did not accept that it was a closed knife such as a penknife which was removed from his pocket. 12. The judge in sentencing made it clear that he was making an allowance of some magnitude for the age of the applicant and had he been a younger man, the sentence would have been considerably higher. 13. Mr Leslie, on his behalf, in addition to drawing our attention to authorities which we have read, emphasises the age and good character of the applicant and emphasises as well that this was a man, with a friend, who was facing aggression from two men and they had already, on two occasions, sought to disengage themselves. However, the fact is that the applicant was indeed carrying an open knife for possible use if circumstances, in his view, warranted that. That was his deliberate choice. He used it, it was said, in self-defence but the jury rejected that defence. Therefore it must be treated as an excessive act undertaken by that man, notwithstanding his circumstances. The carrying of a knife without reasonable excuse is, as the judge said in his sentencing remarks, a crime committed far too often, even if concealed and carried from a misguided sense that its use in possible self-defence might arise. It takes but a moment of irritation or anger or misjudgment before the weapon is produced and used with unintended and fatal consequences. It may well be that the victim was a thoroughly threatening and aggressive nuisance but, in the circumstances, we do not consider that the sentence of 7 years' imprisonment can arguably be characterised as manifestly excessive. For those reasons this application is dismissed.

2009_05_19-1945.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/1812/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/1812

cbc2eda8cc8d7f01a35eea6ddc1c70ad5ab892c98f667dd480e76f52b63e8027

[2011] EWCA Crim 2112

EWCA_Crim_2112

2011-08-09

crown_court

Neutral Citation Number: [2011] EWCA Crim 2112 Case No: 201100250/C4-201101988/C4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 9th August 2011 B e f o r e : LORD JUSTICE LAWS MR JUSTICE BEAN MR JUSTICE HICKINBOTTOM - - -- - - - -- - - - - - - - - - - - ­ R E G I N A v CARL JOHN HEYS KEVIN JOHN MURTAGH - - -- - - - -- - - - - - - - - - - - ­ Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Comm

Neutral Citation Number: [2011] EWCA Crim 2112 Case No: 201100250/C4-201101988/C4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 9th August 2011 B e f o r e : LORD JUSTICE LAWS MR JUSTICE BEAN MR JUSTICE HICKINBOTTOM - - -- - - - -- - - - - - - - - - - - ­ R E G I N A v CARL JOHN HEYS KEVIN JOHN MURTAGH - - -- - - - -- - - - - - - - - - - - ­ Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - -- - - - -- - - - - - - - - - - - ­ Miss J Shepherd appeared on behalf of the Appellant Heys Miss R Simpson appeared on behalf of the Appellant Murtagh Mr K Donnelly appeared on behalf of the Crown - - -- - - - -- - - - - - - - - - - - ­ J U D G M E N T 1. LORD JUSTICE LAWS: These appellants faced an indictment containing three counts, each of which charged them with an offence of abducting a child. 2. On 15th June 2010, before His Honour Judge Slinger at the Preston Crown Court, they were convicted by the jury on all three. They now appeal their convictions on counts 1 and 2 only, by leave of the single judge. The abductions alleged in counts 1 and 2 are said to have taken place between 3rd and 9th June 2010. The complainants were two girls: SL, on count 1: she was 13 at the material time; and PC, on count 2 she was 14 going on 15. 3. At the time of the events in question the appellants were sharing Mr Heys' home in Blackburn. Heys met the two girls for the first time on Friday 4th June at the home of a mutual acquaintance 16-year-old Jack Murfitt. Mr Murtagh did not meet the girls until the Saturday. 4. On the Friday both of the girls told Heys that they were over 16 and studying hair and beauty at a local college. They were smoking and may have been drinking alcohol. They and Heys stayed over Friday night at Murfitt's home. On the afternoon of the Saturday 5th June 2010 the two girls went to Heys' house, after SL had phoned Heys on her mobile phone. There they met Murtagh and again stated they were 16 or 17. They went elsewhere that evening but returned and spent the night at Heys' house sleeping in the downstairs living room. They remained until the evening of Tuesday 8th June. They played computer games, drank coffee and went out from time to time. There was no suggestion that they were kept against their will or in any way physically or sexually ill-treated. They were to give clear evidence that at no time had they told either appellant of their true ages. They were found at Heys' address on the Tuesday evening and the appellants were arrested. 5. They were duly brought to trial. They did not dispute that the girls had stayed at Heys' house; they relied on the defence to a charge of child abduction provided for by section 2(3)(b) of the Child Abduction Act 1984 : "It shall be a defence for [the defendant] to prove that at the time of the alleged offence he believed that the child had attained the age of 16." 6. It is entirely clear and undisputed that this statutory defence does not require proof of a reasonable belief; only a honestly held subjective belief. However, in opening the case to the jury counsel for Crown, as he has very candidly accepted, stated (we have his written text-paragraph 19): "There is one other important matter of law that I must mention at this stage. Age. This offence, by definition, relates to children. For these purposes, a child is defined as someone under 16 years of age. It follows from that, that a defendant will not be guilty of this offence if he reasonably believes that the person who he causes or induces to stay with him was 16 or over." Then again in paragraph 22: "It will be for you, as the jury in this case, to decide what the truth is. If you are sure, having heard and seen all of the evidence in the case, that the defendants must have appreciated that the girls were underage, then that defence (reasonable belief that they were of age) is not available to them." 7. The importation of a requirement of reasonable belief was a mistake. It went uncorrected throughout the evidence for the prosecution including therefore that of the two complainants. The appellants then advanced a submission of no case to answer. The judge reject that submission and the case proceeded. The appellants did not give evidence. 8. When he came to deliver his closing address to the jury counsel for the Crown corrected the error that he had made in opening. He informed the jury that the words "reasonably" and "reasonable" had been used by mistake. He went on to explain that the only issue for the jury was whether the defendant whose case they were considering had in fact believed the girls to be 16 or over. If they were so satisfied it was no part of their function to consider whether such a belief was reasonable in all the circumstances and the defendant would be entitled to be acquitted. 9. In his summing-up the judge made no reference to prosecuting counsel's mistake. Here is the passage in which he deals with the issue of the complainants' ages (summing-up transcript 9A): "... - a defendant has in law a defence to the charge if he proves that at the time he believed that the child was 16 or over and this is the exception which I briefly mentioned earlier. So the defendant then has to prove to you to satisfy you that he did, in fact, believe that she was 16 or over but in proving it he hasn't got to reach that high standard of proof placed on the prosecution. He doesn't have to make you sure that he believed it just to make you ... just to satisfy you that on the balance of probabilities it's more likely than not on the evidence that he believed the girl was 16. What do the defendants then say about it? Remember look at them separately but they both told the police in interview that the girls had told them they were 16 or 17. They went to college doing a hair and beauty course and this, of course, is what the girls have said both when seen by the police and in their evidence. The defendants also say well look at the circumstances as well. When we first came across them they were already staying away overnight at the house with the young man not supervised by any parents. The cigarettes. There's talk of Jack Murphy having brought drink in. Say the defendants that there's really no other factual evidence and they invite you to say that on that balance of probabilities it's more likely than not that they believed the girls were 16 or over. Well, the Crown's case on Counts 1 and 2. The Crown acknowledges what the girls have said. They've said it; said it to the men but say the Crown you're entitled to and you should look at all the evidence including the circumstances of what took place. Here it's said you have two grown up mature men. You've seen them. Grown up mature men 29, one of them, father of a young child and a 37 year old. Here they were with these two girls 13, 14 almost 15 not just for a short time meeting them briefly but for a very significant period. They'd have a full chance to see them, talk to them, eat with them, watch television together see how they reacted both in daylight hours and during periods of the night. There's evidence for you to consider. What did [SL] say if you ... what did [SL] do if you believe [SL's] evidence? She says well the two of them when they first met her just say side by side each other because that's what [SL] loved to do; that's the way she operates. It must says the Crown have been clear to those two men that the girls were under 16. Well you too have seen them. Remember what counsel, the defence, said Miss Simpson said. Well [PC, the other girl], big girl, big girl - her size, her looks and so on, attitude. Well you've seen them and consider the evidence." 10. On the papers there were three grounds of appeal. The first was to the effect that the judge should have acceded to the defence submission of no case. The third, advanced only on behalf of Heys, related to a point concerning a note sent in by the jury after they had retired to consider their verdict. Neither of those grounds is pursued: if we may say so, quite rightly. 11. But the remaining and to our mind much more substantial ground is to the effect that there is a real risk that the jury considered the case on the mistaken footing, namely that the question that they had to decide was whether it was shown that the appellants reasonably believed that the girls were over 16. While Crown counsel specifically and rightly corrected his mistake in opening, when he came to make his closing speech, it needs to be borne in mind in our judgment that by then the jury had heard all the evidence and must have assumed, until the correction was made, that what counsel had said in opening correctly stated the law. It had not been put right at the time: not by counsel for the Crown, not by counsel for the defence and not by the judge. 12. When he came to sum-up in the passage we have set out the judge did not endorse or repeat Crown counsel's correction of his mistake. He did not direct the jury in terms that reasonable belief was not the test. His direction on the law at the start of the passage was certainly accurate; but he proceeded to refer to various objective factors, relied on by either side, which logically would be at least as relevant to a question of reasonable as to a question of honest belief. It is true (see Williams (1984) 78 Cr App R 276, R v Beckford [1988] AC 130 ) that the reasonableness of an asserted belief will be material to the question whether it is honestly held. However, in the events which had happened in this case, absent any clear statement by the judge that only honesty not reasonableness was the test, there must in our judgment have been a lively chance that the jury took the judge's directions to express a requirement of reasonable belief. For that reason we conclude that the convictions are unsafe and the appeal against conviction must be allowed. 13. LORD JUSTICE LAWS: Are there any applications? 14. MR DONNELLY: My Lord, I do have specific instructions from the Crown Prosecution Service to invite the court to consider ordering a retrial of these two appellants. 15. LORD JUSTICE LAWS: To invite the court; does that mean you are submitting there should be a retrial? 16. MR DONNELLY: Yes it does. 17. LORD JUSTICE LAWS: I see. They were sentenced. 18. MR DONNELLY: They were convicted of count 3 and that conviction stands: they were each sentenced to 2 years in relation to count 3 and that sentence will stand in spite of your Lordships allowing... 19. LORD JUSTICE LAWS: The date of the sentence -- that stands, yes. But you want a retrial on counts 1 and 2? 20. MR DONNELLY: Those are my instructions. 21. LORD JUSTICE LAWS: On counts 1 and 2 they were sentenced on the same occasion to? 22. MR DONNELLY: To 18 months concurrent on each of 1 and 2 but consecutive to the 2 years on count 3. 23. LORD JUSTICE LAWS: I cannot do the maths. When will they be released, everything else being equal? 24. MR DONNELLY: Mr Murtagh will have served his sentence and is entitled to immediate release. Mr Heys was in the unfortunate position of being in breach of a previous suspended sentence, so he received an additional 26 weeks for being in breach of that. 25. LORD JUSTICE LAWS: But for that he would be liable to be released as well. Both have effectively served their time on counts 1 and 2. 26. MR DONNELLY: Yes -- on count 3. 27. MR SHEPHERD: Consecutive sentence on count 3. 28. MR DONNELLY: The total sentence was three-and-a-half years, 3 years of it was count 3, 18 months was counts 1 and 2. 29. MISS SIMPSON: So far as Mr Murtagh is concerned he had already served 217 days prior to his sentence and has served an addition six-and-a-half and by my calculation he has thirteen-and-a-half, actually served thirteen-and-a-half months. He is now eligible to serve half of 2 years so served a month and half more than should as of today's date. So if the Crown are going to take this view which I understand is contrary to my learned friend's advice, then the decision needs to be made in short form. 30. LORD JUSTICE LAWS: I am not sure you should be telling us that... You say that given the amount of time served already, in short, it is not a case that is appropriate for a retrial. 31. MISS SIMPSON: No, not taking account of the strength of evidence to the fact these two girls stood by their evidence during the trial that they had at no stage indicated to either of these defendants that they were underage. 32. LORD JUSTICE LAWS: What does your co-appellant say? 33. MR SHEPHERD: My Lord I endorse that application that is made on behalf of my co-appellant. Mr Heys has the extra to serve in relation to breach of the suspended sentence order but will be due shortly for release as the matter stands today. Obviously it is a matter for the court, but it would seem that the crux of the matter was in relation to counts 3 in relation to this matter. 34. LORD JUSTICE LAWS: They have both served their proper punishment for count 3. Is there anything in reply? 35. MR DONNELLY: No submissions. (Short Adjournment) 36. LORD JUSTICE LAWS: The Crown applies for a retrial of both appellants in this case. Given in particular the amount of time already served by both, and we have in mind of course the convictions on count 3 stand in any event and having regard also to the force of the evidence on counts 1 and 2, we have concluded this is not a fit case for a retrial and we make no such order.

2011_08_09-2811.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/2112/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/2112

0eb8a9b08db9d191733e7aad88406a44db3de86d8d7023095ede607a61884bab

[2007] EWCA Crim 3047

EWCA_Crim_3047

2007-12-14

supreme_court

Neutral Citation Number: [2007] EWCA Crim 3047 Case No: 200606397 D4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROYDON CROWN COURT HIS HONOUR JUDGE PRATT T20067101 Royal Courts of Justice Strand, London, WC2A 2LL Date: 14/12/2007 Before : LADY JUSTICE SMITH MR JUSTICE UNDERHILL and SIR CHRISTOPHER HOLLAND - - - - - - - - - - - - - - - - - - - - - Between : Donnette Lowe Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2007] EWCA Crim 3047 Case No: 200606397 D4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROYDON CROWN COURT HIS HONOUR JUDGE PRATT T20067101 Royal Courts of Justice Strand, London, WC2A 2LL Date: 14/12/2007 Before : LADY JUSTICE SMITH MR JUSTICE UNDERHILL and SIR CHRISTOPHER HOLLAND - - - - - - - - - - - - - - - - - - - - - Between : Donnette Lowe Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms Julia Smart (instructed by The Criminal Appeal Office ) for the Appellant Mr J Dawes (instructed by Crown Prosecution Service ) for the Respondent Hearing date : 30 November 2007 - - - - - - - - - - - - - - - - - - - - - Judgment Sir Christopher Holland : 1. The Appellant, Donnette Lowe is aged 43; he is of Jamaican nationality. On the 13 th November 2006 at Croydon Crown Court he was convicted by a jury (a majority of 11 to 1) on Count 1 of a two count indictment. Count 1 charged the vaginal rape of a woman who we will refer to as PN on the 22 nd March 2006. Count 2 alleged a like offence committed on the 23 rd March; as to this, the jury were unable to reach a verdict and were discharged from doing so. Thereupon the Crown offered no further evidence and a not guilty verdict was entered. 2. On the 22 nd December 2006 he was sentenced to 5 years imprisonment and a recommendation for deportation was made. 3. He subsequently applied for leave to appeal against both conviction and sentence. As to conviction, his Counsel (Miss Julia Smart) advanced five grounds of appeal; the Single Judge gave leave only on Ground 2. The application for leave to appeal sentence was refused. Before this Court Miss Smart made submissions in support of the appeal and sought to renew the applications for leave with respect to both conviction and sentence. 4. Turning to the essential facts, they are as follows. The complainant, PN, was then aged 42. She was in employment as a special needs teacher and had her own house in the Croydon area. In about November 2000 a relationship developed between her and the Appellant. On any view this relationship was subject to strains. By reason of his immigration status the Appellant had no regular income from employment. Then, the Complainant had a daughter by an earlier relationship aged 21 at the material time, to whom we will refer as BT. The latter could not tolerate the Appellant’s presence in her mother’s house and would not willingly enter it when he was there. Still further, in 2003 upon the couple returning from a foreign holiday, the Appellant was caught using a false passport and subsequently served a six month prison sentence. 5. Additional to the foregoing matters (which were effectively common ground) the Complainant alleged that on occasion in the course of the relationship the Appellant used or threatened violence. It will be necessary to return to that allegation later in this judgment, presently noting that the facts are wholly or partially a matter of dispute. Similarly in issue is the Complainant’s contention that by March 2006 the relationship was losing its sexual component. 6. All that said, the Complainant had had a child by the Appellant – a daughter, C, who was aged 14 months as at March 2006. It is conceded that the Appellant maintained a good relationship with his daughter. 7. By March 2006 the Appellant was mainly resident in the Complainant’s garage. This left the way clear for BT to come to the house and the arrangement enabled the Appellant to engage in his religious observances. Indeed, an issue had developed over payment of so much of the electricity bill as was referable to the garage. 8. Turning to Count 1, the prosecution case has been helpfully summarised by Miss Smart in her Advice: “The Complainant alleged that in the early hours of 23 rd March (she originally alleged the 22 nd but this was amended during the trial) she was in her bedroom and the Defendant came in and tried to get into her bed. The Defendant started to fondle her and she knew that he wanted to have sex. She said she was tired and had to go to work the next day and there was an argument about waking C up (who was in the same room). She alleged that the Defendant punched her in the jaw. She then went down stairs to turn down the heating and the Defendant followed her down. She alleged that once downstairs in the kitchen the Defendant pushed her over a kitchen unit and put his hands around her throat. He let go and then she had an argument with him about him always wanting to be in control. She alleged that he then punched her in the ribs and she fell to the floor. She stayed on the floor for a while then went and sat on the sofa. The Defendant knelt on the floor in front of her and started to undress her. She thought she may have said the word “no” but did not have any “fight” in her and then did not say anything. The Defendant had sex with her. It did not last for long and at the end he kissed her. She stated that she thought that the Defendant must have thought he was being affectionate.” 9. It is germane to note the Complainant’s case as to Count 2. Again, citing from Miss Smart’s Advice: “On the evening of March 23 rd the Defendant was once again in the house and had seen C in the afternoon. Later that evening the Complainant said he came to her bedroom and said “Still sulking?” which she took to be a reference to the night before. The Defendant was trying to get C off to sleep and afterwards he tried to undress the Complainant. She said, “I’ll do it”. She said that BT would be home soon as an excuse to convey to the Defendant that she did not want sex. He started to kiss her and say that he was not going to be long. She didn’t say anything but was unresponsive and he inserted his penis into her vagina. She alleged that the Defendant said “You’re hard to fuck when you don’t want it but I’m enjoying it anyway.” 10. As to the subsequent complaints of rape there was a convoluted history. On the 24 th March the Complainant went to a Family Justice Centre and, speaking to a Detective Sergeant, initially raised the electricity bill issue. There then followed a complaint as to the Appellant’s violence. That led to a referral to a domestic violence counsellor to whom a complaint of rape (said to have been be committed in the bedroom) was made. Medical examination identified a small bruise on the right upper arm. 11. On the 3 rd April 2006 a long, comprehensive witness statement was completed by the Complainant setting out the allegations summarised above. On the 18 th May 2006 she provided another witness statement. In this she did not resile from her factual contentions but evinced a reluctance to maintain them against the Appellant so as to risk undermining his relationship with C. In the event she responded to a witness summons and gave evidence in accordance with the initial statement. 12. We turn to this Appeal and the leave given by the Single Judge. The point has its genesis in an application made by the prosecution to the trial judge to adduce bad character evidence. We think it necessary to cite the terms of the application as set out in the Form BC2: “To the named defendant: You are hereby given notice that bad character evidence, particulars of which are detailed below, is to be adduced or elicited in these proceedings. The particulars of that bad character evidence are as follows: a) Allegations of previous violence towards the Complainant PN as outlined in her statement of the 3/4/06 including where he would become aggressive when she asked him to leave the home, verbal abuse when she did not want to have sex, aggression towards PN and her male friend when he attacked him with a screwdriver, the Defendant’s attempt to enter the house uninvited in the middle of the night, an occasion when he entered the house uninvited and was found with a knife, the Defendant’s rough treatment of her by touching on the head with his knuckles, the Defendant’s assault on the Complainant when the washing machine repairman attended the address. Allegations of his behaviour towards BT as outlined in her statement of the 20/4/06 and in PN’s statement of 3/3/06 including an allegation that BT awoke one night to find the Defendant crouching beside her bed and stroking her hand, 30/12/05 when the Defendant struck BT. Crisis Reports also attached. b) the grounds for the admission is Section 101(d) it is relevant to an important matter in issue between the defendant and the prosecution – in that he has a propensity to behave inappropriately towards the complainant and towards her daughter. Crown would say this is pertinent evidence which the Jury should be able to assess when deciding the question of consent.” Appended to this document was the full 21 page Complainant’s statement of the 3 rd April 2006 and (we think) the record of the conviction arising out of the case of a false passport. 13. At the outset of the proceedings, the trial Judge, Judge Pratt, ruled on the application in the following terms. “I am quite satisfied that the evidence sought to be adduced by Mr Dawes, save with the one exception of what BT may have done or said, as far as page 8 is concerned and the end of it, the evidence sought to be adduced is admissible under Gateway C, as it is important explanatory evidence. It is PN giving the factual backdrop behind her expressed lack of consent on the two particular days alleged, 22 nd and 23 rd March of this year. It is also, in my judgement, admissible under Gateway D, showing in the defendant a propensity verbally and physically to ride rough shod over any of PN’s views or desires as far as their life together was concerned, and that directly is relevant to the factual backdrop of the breakdown in their relationship, and directly relevant therefore to the question of consent or lack of consent to the acts of sexual intercourse which undoubtedly took place on 22 nd and 23 rd March respectively of this year.” 14. Despite the width encompassed by the application and seemingly endorsed by the ruling, the evidence adduced of bad character seems to have been limited to the following: (a) An incident in which the Appellant entered the house to find the Complainant entertaining a male friend to lunch. In annoyance he hit out at the man with a screwdriver and subsequently accused the Complainant of having an affair; (b) an occasion when the Appellant used a ladder to enter the Complainant’s house by a window whilst armed with a knife; (c) an occasion when the Appellant was violent, seemingly because the Complainant had been in her house with the washing machine repair man. (d) an occasion when, according to BT, the Appellant had sought to enter the house by way of the patio door in breach of a stipulation that he should not be in the house when she was there. 15. When the Defendant gave evidence he addressed all these allegations, mainly by way of denial. 16. In the course of his summing up the Judge included these four incidents in his narrative of the evidence together with the Appellant’s responses all made in the course of his evidence. Upon the jury retiring both Counsel raised with the Judge a somewhat diffident enquiry as to whether he should not have given the jury a direction as to how to approach and utilise the evidence adduced before them pursuant to the bad character ruling. After discussion the Judge decided not to bring the jury back for a further specific direction on this topic. He concluded that there should have been a direction had the ruling permitted the introduction of previous convictions into evidence but that none was necessary when, as here, the ruling had served simply to add to the evidence as to the history of the relationship. He said: “If you want me to say something as banal as this, that the evidence of all the history that they have heard is only relevant to the question whether or not PN may have consented on either of these occasions, or both of them, then I suppose I can, but it would be pretty banal would it not?” In the light of this, Counsel did not press the point and nothing further was said to the jury. 17. Following subsequent reflection, Miss Smart’s earlier diffidence was replaced by the ground of appeal upon which leave was given: “The Judge failed to give a direction as to how the jury should use the bad character evidence thus leaving the jury without guidance as to how this evidence should be used.” 18. In support of this ground Miss Smart’s submissions amounted to the following: (a) In seeking to introduce evidence as to these incidents the Crown had two options. First, it could have been contended that they formed part of the res gestae , that is, per s.98 Criminal Justice Act 2003 , they had “to do with the alleged facts of the offence with which the defendant is charged.” Second, they could seek admission of such as evidence of bad character that constituted per s.101(1)(c) “important explanatory evidence”; alternatively per s.101(1)(d) that was “relevant to an important matter in issue between the defendant and the prosecution”. (b) Had the first such course been taken then Miss Smart could have made respective applications to exclude evidence of each such incident in that the prejudicial effect outweighed any materiality; further or alternatively she could have applied to exclude the evidence as being unfair pursuant to s.78 of the Police and Criminal Evidence Act 1984 . That said, if admitted before the jury as part of the res gestae , no such incident would have any particular status over and above any other incident of the history preceding the alleged offence so as to require specific direction as to proof. (c) In the event, however, it was the second course that was taken with the result, so she submits, that the jury should have been confronted with a two stage approach. Thus, taking each incident in turn, were they sure that the facts as alleged by the Crown had been proved? If so, did those facts serve either or both s. 101 functions? The corollary to this submission is that if, with respect to any one incident, they are not satisfied that the facts were as alleged then they should put that matter to one side and place no reliance upon it. (d) Miss Smart now submits that the Judge wrongly regarded each of these incidents as in effect part of the res gestae so as not to call for specific directions. He therefore wrongly distinguished this situation from that where the Crown adduces evidence of previous convictions, where specific directions are required. In truth, there was no distinction between the instant situation and that which would have arisen had convictions been adduced save, ironically, that the jury’s task would have been simpler in that the fact of a conviction is normally a matter of admission. (e) Flowing from the foregoing, the Judge’s failure to give a direction to the jury as their approach to the bad character evidence amounted to a material irregularity imperilling the safety of the conviction. 19. It is to be observed that in December 2004 the JSB produced a specimen bad character direction, the opening of which is in the following terms : “In this case you have heard evidence that the defendant has a bad character in the sense that he has .. misconducted himself. It is important that you should understand why you have heard this evidence and how you may use it.” Any such specimen had to be tentative (it was issued before the relevant sections of the Criminal Justice Act 2003 came into force), and further guidance was forthcoming from this court in R v Campbell [2007] EWCA Crim 1472 . The judgment of the court was given by Lord Phillips C.J. A warning against slavish adherence to specimen direction was given (paragraph 24): “When 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 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 it.” Later, at paragraphs 38 and 43: “If the jury is told in simple language and with reference, where appropriate to the particular facts of the case, why the bad character evidence may be relevant, this will necessarily encompass the gateway by which the evidence was admitted. …. It is of course highly desirable that the jury should be warned against attaching too much weight to bad character evidence let alone concluding that the defendant is guilty simply because of his bad character.” 20. On behalf of the prosecution, Mr Dawes drew comfort from the notion of an approach tailored to the particular circumstances of the case and submitted that the Judge was right, or, more forcefully, that given the close relationship the incidents had with the history of the relationship and thus with the res gestae , the absence of a direction could not impugn the safety of the conviction. Any such direction “would have been so anodyne and a statement of the obvious that it would not have been of any real use to the jury…” He pointed to the failure to reach a verdict on Count 2 and contended that such was inconsistent with any continuing reliance upon bad character evidence. 21. For our part we are satisfied that the Judge was in error and that there should have been a bad character direction, encompassing the following elements: (a) Identification of the incidents evidence of which had been adduced pursuant to his bad character ruling; (b) A direction that, with respect to each incident, the jury should decide whether the facts as alleged by the Crown had been proved so that they were sure of them, that is to the criminal standard of proof; (c) A direction that, with respect to any incident not so proved, the evidence should be put aside and accorded no significance; (d) A direction as to the potential significance of any incident that had been proved – in this case that the incidents may throw light on the relationship between Complainant and Defendant and thus bear upon the potential for consent on her part to his sexual advances; and (e) finally, a warning against necessarily according the incidents any significance if an alternative construction serves to cast doubt upon the construction contended for by the Crown and also against attaching too much weight to this evidence. 22. In formulating this approach we have drawn a ready parallel between it and the approach to evidence as to lies, that is, the Lucas Direction. Just as the latter imposes a two stage consideration (are you sure that he did lie? If so, why did he lie – were the reasons consistent with guilt or were they or may they have been innocent?), we have here in a case not involving previous convictions, a need to make a finding as to the fact of the incident alleged before proceeding to a further stage of assessment of significance in accordance with the burden and standard of proof. 23. Before parting from this part of the case, we draw attention to the history leading to the Judge’s decision not specifically to direct the jury. It is to be noted that the original application was unspecific and of a ‘scattershot’ nature invoking the full, long witness statement without condescending to specifics. The ruling was similarly non-specific. Not surprisingly, therefore, by the time that the jury retired and minds were directed in a somewhat desultory fashion to such bad character evidence as had been admitted, its precise ambit had been lost, subsumed into the history of the relationship as, in effect, the res gestae , all as the Judge effectively pointed out. Had the identification of the bad character evidence been from the outset specific, reflecting a conscious justified departure from what would have been inadmissible before the Criminal Justice Act 2003 , then minds would more readily have been focussed upon what was required by way of jury direction and the matter would not have been for consideration as an afterthought. 24. Did the failure to give a bad character direction render the conviction unsafe? We are satisfied that the answer is ‘Yes’ so that the conviction has to be quashed. 25. In addition to Ground 2 upon which leave was given, Miss Smart advanced four other grounds, respectively refused by the Single Judge. Before us she renewed the application for leave on these further grounds, but sensibly confined her oral submissions to Ground 2. For our part, we have read the various arguments as advanced in her advice and skeleton argument but remain unable to take a view different from that of the Single Judge. It is unnecessary to add to this judgment anything further in this regard save that we confirm that we have given careful consideration to the subsequent statements of the Complainant; we accept that they evince regret as having initiated a complaint that in the event has served to impair the relationship between the Defendant and C, we do not accept that on careful reading they have any further significance. 26. There is a renewed application for leave to appeal against sentence. Since we are allowing the appeal against conviction, this is now otiose.

2007_12_14-1313.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/3047/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/3047

1ac64c01ebcdf51db387fefc4bea63b95b3febef09b822bf9352554989eea26b

[2010] EWCA Crim 2803

EWCA_Crim_2803

2010-11-09

crown_court

Neutral Citation Number: [2010] EWCA Crim 2803 Case No: 201003464 A3; 201003502 A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 9th November 2010 B e f o r e : LORD JUSTICE PITCHFORD MR JUSTICE HENRIQUES HIS HONOUR JUDGE MILFORD QC (Sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A v DAVID PARKES MICHAEL JOHN CARTWRIGHT - - - - - - - - - - - - - - - - - - - - - Computer Aid

Neutral Citation Number: [2010] EWCA Crim 2803 Case No: 201003464 A3; 201003502 A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 9th November 2010 B e f o r e : LORD JUSTICE PITCHFORD MR JUSTICE HENRIQUES HIS HONOUR JUDGE MILFORD QC (Sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A v DAVID PARKES MICHAEL JOHN CARTWRIGHT - - - - - - - - - - - - - - - - - - - - - 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 C O'Gorman appeared on behalf of the Appellants Mr D Whitehead appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. JUDGE MILFORD: These appellants, David Parkes, aged 44, and Michael John Cartwright, aged 42, were both sentenced by His Honour Judge Parkes at Wolverhampton Crown Court for offences which arose out of an incident of disorder involving rival football fans. They had both pleaded guilty to offences contrary to section 4 of the Public Order Act 1986 , using threatening words or behaviour, and were sentenced on 21st May 2010 to 18 weeks' imprisonment suspended for two years with a 200 hours unpaid work requirement. Additionally, Cartwright was made subject to a curfew requirement from 8 pm to 7 pm for 18 weeks. Both were ordered to pay £500 towards the costs of the prosecution and both were made the subject of a Football Banning Order for four years. 2. Both appeal against the imposition of the Football Banning Order and the order for costs with the leave of the single judge. 3. The appellants are both supporters of Wolverhampton Wanderers, commonly known as "Wolves". On Saturday 3rd January 2009 their team was scheduled to play Birmingham City, but owing to inclement weather the fixture was cancelled. 4. On the same day a match did take place between West Bromwich Albion and Peterborough United at home for West Bromwich Albion. After the match some of the West Bromwich Albion supporters made their way to the Bellwether public house at Wednesbury. The police had intelligence that disorder was being planned in Wednesbury town centre between Wolves fans and West Bromwich Albion fans. Accordingly they deployed to the front and rear of the public house. 5. Initially five Wolves supporters were seen to approach the public house and were stopped and checked by the police. Both appellants were in that group. Cartwright provided false details. They were allowed to go on their way, whereupon West Bromwich Albion supporters climbed over the fence of the public house and began to sing and shout at the group of five. Within seconds the incident escalated. Bottles and beer glasses were thrown and the numbers of West Bromwich Albion supporters swelled to about 40, advancing towards the five Wolves supporters and inviting them to fight. The appellants responded in an equally threatening manner. 6. The police were doing their best to cope with the situation when about 50 more Wolves supporters materialised and attempted to provoke the West Bromwich Albion supporters. Bricks and bottles were thrown and riot vans arrived to deal with the situation. A rocket was fired from the West Bromwich Albion supporters. A number of arrests were made including the appellants. Cartwright admitted taunting the rival group. Parkes made no admissions, save to presence. 7. The appellants and eight others were indicted with violent disorder. The trial commenced on 26th April. Cartwright had pleaded guilty immediately before the trial started to violent disorder. Parkes pleaded guilty to the section 4 offence on 29th April when the prosecution had indicated that such pleas would be acceptable. He pleaded guilty on a written basis which set out that he was not part of any plan to cause disorder and went to the cancelled match at the invitation of Paul Whittall, another of the group of five. He believed that they were just going for a drink in Wednesbury. Effectively, he was caught up in what occurred, and when he was confident that the group he was with were not going to worsted he joined in the threats to the West Bromwich Albion supporters by holding out his arms and inviting them to fight. 8. Sentence was put over to 21st May. Those who had pleaded guilty to violent disorder were permitted to withdraw their pleas and enter pleas of guilty to the section 4 offence. 9. Mr Mann, who was then acting for Parkes but does not appear before the court today, apparently went to the hearing armed with the relevant authorities and ready to argue that there were no grounds for making a Football Banning Order. However, his resolve did not last very long. When confronted with the prospect of a Newton hearing he backed down and accepted that a Football Banning Order could properly be made, so did those acting for Cartwright and indeed everyone else who was there. That is to say, all accepted that a Football Banning Order could be made because the offences were related to a football match. 10. It is an unhappy aspect of this appeal that now these two appellants come before the court standing back from the decision that was clearly made on their behalf at the sentencing hearing and challenging the finding of the trial judge. However, that does not preclude this court considering whether or not the orders were properly made. 11. Football Banning Orders are governed by section 14A of the Football Spectators Act 1989 . Section 14A(1) reads: "This section applies where a person (the 'offender') is convicted of a relevant offence. (2) If the court is satisfied that there are reasonable grounds to believe that making a banning order would help to prevent violence or disorder at or in connection with any regulated football matches, it must make such an order in respect of the offender." "Relevant offences" are defined in Schedule 1 to the Act as at paragraph 1(r): "any offence involving the use or threat of violence by the accused towards another person — (i) which does not fall within paragraph (d) or (m) above, (ii) which was committed during a period relevant to a football match to which this Schedule applies, and (iii) as respects which the court makes a declaration that the offence related to that match or to that match and any other football match which took place during that period." The relevant period is 24 hours either side of the match. 12. Mr O'Gorman, for the appellants, argues that what occurred here did not relate to a football match and that the judge, when making the order, did not find that it did or identify the match. What he said was: "I am satisfied that the offence is a relevant offence and that it is related to football. It is abundantly clear from the circumstances of the case that this was a football-related offence." Mr O'Gorman submits that the test is not whether the offence is related to football, it is whether it is related to a football match to which the schedule applies. 13. It is accepted that the offence which both appellants had admitted was a relevant offence and that the match between West Bromwich Albion and Peterborough United was a football match to which the schedule applied. The match between Wolves and Birmingham City had been cancelled. It never took place. 14. So the simple question is, did the offences relate to the football match between West Bromwich Albion and Peterborough? 15. For the appellants it is submitted it is not so related. For the respondents it is submitted that it is. 16. We have been directed to a number of authorities in which this court had to consider whether a Football Banning Order could properly be said to relate to a match. The judgments in those cases do not purport to set out principles of general application. Each case was decided on its own facts. 17. In R v Smith [2004] Cr App R (S) 58, Kidderminster football fans turned away from a match at Shrewsbury were returning home on a train and behaving in a disorderly manner. They were drunk. The appellant in that context committed a section 4 offence against a police constable. The court allowed the appeal, finding that the offence did not relate to the football match. 18. In R v Elliott and others [2007] EWCA Crim 1002 , [2007] Cr App R (S), a case which coincidentally concerned Wolves fans, at paragraph 21 Stanley Burnton J (as he then was) observed this: "We have to say that, in our judgment, the case for making the required declaration on the facts of Smith were significantly stronger than the facts of the present case. The Court in that case did not lay down any conclusion in principle, and therefore it would perhaps be unwise to say any more about it, other than to comment that where supporters become drunk and, in particular, violent, or simply violent, on their way to a match or coming from a match (and even where they have failed to get to the match), in an appropriate case it may well be open to a court to make the appropriate declaration, even though the spark for the violence is not itself football-related. The fact that the spark for the violence is something which is not intrinsically football-related does not of itself mean that the offence is not related to a football match. There is always a spark for violence. In the present case, however, the spark was unconnected with the match, and although those participating in the violence were Wolverhampton supporters, the incident had nothing else to do with the football match." 19. It is instructive thus to seek to identify the spark which caused the violence in this case. Can it be said to be something wholly unrelated to football? 20. The underlying facts of this case are these. West Bromwich Albion had played a match to which the schedule applied and some of its fans, after the match, had repaired to the Bellwether public house to refresh themselves. Wolves had not played a match. From what occurred that evening it is clear that there was hostility between at least some Wolves and some West Bromwich Albion fans. The evidence demonstrated, as the judge found, that some Wolves fans, amongst whom were the appellants, went deliberately to Wednesbury in the knowledge that West Bromwich Albion supporters would be at the Bellwether after their match. The judge said this at letter E page 2 of the sentencing remarks: "This was, in my judgment, a serious public disorder incident. I am quite satisfied, having heard some evidence which was tested under cross-examination, that there was an element of pre-planning in this meeting on the day in question. The exact circumstances in which arrangements were made for this encounter are unknown but in my judgment it is beyond coincidence that a large group of West Bromwich Albion supporters congregated in an area where also congregated a large group of Wolverhampton Wanderers supporters. The circumstances are that on the evening, at about 6.00 to 6.25, a large group of West Bromwich Albion supporters were in and around the public house. Five members of supporters of Wolverhampton Wanderers were across the road. I am satisfied that they were there in order to entice the West Bromwich Albion supporters, in the knowledge that there was a large group of Wolverhampton Wanderers supporters in the near vicinity who were engaged in a further public disorder." 21. The fact that the Wolves supporters were not involved in the match which West Bromwich Albion had earlier played is a point of little substance when the whole picture is considered. The West Bromwich Albion fans were together because of the match that their team had played. The Wolves supporters knew they would be together because of that match and where they would be and sought them out to cause trouble based on the rivalry between the clubs. 22. Returning to the question of the spark, it is sophistry to suggest that it was anything other than the enmity which existed between the two sets of fans. The spark was football. 23. The offences, judged individually, were clearly related to the match between West Bromwich Albion and Peterborough. Parkes did not accept that he went to Wednesbury looking for West Bromwich Albion fans and for trouble but he became caught up in the hostility which erupted between the two sets of fans, which was related to the match and joined in by threatening the West Bromwich Albion fans. So it is that his offence too is related to the match. 24. Although the judge's declaration was defective in that he did not identify the particular match, this was the only match and is what he must have been referring to. He was entitled to make the declaration he was endeavouring to make and said the offences related to football. 25. The second point which is raised, with, we have to say, not much enthusiasm by Mr O'Gorman today is the question of costs. Complaint is made that these offences could have been dealt with in the Magistrates Court when costs would have been lower. It was the violent disorder, not proceeded with, which brought the case to the Crown Court. 26. Anyone who indulges in an offence of public disorder with others of the sort and scale here should realise that his case may well find its way to the Crown Court, and if it does he cannot be heard to complain. Indeed, Cartwright pleaded guilty, initially, to violent disorder. 27. The appeals are dismissed.

2010_11_09-2543.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/2803/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/2803

df7b4d6613482f3a33d39c4a6be4a569e94c1dbb0864b2156fb8d549595f3865

[2011] EWCA Crim 1022

EWCA_Crim_1022

2011-04-18

crown_court

Neutral Citation Number: [2011] EWCA Crim 1022 Case Nos: 2010/05149/A6 , 2010/05231/A6 , 2010/05221/A6, 2010/05219/A6, 2010/05152/A6 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT COVENTRY HIS HONOUR JUDGE COATES T20097245 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/04/2011 Before : LORD JUSTICE THOMAS SIR GEOFFREY GRIGSON and RECORDER OF REDBRIDGE, HHJ RADFORD - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent

Neutral Citation Number: [2011] EWCA Crim 1022 Case Nos: 2010/05149/A6 , 2010/05231/A6 , 2010/05221/A6, 2010/05219/A6, 2010/05152/A6 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT COVENTRY HIS HONOUR JUDGE COATES T20097245 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/04/2011 Before : LORD JUSTICE THOMAS SIR GEOFFREY GRIGSON and RECORDER OF REDBRIDGE, HHJ RADFORD - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Scott Allan Syedhaidar Ali Gilani Paul Danny Bisset Robert Charles Brandon Mathew Robert May Appellants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr R Offenbach for the Appellant (Allan) Mr P Sutton for the Appellant (Gilani) Ms D Middleton for the Appellant (Bissett) Mr T Smith for the Appellant (Brandon) Mr I Jobling for the Appellant (May) Mr M Duck for the Respondent Hearing date : 30 March 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Sir Geoffrey Grigson : 1. These five appellants were granted leave to appeal against sentence by the single judge. Each had pleaded guilty at the Crown Court at Coventry to the same conspiracy, the particulars of which were that: “...on a day between the 4 th day of September 2008 and the 20 th day of August 2009 conspired together and with others to supply a controlled drug of Class C namely cannabis.” 2. Gilani had pleaded guilty on 28 September 2009. Bisset and Brandon pleaded guilty on re-arraignment in May 2010. Allan and May pleaded guilty on re-arraignment in June 2010. 3. On 25 August 2010 each appellant was sentenced to eight years imprisonment, the Judge having decided that the appropriate sentence after a trial would have been 12 years. He said that with the possible exception of Gilani he would make no distinction between the appellants to reflect the timing of the pleas of guilty. In the event he sentenced each appellant as if he had pleaded guilty at the first opportunity, a decision which has left Gilani with some sense of grievance. 4. There were three other defendants. Bowthorpe and Atkins had been convicted of the same conspiracy. Donovan had pleaded guilty to being concerned in the supply of cannabis. Each was sentenced to 12 months imprisonment suspended for two years. In addition Atkins and Bowthorpe were ordered to do 250 hours unpaid work in the community and to pay £1,000 towards the costs of the prosecution. Donovan had a supervision order attached to his sentence and was ordered to pay £200 costs. The basis of sentence determined by the Judge was that each had been involved only as a driver and only on one occasion. 5. The prosecution case against these appellants was that each was involved in a wide-ranging and serious conspiracy whereby cannabis factories run and controlled by others were identified and then attacked. If there was anyone on the premises they would be driven off by the threat or use of violence, thus allowing the conspirators to harvest and remove the cannabis for onward supply. 6. As is apparent, the supply of cannabis was the last and arguably the least serious element of the scheme. The prosecution case necessarily involved at the least a conspiracy to burgle and at worst a conspiracy to rob. These elements were not reflected in the indictment and that omission has particular consequences. 7. The facts relied upon by the prosecution were largely agreed. It is necessary to set them out in some detail. 8. The unravelling of the conspiracy began on 15 July in Magyar Crescent, Nuneaton. 41 Magyar Crescent was a cannabis factory. In the early hours of the morning neighbours reported an ongoing burglary at that address. Men were seen leaving the premises with large plastic laundry bags. The police attended and found four such bags full of mature cannabis. Outside the house was a Vivaro van in which police found a bill of sale to Bisset and a forged insurance note. Both documents had Brandon’s fingerprints on them. Gilani was found hiding in a bush nearby. He was in possession of the keys to a Ford Fiesta. In that vehicle police found plastic laundry bags of exactly the same type as those containing the cannabis. The ‘guardian’ of the cannabis factory, a Vietnamese named Tam, had been seen fleeing the scene. He was traced and arrested. He subsequently pleaded guilty to cultivation of cannabis. 9. At 6.15 am a VW Caddy van arrived. Bowthorpe was the driver. Brandon was in the van pretending to be asleep. Both were arrested. The destination on the van’s satellite navigation equipment was 49 Magyar Crescent. Bowthorpe was in possession of £1,100. He lied in interview. Brandon said nothing. Cameras on the motorway revealed that the Vivaro and the Fiesta had travelled to the address in convoy. Bisset was arrested at his home in East London on 5 November where officers found a tracking and jamming device and a machete on which were traces of cannabis. Also found was a sim card registered to his address which proved contact between Bisset and Brandon. 10. Each of those arrested had a mobile telephone and evidence of calls and messaging supported the proposition that each was an active conspirator. 11. It was plain that there had been a planned raid on the cannabis factory, the guardian driven off and the cannabis harvested. Bowthorpe and Brandon had come to assist. The conspirators had only been thwarted by the arrival of the police. 12. The investigation was widened and produced evidence linking these appellants to other cannabis factories some of which had been the subject of attack. In the early hours of 9 June 2008 police were called to 75 Slade Road, Clacton. It was a cannabis factory. No one was present but there were blood stains on the floor. Near the premises police found Atkins driving a Vivaro van. It was the same vehicle that was subsequently to be used in the attack on 41 Magyar Street. Atkins was arrested and his mobile phone was seized. An officer rang the last missed call and, pretending to be Atkins, arranged a meeting. It was Scott Allan driving an Audi motor car who turned up. That car was registered to May and blood staining was found inside it. The blood staining in the house and in the car came from May. An injured Vietnamese man was found nearby but after treatment in hospital he disappeared. Another Vietnamese was arrested and convicted of cultivating cannabis. Atkins was later to tell the police that May had been injured by the Vietnamese guardians of the factory. 13. A cannabis factory was found at 47 Beach Road, Eastbourne in June 2008. A bloodstain was found on the mantelpiece which was proved to emanate from Gilani. 14. Another cannabis factory was found at 48 Lower Road, Beeston and enquiries led from that address to other factories at 166 Station Road and 61 Hunter Road, Beeston and from there to an abandoned cannabis factory at Lenton. 166 Station Road was logged as a destination in May’s satellite navigation equipment. 15. On 28 June 2008 a cannabis factory at 25 Edgwarebury Gardens, Edgware was attacked. The Vietnamese guardians were assaulted and locked up by the attackers. Police enquires led from that address to another cannabis factory at 5 Kinross Close, Edgware which had been used for the cultivation of cannabis but was in the process of being dismantled. This address was logged as a destination on May’s satellite navigation equipment and Gilani’s DNA was found on a cigarette end recovered from the premises. 16. On 7 July 2008 a substantial cannabis factory was found at 191 Nutbeam Road, Eastleigh. This address was logged as a destination on the satellite navigation equipment in Bowthorpe’s van. 17. On 15 July a burglary in progress at 5 Clovelly Avenue, Newcastle was reported. By the time police arrived there was no one present but the premises had obviously been used to grow cannabis. This address was logged as a destination in Bisset’s satellite navigation system. 18. In October that year an abandoned cannabis factory was found at 12 Finedon Road, Wellingborough. This address was logged as a destination in May’s satellite navigation system and details of another abandoned cannabis factory in Birmingham were found in May’s diary. 19. Scott Allan and Donovan were involved in an attack on a cannabis factory in Great Yarmouth and on Allan’s mobile phone police found video footage of an attack on another cannabis factory which showed the guardians being mocked and the removal of the cannabis. In Allan’s satellite navigation system was the address of another cannabis factory in Wiveliscombe. 20. In April 2008 Brandon, Bisset and May were stopped near Luton and found to be in possession of pruning shears, gloves and a crow bar. 21. There were also links to premises in Scotland. The prosecution case was, and still is, that these appellants were parties to a sophisticated and extensive conspiracy to acquire and distribute cannabis. 22. The Judge had tried Atkins and Bowthorpe so had heard the evidence against them which naturally included much of the evidence against these appellants. In addition he had been provided with a schedule of agreed facts, a full prosecution opening note from that trial, a summary of the prosecution case and finally a document entitled ‘Defendant Involvement Summary. Mr Duck who led for the prosecution then as he does now opened the case before sentence. 23. The prosecution case is succinctly put in the Summary: “The Prosecution contends that the above named defendants are each a party to a sophisticate conspiracy to supply cannabis having stolen the product from the original cultivators. The system adopted by the defendants is simple- they discover the location of cannabis factories around the UK and carry out raids upon those premises. The individuals responsible for guarding the cultivated cannabis are overcome with violence and appear to flee the premises- sometimes having been badly injured by those responsible for the raid.” 24. In the full ‘Opening Note’ the prosecution referred to the different roles played by those party to a conspiracy. They asserted that Atkins and Bowthorpe, whilst not being senior players, had played a very significant role. The ‘generals’ were alleged to be those named as the other conspirators on the Indictment, that is these appellants - none of whom was present, having pleaded guilty. 25. When Mr Duck opened the case, the Judge having indicated that he did not need the case opened as against Donovan, Atkins and Bowthorpe, asked if there was anything to distinguish the roles played by these appellants. Mr Duck replied, “Precious little”. 26. Gilani was the only defendant who had put in a written basis of plea, in which it was asserted that Gilani took no part in the planning and organisation of the offence. The Crown did not accept it. His Counsel, Mr Sutton, raised the basis of plea when he began mitigation, urging the Judge not to sentence his client as an organiser of the conspiracy. The Judge asked Mr Duck “Is that your case ? That he is not a manager ?” Mr Duck replied, “I’m in no position to say, but clearly anybody who goes by this enterprise knows of its nature, but I can’t say he was the orchestrator of it.” The Judge pressed him as to whether Gilani’s position in the hierarchy was any different from the others. Mr Duck said, “It’s frightfully difficult to distinguish .... I can’t categorically put them in rank.” 27. There followed an exchange between Mr Sutton and the Judge in which the Judge made it clear that it was for him to decide what role was to be assigned to any defendant based upon the evidence already before him unless there was to be a Newton hearing. Mr Duck and Mr Sutton then advanced their respective viewpoints. The prosecution position was finally put in these terms: “...one can only in fact rely on the evidence .... I’m prepared to acknowledge he was not someone who sat down and organised and orchestrated this.” That satisfied Mr Sutton whose client had always admitted the facts upon which the prosecution case was based and he went on to stress that his client was not a planner nor an organiser. 28. Before the exchange which we have just outlined, counsel for the other appellants had advanced their mitigation. On behalf of Brandon, Mr Smith argued that his client had not been involved in the violence and that, whilst it might be found that his client had recruited Bowthorpe and another to the conspiracy, his role was no more than a foot soldier. 29. Miss Middleton on behalf of Bisset asserted that he was merely a driver paid £50 per trip, that he was not involved in the violence nor in the distribution of the cannabis. Mr Offenbach on behalf of Allan argued that Allan was involved at a low level and that he had not been involved in the violence either. Mr Jobling invited the Judge to sentence his client, May, on the facts which did not prove that he was involved either in violence or organisation. 30. We note that after the Judge heard the mitigation for Brandon, Bisset, Allan and May those defendants were remanded to the cells so did not hear what was said on behalf of the others, particularly Gilani. In our view, short of extreme circumstance or voluntary absence, each defendant should be present throughout the hearing. We can see no justification for removing those defendants from the Court at that stage. 31. When the Judge sentenced, he said this: “I am satisfied that the object of the conspiracy was to supply cannabis in two ways: firstly by stealing any cannabis plants which you found and secondly to facilitate the establishment of other factories by stealing the growing equipment as well. I cannot see any other conclusion to come to than that and I am told that growing equipment was taken from 6 addresses which you raided. Nothing has been said by your Counsel about how this conspiracy operated; nothing meaningful has been said on your behalves about your roles in this conspiracy and I have, therefore, had to draw my own conclusions from the evidence which I have read and the evidence which I have heard because there was a trial. I have concluded that this was a huge enterprise. You had to have mixed in criminal circles to enable you to discover the locations of the cannabis factories and you must have had the necessary outlets for what you stole and you went prepared to use force, and you did use force, to ensure the success of your enterprise. It was sophisticated and well planned but of those before this court, you are the prime movers ...” 32. Each appellant has advanced a number of grounds of appeal, some more cogent than others, but common to each appellant are two: i) That the Judge’s starting point of 12 years was too high for a conspiracy to supply a Class C drug and ii) That the Judge was wrong to sentence on the basis that each was a prime mover. 33. That violence or the threat of violence was to be used to implement the conspiracy must have been appreciated by those involved more than casually in this conspiracy. It is common knowledge that those who run cannabis factories do not leave them unguarded. In our judgement the indictment should have reflected the three disparate elements of this conspiracy namely: conspiracy to rob, conspiracy to burgle and conspiracy to supply. That would have ensured that any defendant admitting guilt would have been clear as to what he was admitting and the Court would have known exactly on what basis he was to be sentenced. Any dispute between prosecution and defence could have been resolved by a jury. At the least, any defendant pleading would have submitted a written basis of plea as Gilani did in this case. The failure of the prosecution to prefer charges which accurately reflected the evidence led the Judge to select a starting point of 12 years which, whilst it might have been appropriate for the case advanced by the Crown, was too high for a conspiracy to supply a Class C drug which was the offence that the appellants admitted. 34. In the Attorney-General’s Reference No. 22 of 2010 [2010] EWCA Crim 1754 Pitchford LJ having reviewed the relevant authorities said this: “In our view, had CK been a relatively senior member of the distribution chain for 214 kilograms of sub-standard cannabis resin, the appropriate sentence would have been 7 to 8 years after a trial, or five to six years or so after a timely plea of guilty. If, on the other hand, K was to be sentenced as a trusted and paid caretaker of this quantity of drug, the appropriate sentence would have been 5 to 6 years after a trial and 3 to 4 years after a timely plea of guilty.” 35. As to the second point, in this Court we pressed Mr Duck to identify where in the hierarchy of the conspiracy these appellants stood. He was unable to do so. His argument was that these appellants were the conspirators. That does not sit comfortably with his concession that he could not say that Gilani was an ‘orchestrator’ and that he could not distinguish the role of one of these appellants from any other. 36. When it was pointed out by My Lord, the Honorary Recorder of Redbridge, that there was no evidence 1) implicating any of these appellants in the acquisition of the intelligence which enabled the conspirators to target cannabis factories, 2) implicating these appellants in the distribution of the cannabis and 3) of criminal lifestyle, he conceded that others must have been involved and at a higher level. 37. We are driven to the conclusion that the concession that Mr Duck made in respect of Gilani should have been made in respect of each of his co-defendants. 38. It follows that these appellants should have been sentenced on the basis that they were, at the least, enthusiastic foot soldiers in a conspiracy to supply a Class C drug and not as prime movers in a conspiracy to rob. 39. Each appellant has advanced matters of personal mitigation. We have considered them but have reminded ourselves of what Pitchford LJ said in the Attorney-General’s Reference cited above at paragraph 29. “We observe, however, that with the exception of mitigation which went to K’s role in the offence, his mitigation was personal. Personal mitigation is of limited value to an offender who is engaged in drug trafficking for personal gain.” 40. In all the circumstances here we think it appropriate to adopt the approach of the learned Judge and consider no distinction should be made between the appellants on the basis of the degree of their involvement nor their personal circumstances. 41. The appeal of each is allowed and the sentences of eight years imprisonment are quashed. In respect of Allan, May, Brandon and Bisset we substitute a term of four years imprisonment. To reflect Gilani’s early plea the sentence is three years and six months.

2011_04_18-2710.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/1022/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/1022

f8e75c27fcef779c0864084d16a8a646464d9a21878d960edd54a482871585b2

[2011] EWCA Crim 767

EWCA_Crim_767

2011-03-15

crown_court

Neutral Citation Number: [2011] EWCA Crim 767 Case No: 201003617 B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 15th March 2011 B e f o r e : LORD JUSTICE AIKENS MR JUSTICE KEITH MRS JUSTICE THIRLWALL DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A v CHRISTOPHER PAUL LONG - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Compan

Neutral Citation Number: [2011] EWCA Crim 767 Case No: 201003617 B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 15th March 2011 B e f o r e : LORD JUSTICE AIKENS MR JUSTICE KEITH MRS JUSTICE THIRLWALL DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A v CHRISTOPHER PAUL LONG - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7422 6138 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr M Turner appeared on behalf of the Appellant Mr S Brady appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE AIKENS: This is an appeal against conviction by Christopher Long. It is made with the leave of the single judge. On 9th July 2010, before His Honour Judge Greenwood and a jury in the Crown Court at Harrow, the appellant was convicted of entering into or being concerned with a money laundering arrangement contrary to section 328(1) of the Proceeds of Crime Act 2002 . He was sentenced to 18 months' imprisonment. The appellant was also sentenced for a Bail Act offence to which he had pleaded guilty. His total term of imprisonment was 20 months less 111 days spent on remand which the judge ordered to count towards sentence. The appeal relates only to the conviction on the money laundering offence. 2. The facts giving rise to the charge are as follows: in January 2009 an 82-year old man, Mr White, arranged for Mr Phillip Carey, of Town and Country Tree Care, to do work in Mr White's garden at a price of £500. The work was done by Mr Carey's men on 28th and 29th January 2009. Then a man arrived at Mr White's house asking for payment. Mr White gave the man a signed and dated cheque which left blank the amount to be paid and the name of the payee, although it must have been obvious that Mr White was expecting it to be filled in for payment of £500 in favour of Mr Carey's firm. Then, on 30th January 2009, Mr Carey himself arrived at Mr White's house seeking payment. Mr White said that he had already given a cheque to someone from Mr Carey's firm called "Tony", but Mr Carey said that he had not sent anyone around to get payment and did not employ anyone called Tony. Mr Carey doubled checked with his staff. Mr Carey then notified the police of what had occurred. 3. Subsequently the cheque was paid into a branch of Lloyds TSB. It had been completed in the name of "C.Long". In late January 2009 the appellant's account with Lloyds TSB was credited with the sum of £12,000, which sum was at the same time debited from Mr White's account. That sum was then withdrawn from Mr Long's account in nine amounts of £1,200, that being the maximum amount that the appellant was permitted to withdraw from his account in one day. Then smaller amounts were withdrawn until there was only £8.88 remaining in the appellant's account by 17th February 2009. 4. The appellant was arrested and interviewed. In the interview the appellant gave an account that he had in the past allowed people from Ireland who lived in his road to cash cheques using his bank account because, he said, being from Ireland they had no UK bank accounts to use. He said he had thought nothing of this. He agreed that he had previously paid into his account cheques for £10,000, £19,500 and £7,000 in similar circumstances. He said that he had repaid the money to those who had asked him to pay any cheques into his account and he had made no financial gain from the arrangements, although he had hoped, as an unemployed person, to get some work in return. 5. The appellant accepted in interview that he had paid the cheque which was made out to C.Long for £12,000 into his bank account. He described how and where he had paid the cheque and described the van used by the man who had requested that he do it, who was called John Reggie. The appellant said that the bank clerk had asked for proof of where the money had come from and he had given the bank clerk an invoice which had been given to him by the person who had asked him to bank the cheque. The invoice was made out by "T&M Contractors", which was not the name of Mr Carey's firm. 6. At the trial the prosecution case was that the appellant had allowed his bank account to be used to bank the cheque and then he had given the proceeds to others, all knowing or suspecting that this facilitated the acquisition of criminal property, viz the proceeds of a fraud on Mr White by other persons. The prosecution accepted that the appellant was not a party to the original fraud on Mr White. 7. The defence case was that the appellant had cashed the cheque on behalf of acquaintances from Ireland that he knew did not have bank accounts in the UK. The appellant's case was that he had assumed that this had been obtained through a legitimate business as gardeners or roofers. The appellant had cashed cheques for these people on numerous occasions and would not have done this if the money had been obtained through fraud. The appellant's case was that he had not benefited financially from the arrangement but, as in previous instances, had hoped to receive work in return. 8. On the second day of the trial, after the transcripts of the interview of the appellant, including all the questions and answers about other amounts paid into his bank account, had been put before the jury as part of the prosecution case, the judge heard submissions on whether or not further evidence concerning those previous banking transactions should go before the jury. As we understand it, the defence wanted this material to go before the jury, but wished to know the basis upon which that would be done. 9. In his ruling on the issue, the judge noted that the Crown were not alleging that there had been any misconduct by the appellant in respect of those previous transactions. The judge also noted that counsel for the appellant had said that if that was the Crown's stance, he would say nothing more. The judge then said at page 4E-G of his ruling: "In my judgment, this evidence is relevant and admissible to go to knowledge and suspicion at the relevant time. In other words, the fact that he had earlier cashed cheques in large amounts is a matter the jury are entitled to know about and consider when dealing with the question of whether, or that the Crown has proved that in relation to this payment in, he knew or suspected that it was criminal property." 10. The judge also ruled that neither party had contended that those other payments in amounted to "bad character" evidence. That is obviously so as it was not suggested, let alone proved, that they had involved any kind of misconduct on the part of the appellant. However, the judge said that even if the evidence did amount to evidence of bad character, he would have admitted it, although his reason for saying that he would have been so is obscure. 11. The material therefore went before the jury. As we understand it, it went before the jury as part of the prosecution case. 12. The appellant did not give evidence. 13. In his summing-up the judge went through the interview evidence, including the questions and answers on the other transactions, in some considerable detail. The judge also went through in detail the bank statements that were before the jury concerning the payment in and payments out concerning the sums of £10,000, £19,500 and £7,000. 14. The judge told the jury, at page 27C of the transcript of his summing-up, that it was a matter for them to consider the evidence in relation to the other transactions and "to consider the pattern, the differing pattern of where the monies go in relation to these differing transactions". Thereafter the judge carried on reciting in detail from the transcript of the interview of the appellant. The judge's recital of the interview evidence continues until page 44E of the transcript of the summing-up. He then dealt with the cross-examination of the officer in the case who had conducted the interviews. 15. When the single judge granted leave, he said at paragraph 4 of his reasons: "The reasonably arguable ground of appeal is that the judge did not anywhere in the summing-up clearly spell out what the defence really was, namely that you did not know or suspect any illegality. The fact that the case against you was strong, and probably even stronger because you did not give evidence, arguably made it even more important that the judge did, at least once in his summing-up, summarise the defence and in doing so at least mention that there was no evidence before the jury that the earlier transactions were criminal." 16. It seems to us that there are in fact two connected limbs to this ground of appeal. The first is that the judge did not either in his ruling or at any stage properly identify why the evidence relating to the previous transactions involving £10,000, £19,500 and £7,000 was before the jury at all. The Crown did not assert that those were money laundering exercises in which the appellant had facilitated the acquisition of criminal property by others by banking cheques and then giving others cash from his account. So the transactions had no relevance at all to the prosecution's case. The defence was content to let the material go before the jury as evidence that the appellant had performed this kind of service for others before, and, as the prosecution was obliged to accept, those transactions had not been tainted in any way. Therefore, the argument must have run, there was no reason for the appellant to think that the position was any different when he was asked to bank and repay in cash the cheque for £12,000. 17. That leads on to the second limb of the ground of appeal. The judge does not, at any point in his summing-up, tell the jury why they are being invited to consider these transactions at all. Nor was the process of it being introduced to the jury explained to them. As we have said, this material was introduced apparently as part of the prosecution case. The judge does not say that the Crown accepted that these previous transactions were not money laundering transactions. Nor did he say that the Crown accepted that in relation to them there was no question that the appellant was guilty of being a party to a money laundering offence. Nor does the judge explain to the jury that the only reason that those transactions were before them was because it was the appellant's case that he had often banked cheques for others and then repaid them in cash and that here were three examples which the Crown accepted did not involve any criminal activity on the part of the appellant. Nor did the judge say that the jury might regard that as relevant to the appellant's case that, as with the earlier transactions, he had no reason to know or suspect that the request was to facilitate money laundering. 18. In our view, if this evidence of the previous transactions was to be before the jury at all, then they had to be told in clear terms why they were being asked to consider it. Without clear directions upon the lines we have set out above, the jury might simply have thought that they were all evidence that the appellant had engaged in facilitating money laundering before and that the previous transactions was therefore evidence against him, which helped them to decide that the appellant must have known or suspected that the banking of the cheque for £12,000 was facilitating money laundering. 19. As the single judge pointed out, the fact that the appellant did not give evidence made it all the more important that the judge should explain the relevance of the previous transactions. Furthermore, we note that the judge did not either give a good or a bad character direction. That, in our view, made it all the more important to explain to the jury precisely why they were looking at those previous transactions. 20. For these reasons, we think that this conviction was unsafe and that the appeal must be allowed. 21. MR BRADY: My Lord, I wonder if I may have seven days to consider the question of applying for a re-trial. I have not been able to confirm -- I am told that Mr Long has in fact served his sentence. 22. LORD JUSTICE AIKENS: So we understand. 23. MR BRADY: My Lords, I had not been able to confirm that officially, but if that is the position then of course the question does not arise. 24. LORD JUSTICE AIKENS: I do not think there is any question of a re-trial in this case, Mr Brady. Thank you.

2011_03_15-2662.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/767/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/767

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[2004] EWCA Crim 2123

EWCA_Crim_2123

2004-07-30

supreme_court

Neutral Citation Number: [2004] EWCA Crim 2123 Case No: 2003/01936/C3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 30 July 2004 Before : LORD JUSTICE MAURICE KAY MR JUSTICE SIMON and SIR CHARLES MANTELL - - - - - - - - - - - - - - - - - - - - - Between : REGINA Appellant - and - VICTOR DEANS Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Stephen Kamlish QC (instructed

Neutral Citation Number: [2004] EWCA Crim 2123 Case No: 2003/01936/C3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 30 July 2004 Before : LORD JUSTICE MAURICE KAY MR JUSTICE SIMON and SIR CHARLES MANTELL - - - - - - - - - - - - - - - - - - - - - Between : REGINA Appellant - and - VICTOR DEANS Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Stephen Kamlish QC (instructed by The Registrar ) for the Appellant William Davis QC (instructed by Crown Prosecution Service ) for the Respondent Hearing dates : 16 July 2004 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Maurice Kay : 1. On 29 November 1989 in the Crown Court at Birmingham the Appellant was convicted of five offences. Count 1 was an offence of supplying cannabis resin on 1 October 1988. Count 3 was an offence of possession of cocaine and Count 4 an offence of possession of cocaine with intent to supply. Those two offences occurred on 14 December 1988. Count 6 was an offence of permitting premises to be used for the production of cocaine and Count 7 an offence of possession of cocaine with intent to supply. The date in relation to these latter two offences was 23 December 1988. The Appellant pleaded guilty to two counts of possession of cannabis (Counts 5 and 8) and was acquitted of an offence of possession of cocaine with intent to supply which featured as Count 2 and was an alternative to Count 3. He received a total of 12 years imprisonment from which he has long since been released. This is not the first occasion upon which the convictions have received the attention of the Court of Appeal. On 17 February 1995 an earlier appeal against the convictions was dismissed. The matter now returns to this court following a reference by the Criminal Cases Review Commission under section 9(1) of the Criminal Appeal Act 1995 on the basis that there is a real possibility that the conviction will not be upheld. In a nutshell, the basis of the reference is that the Appellant was convicted entirely on the evidence of police officers some of whom have subsequently been discredited. We now summarise the evidence at trial. 2. 1 October 1988 (Count 1) On 1 October 1988 police officers from the West Midlands Police Central Drug Squad were conducting observations at 15 Mayfield Road, Handsworth. The officers who gave evidence in support of Count 1 included Detective Constable Robotham. A witness statement of Detective Constable Breakwell was also read to the jury. A number of officers gave evidence that the Appellant was seen to enter 15 Mayfield Road at 9.45.a.m., to leave the premises at 12.20.p.m. and to return at 2.25.p.m. At 3.30.p.m. a black Fiat motor car parked near the premises and the female passenger (Ms. Stevie Gray) left the car and called at 15 Mayfield Road. A man identified by four police officers as the Appellant opened the door and invited her in. Four or five minutes later the Appellant and Ms. Gray came to the door and he gave her a black bag in exchange for what appeared to be money. She returned to the car which was driven away by Mr. Anthony Castor. The car was followed by a vehicle containing Detective Constable Robotham and Detective Sergeant Hopkins. A later part of the journey was observed by Detective Constables Breakwell and Nix. In due course the car was driven onto the M6 where it was stopped by Police Constables Hughes and Haines. Mr. Castor and Ms. Gray were arrested. When the car was searched at the police station, Detective Constable Breakwell found two blocks of cannabis resin. Smaller amounts of cannabis resin were found on the person and in the clothing of Mr. Castor and in the police car. There is no doubt about the criminal involvement of Mr. Castor and Ms. Gray. She subsequently pleaded guilty to and he was found guilty of possession of cannabis resin with intent to supply. The Appellant’s defence was that he was not the man at 15 Mayfield Road and that the officers had fabricated evidence against him because he had pleaded not guilty to previous charges of possession of cannabis and cocaine necessitating the senior officer in both investigations, Detective Chief Inspector Parrish, giving evidence at court. Moreover, it was said that Detective Chief Inspector Parrish resented the fact that the Appellant had failed to pass information to the officer about the Appellant’s brother when requested so to do. The Appellant and his girlfriend Ms. Gail Ward-Hales gave evidence of a conversation on 4 October between the Appellant and police officers, including Detective Constable Davis, in the course of which Detective Constable Davis had said that the Drug Squad were going to plant drugs on the Appellant. The evidence of the officers was that there had been a conversation but it involved only “friendly banter” and had not included a threat to plant drugs on the Appellant. Ms. Gray gave evidence for the defence. It was to the effect that at 15 Mayfield Road the man she had seen was not the Appellant but another man called Walsh. The purpose of the visit had been to discuss the legitimate sale of leather wear to Walsh. She said that upon leaving 15 Mayfield Road the car had travelled to the Acapulco Club in Barker Street and that it was at that location where the drugs found in the car had been obtained. She refused to name the seller of the drugs because of fear for her safety and the safety of her children. Ms. Ward-Hales gave evidence to the effect that the Appellant had slept at her house on the night of 30 September and had remained there until she left between 12 and 12.30.p.m.. She had returned between 5.00.p.m. and 6.00.p.m by which time the Appellant had left. 3. There were a number of unusual features about the evidence of events on 1 October 1988. No contemporaneous record or log was maintained of the observations by any of the police officers who gave evidence. The officers maintained at trial that their recollections were first written down about a week later but those written recollections were never produced. It seems that the first documents giving accounts of the observations which were seen by the defence were in statements from some of the officers made at the end of February and at the beginning of March 1989. Moreover, three days after 1 October Detective Chief Inspector Parrish, Detective Constable Davis and Detective Constable Robotham carried out a search at 15 Mayfield Road. The Appellant was present on that occasion but they did not arrest him or refer to the observations of 1 October. Nor was he questioned about them in the initial interview following his arrest on 14 December. No allegations about 1 October were put to him until an interview on 16 December. 4. 14 December 1988 (Counts 3 and 4) A number of the officers who had been involved in the events of 1 October were also involved in the search of a flat at 27 Soho Avenue on 14 December 1988. They included Detective Constable Robotham, Detective Constable Breakwell and Detective Chief Inspector Parrish. The understanding of the officers was that the Appellant was living at 27 Soho Avenue on 14 December. He was certainly present on that occasion but his evidence was that the flat belonged to his cousin and that he was merely visiting. In addition to the Appellant, Ms. Erica Gibbs was also in the flat when the police arrived. That was about 8.00.a.m. Detective Constable Robotham and another officer attempted to force entry with a sledge hammer. A door panel was broken and Detective Constable Robotham gave evidence that he could see the Appellant and Ms. Gibbs leave a bedroom and go into the kitchen. When the officers entered the house, Detective Constable Robotham was the first to enter the kitchen. His evidence was that he there saw the Appellant standing at the sink with Ms. Gibbs slightly behind him. They were both facing the sink and the tap was running. Detective Constable Robotham presumed that the Appellant was trying to dispose of drugs by pouring them down the sink. The officer’s evidence was that the Appellant looked at him, backed away towards the fridge and put his left hand behind the fridge. The officer approached the Appellant and grabbed his left wrist saying “Drug Squad. Give me what’s in your hand”. The Appellant struggled, Detective Constable Robotham punched him on the chin and the Appellant opened his hand. Detective Constable Robotham said that he then removed from the Appellant’s hand a polythene bag containing yellow crystals which were later identified as half a gram of crack cocaine. Detective Sergeant Hopkins gave evidence supporting Detective Constable Robotham’s account of the recovery of that exhibit from the Appellant. Detective Constable Flaherty also gave evidence about the incident. It included an account of seeing the Appellant crouching in the corner by the fridge. Detective Constable Flaherty was acting as exhibits officer and it was to him that the relevant exhibits were entrusted by the other officers. Detective Constable Robotham said that he and Detective Constable Flaherty then handed the Appellant over to Detective Constable Breakwell in the main bedroom. They returned to the area of the kitchen with Police Constable Keating whilst Police Constable Callow stood in the doorway with Ms. Gibbs. Detective Constable Robotham stated that he and Police Constable Keating pulled the fridge away from the wall and found two bags of white powder behind the fridge. The white powder was later analysed and identified as 26.25 grammes of cocaine. Detective Constable Flaherty said that he saw Detective Constable Robotham and Police Constable Keating move the fridge and expose the two bags of cocaine. Police Constable Keating and Police Constable Callow also gave evidence about the recovery of the cocaine. There was evidence from various officers about the recovery of other exhibits suggestive of drug use and dealing. They included a box of bicarbonate of soda which is commonly used in the production of crack cocaine. A statement of Detective Constable Breakwell was read to the jury. It referred to the recovery of a piece of foil containing traces of powder. It also referred to the recovery of a small piece of cannabis resin from the Appellant’s trouser pocket. The Appellant subsequently pleaded guilty to possession of that item. 5. Detective Sergeant Hopkins and Detective Constable Flaherty interviewed the Appellant on 14 December. The interview was not tape recorded. The evidence of the officers was that they took contemporaneous notes but that the Appellant refused to sign them at the conclusion of the interview. They said that the Appellant was questioned about seventeen kilos of cannabis resin that had been found at 15 Mayfield Road on 4 October, in respect of which Walsh and the Appellant’s daughter had been arrested. The Appellant said it was nothing to do with him. As to the items recovered in the kitchen on 14 December, the Appellant admitted the possession of the crystals recovered from his hand by Detective Constable Robotham and said that it was just a small quantity for personal use. He said that items recovered from the behind the fridge were nothing to do with him. The evidence of the Appellant was that he was not even asked about the crystals said to have been recovered from his hand or the cocaine found behind the fridge. He further asserted that on 15 December officers including Detective Constable Robotham had taken him to a room and forced him to strip naked in order to induce him to confess to another offence. This was denied by Detective Constable Robotham. It is common ground that the Appellant was interviewed in the presence of a solicitor on 16 December. He made no relevant admissions. When asked about the events of 1 October he said that he could not remember what he had been doing on that day. He made no secret of the fact that he smoked cocaine and accepted ownership of a free basing pipe found in the flat on 14 December. 6. The Appellant’s account in evidence was that his presence in the kitchen was for the sole purpose of obtaining a glass of water from the tap at the sink. He said that he was at the sink when Detective Constable Robotham entered the kitchen and grabbed him by the shirt. The officer swung him into the middle of the room and then pushed him into the corner by the fridge where he began to punch him. The officer said “You bastard you flushed it down the sink”. The Appellant said in evidence that he did not put his hand behind the fridge and Detective Constable Robotham did not remove a bag from his hand. The Appellant had not seen the bag said to have come from his hand before he attended court and was not aware on the day of any allegation that a bag of crystals had been found in his possession. He denied all knowledge of the bags of cocaine from behind the fridge. He said that he had seen bicarbonate of soda in the kitchen cupboard but did not have all the equipment necessary to make crack cocaine because he did not have test tubes or pipes. He accepted that the scales were in the kitchen but alleged that they belonged to another man. He asserted that the documents described as contemporaneous notes from the interview on 14 December were fabricated. He pointed out a discrepancy, namely that whilst the officers asserted that the interview took place between 3.42.p.m. and 4.10.p.m., the custody record had him elsewhere at 4.05.p.m. 7. 23 December 1988 (Counts 6 and 7) On 23 December 1988 the police carried out a raid at premises known as The Blue Mountain Peak in Barker Street, Handsworth. They suspected that the premises were being used as a crack cocaine factory. The Appellant’s brother Neville had been a tenant of the premises from November 1987 until March 1988. The case for the prosecution was that at the time of the raid the Appellant was involved in the management of the premises. The first officers to enter the premises were Detective Constable Robotham, Detective Constable Davis and Detective Sergeant Dipple. They climbed the stairs to the first floor. They alleged that they there saw the Appellant and a man called Stewart behind the bar in the main room. Detective Constable Robotham and Detective Constable Davis claimed to recognise the Appellant. as a result of their previous dealings with him. Detective Sergeant Dipple had no such previous dealings but was certain that the person who was arrested shortly afterwards was the person he had seen behind the bar. 8. Detective Constable Robotham said that he was the first officer to enter the premises. He stated that he ran up the stairs and around a wooden partition into the main room and was there able to see the Appellant and Stewart behind the bar. Detective Constable Davis and Detective Sergeant Dipple said that they saw the Appellant through the bannister. Detective Constable Robotham said that Stewart ran off towards a staircase and he gave chase following Stewart into the pool room. Detective Constable Davis said that when he reached the main area in front of the bar the Appellant had moved into the area of the access hatch to the bar and was holding a black bin liner. He proceeded to make his escape through a hole in the wall, throwing the black bin liner back towards the access hatch. Detective Constable Davis said that he followed the Appellant and shouted to officers behind him to recover the bin liner. Detective Sergeant Dipple also said that the man he later identified as the Appellant had come from behind the counter and had thrown a plastic bin liner towards the bar area as he exited the room through a hole in the wall towards the pool room. Another officer saw a West Indian man throw a black bag and he heard Detective Constable Davis shout “grab that bag”. Another officer, Detective Constable Littller, recovered a black bag and handed it to Detective Sergeant Boughey, the exhibits officer. It was later found to contain 90 grammes of cocaine. 9. The case for the prosecution was that the Appellant had left the premises through a window and had descended to the ground via a corrugated roof where he was arrested by Police Constable Higgins. That officer said that he had been ordered to go down an alleyway between 83 and 85 Barker Street (The Blue Mountain Peak being at 84 and 85 Barker Street). He saw the Appellant climbing off the roof at the rear of The Blue Mountain Peak and dropping into the courtyard. The officer said that the Appellant had come off the roof and was attempting to gain entry to the adjoining property but was unable to do so because somebody inside had shut the door on his arm. At that point Police Constable Higgins arrested the Appellant. There was a difference between Police Constable Higgins and the other officers as to the precise location in the alleyway. This was resolved on the following day of the trial when Police Constable Higgins returned to the witness box to change his evidence which then became consistent with that of the other officers. A number of other men later pleaded or were found guilty in relation to drugs offences arising out of the raid. One of them, Johnson, was found guilty of possession of crack cocaine with intent to supply. 10. The case against the Appellant was that his participation in the management of the premises was apparent from his presence behind the bar and that his involvement with the cocaine was evidenced by the contents of the black bin liner which he had discarded. The case for the Appellant was that he had not been in the Blue Mountain Peak when the police had arrived. He had been drinking in the adjoining premises. Detective Chief Inspector Parrish had seen him and identified him to Police Constable Higgins saying “grab that one”. The identification evidence from within the Blue Mountain Peak was either mistaken or fabricated. The lighting was poor. There was a door located at the top of the stairs which would have obstructed the view of the bar from the stairs thereby preventing the officers who were on the stairs from being able to see who was behind the bar. The only access to the bar was by ducking under the counter. The evidence of the officers that they had seen the Appellant run through a hatch way in the bar counter was impossible. The jury visited the scene at the top of the stairs. There was a door handing off its top hinge in a way which obstructed the view of the bar when the door was open. By the time the jury visited, the bar had been demolished but the defence relied on police photographs which showed a police officer bending in order to duck under the bar to obtain access. The photographs showed a gap under the bar with the bar counter extending over it. Another photograph showed the door at the top of the stairs next to the bar in which it appeared that the top hinge of the door was hanging off. 11. The first appeal It seems that the Appellant did not lodge a timely appeal against conviction. However, on 11 June 1993 he was given leave to appeal out of time and was granted leave to appeal by the full Court of Appeal. The appeal did not embrace the material which is the foundation of the reference to this court by the Criminal Cases Review Commission. The Court of Appeal dismissed the first appeal on 17 February 1995. Giving the judgment of the court Mr. Justice Turner stated: “We are quite unpersuaded that there is in this case a lurking doubt. Were we to do so, we would be rejecting the fundamental basis upon which cases are conducted in the criminal courts, which is to say that the findings of fact are strictly within the province of the jury. What in reality, we suspect, lies at the heart of [counsel’s] submissions is that his client is searching to have a re-trial of his case ” 12. The present appeal The basis of the reference is that certain officers have been discredited since the first appeal. In particular, on 15 December 1997 Detective Constable Robothan was found guilty of discreditable conduct and required to resign from the Police Service. The evidence against him came from another officer who had observed him misappropriating a substance believed to be cannabis from the kitchen of a suspect in the course of a police raid. Detective Constable Breakwell was the subject of a number of disciplinary charges. However, he retired from the Police Service on ill-health grounds before the disciplinary proceedings could be completed. No pleas were ever entered to the majority of the charges and they were left to lie on the file. However, it is significant that the Chief Constable of the West Midlands Police has been interviewed on a BBC Panorama Programme. The interview contained this exchange: “Interviewer: Looking at the case of former of DC Alan Breakwell. Now here was an officer who was potentially facing very serious charges and yet he now gets an indexed linked enhanced pension. What do you think about that? Chief Constable: I am offended by it and I have no doubt that those who know the circumstances around him, police officers serving around him, feel insulted by it and I feel it is an affront to the public. He does receive an enhanced pension and it is absolutely right those arrangements should be in place to look after officers who have been ill or injured performing their duty for the public. But it can’t possibly be right that an officer who becomes ill- genuinely or otherwise- after discovery of serious misbehaviour can be perceived as being rewarded for what he or she did” 13. Of the nine unresolved disciplinary charges against Detective Constable Breakwell, three were charges of discreditable conduct and one a charge of falsehood. The particulars of the latter charge were that he had made false/misleading written statements in a police pocket notebook in that he purported to make occurrence entries therein from 21 November 1988 when in fact the pocket book was not issued until 2 January 1989. In this context it is also pertinent to refer to the case of Fraser (unreported 2 October 2003) in which this court quashed a conviction following a reference by the Criminal Cases Review Commission. Detective Constable Breakwell had been a witness at the trial of Fraser. In allowing the appeal Lord Justice Auld said (at paragraph 19): “But what has emerged so far is sufficiently disturbing, particularly as to D.C. Breakwell’s conduct in other cases, as in the words of Beldam LJ in R v. Maxine Edwards [1996] 2 Cr. App. R 345 at 350 F-G, to raise a suspicion of perjury that infects the evidence in this case. ” The events which gave rise to the trial of Fraser occurred in October 1991. 14. The Criminal Cases Review Commission also referred to disciplinary matters in relation to other officers in the case. Detective Constable Davis admitted allegations that he had given small sums of money and some alcohol to a prisoner in police custody. However the officer left the force before any disciplinary proceedings in relation to those and certain other matters which he did not admit could be concluded. These events occurred in 1998. Detective Sergeant Boughey was found guilty of an offence of neglect of duty in 1994, the neglect or omission dating back to 1990. It concerned failure to enter in the detained property register the fact that he had removed items for transmission to the laboratory. He received a reprimand. 15. It is abundantly clear that the prosecution case against the Appellant depended entirely on the reliability of the evidence of police officers. As the judge put it in the course of his summing up: “Members of the jury, there is a very straight issue for you to resolve as between Mr. Deans and the police: who is telling the truth?…..Either the police are telling the truth or they are lying and lying again. That is something that you must sensible apply your mind to.” 16. The law The question for this court is whether the convictions are unsafe. We are invited to consider what is now known about the police officers on the basis that it is fresh evidence within the meaning of sections 23 of the Criminal Appeal Act 1968 as amended. It is common ground that the approach is as postulated by Lord Bingham of Cornhill in the case of Pendleton [2001] UKHL 66 (at para. 19): “……It will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe.” 17. It is a striking feature of this case that none of the new material existed at the time of the events in October and December 1988 which gave rise to the prosecution of the Appellant. The serious disciplinary offence committed by Detective Constable Robotham took place on 14 March 1997, the disciplinary hearing was on 15 December 1997 and the requirement that he resign was imposed on 7 January 1998. By 1997 he was a Detective Sergeant. The charges against Detective Constable Breakwell were to be heard in June 1998. We do not know all the dates upon which the alleged offences were said to have taken place. However, as we have observed, the allegation of making a false or misleading statement in a police pocket notebook related to 1989. The other allegations appear to date from 1994 and 1995 or later. The reality is that over seven years were to elapse between the laying of charges against the Appellant and the discreditable conduct of Detective Constable Robotham. Moreover, although over nine years after the events of 1998 Detective Constable Breakwell came to be considered an unreliable witness by his superiors, only one of the several allegations against him goes back to a time close to December 1998. This raises the question whether discreditable conduct by police officers years after the investigation which gave rise to the conviction which is under review in this Court, can properly be said to affect the safety of that conviction. It is clear from recent authorities that subsequent discreditable behaviour can affect the safety of an earlier conviction. We have already referred to the case of Fraser where the events which gave rise to the trial occurred in October 1991, the trial took place in November 1993 and Detective Constable Breakwell’s fall from grace occurred sometime after that. Lord Justice Auld said (at paragraph 20): “In the circumstances it would, as the prosecution concede, be impossible for the court to be confident, that, had the jury known of these matters, they would have been bound to convict him. That is so notwithstanding that some of the matters and information about them post date the trial of the Appellant, since, if it had been available at the time, it would have been material to the jury’s consideration of the officer’s credibility, as the court held in Twitchell [2000] 1 Cr. App R 373.” 18. Twitchell had been convicted in 1982 . The Criminal Cases Review Commission referred his appeal to this Court in January 1998. The catalyst was a successful civil action brought by another man Treadaway against the police. It was in April 1994 that Treadaway established in his civil proceedings that one or more of the same officers had acted discreditably in dealing with Treadaway in 1982. In other words, the officers had misbehaved in their dealings with Treadaway at about the same time as the investigation into Twitchell but hard evidence in the form of the outcome of Treadaway’s civil action did not become available for a further twelve years. It was two years after his success in his civil action that Treadaway’s convictions were quashed by this Court on 18 November 1996. In Maxine Edwards [1996] 2 Cr. App. R 345 the events which gave rise to the prosecution occurred in September 1990, the trial resulting in conviction ended in July 1991 and the discreditable conduct of the relevant police officers in relation to other suspects had occurred in 1990 and 1991. It was not until February 1995 that the case was referred back to this Court. 19. What can be taken from these cases is that, to put it at its lowest, discreditable conduct on the part of relevant officers occurring after, the events giving rise to the conviction under appeal can affect the safety of that conviction. 20. Another theme apparent in the recent authorities is that this court has been willing to accept that the proven serious misconduct of one or more officers in another case can place question marks over the evidence of other officers from the same squad against whom no adverse findings have been made. Thus, in Maxine Edwards Beldam LJ said (at page 350F): “Once the suspicion of perjury starts to infect the evidence and permeate cases in which the witnesses have been involved, and which are closely similar, the evidence on which such convictions are based becomes as questionable as it was in the cases in which the appeals have already been allowed.” 21. In Guney [1998] Cr. App Rep. 242 at page 253 Judge LJ referred to “a fairly consistent approach by the Court of Appeal in cases where police officers from a particular squad or force have been proved to misconducted themselves. If one of these officers has given incriminating evidence, then the conviction has frequently been quashed whether or not that evidence appears to be supported by other officers whose credibility has not been impugned in the same way.” In Martin, Taylor and Brown (unreported 12 July 2000) Henry LJ said (at paragraph 13): “In practice the precise surgical division between impugned and unimpugned evidence is seldom possible once the jury have experienced what advocates have called the ‘stench of corruption.’” 22. The authorities to which we have referred so far are ones in which appeals were allowed and convictions quashed. It goes without saying that each case turns on its own facts and the specific material produced to this Court. A case falling on the other side of the line is Jamil [2001] EWCA Crim. 1687 . Interestingly it centred upon the evidence of the same Detective Constable Robotham who was “a central figure” in the search of two premises in relation to which he acted as exhibits officer. Judge LJ said at paragraph 39: “We turn to the disciplinary finding. The officer was found guilty in December 1997 on a charge relating to a search carried out by him in 1997, that is years after the events with which this case is concerned. The evidence against him was that he had, in effect, misappropriated two or three ‘skunk cannabis heads’ said by him to be required for training purposes.. He was required to resign. [Prosecuting counsel] makes the point that all times DC Robotham was accompanied by others including, when he returned, a civilian photographer and that tamper proof exhibit bags were used by the police. Having had the advantage of a thorough analysis of the case we take the view that this finding does not undermine the safety of the conviction.” The events giving rise to the conviction in that case occurred in April 1988. 23. The case for the Appellant In this second appeal Mr. Kamlish QC on behalf of the Appellant has wisely concentrated on the discreditable conduct of police offices, acknowledging that other shortcomings in the evidence adduced by the prosecution at trial have already been considered by this Court when dismissing the first appeal in 1995. He does not abandon the points then made. His submission is that, to the extent that they were rejected, the position might have been different if the Court on that occasion had known of the discreditable conduct. So far as that is concerned, he focuses on the conduct of Detective Constable Robotham, Detective Constable Davis and Detective Constable Breakwell. His submission is that in a case which depended wholly on the evidence of police officers and in which the defence involved allegations of fabricated and planted evidence the discreditable conduct strikes at the heart of the safety of the convictions. The Case for the Respondent 24. Mr. Davis QC submits that the discreditable conduct did not arise for several years after the events of which this case is concerned and, moreover, when the role of the discredited officers in this case is subjected to detailed analysis, it becomes clear that the safety of the convictions has not been undermined. Discussion 25. We consider first the position of Detective Constable Breakwell. It is impossible to escape the conclusion that since 1997 or 1998 this officer has been viewed by the Chief Constable and the Crown Prosecution Service as being not worthy of belief as a witness. As we have observed, he was condemned in the case of Fraser in which Lord Justice Auld said (at paras 21 to 22): “It is sufficient to say that his conduct in other suspected drug cases has become the subject matter of disciplinary investigations and the alleged irregularities were such as to persuade the Crown Prosecution Service that it would be wrong to proceed with a number of trials and to contest appeals in cases in which he had been an investigating officer, notably in Whelan [1997] Cr. LR 353…..Whilst D.C. Battsford has not been the subject of any disciplinary charges, he featured prominently in the case of Whelan along with D.C. Breakwell, in which it was alleged that he and D.C. Breakwell had planted drugs in houses with which Whelan….was connected. As the Criminal Cases Review Commission put it in its helpful statement of reasons for the reference, it is not possible to be confident that D.C. Battsford is immune from the suspicions of perjury surrounding D.C. Breakwell.” In this regard, we do not forget that at least one of the unresolved charges against Detective Constable Breakwell related to 1989. We do not hesitate to view him as a discredited officer. However, the question arises as to whether his accepted misconduct has particular relevance to the present appeal. He did not give live evidence at the trial of the Appellant. He was a witness in relation to both 1 October and the 14 December. However, in relation to both dates, his evidence was read to the jury as undisputed evidence. As for the later occasion, he was involved in the search at Soho Avenue, in the course of which he recovered a piece of foil with traces of powder from the bedroom and a small amount of cannabis from the trousers of the Appellant. That latter find resulted in the charge of possession of cannabis to which the Appellant pleaded guilty. As to the former occasion, Detective Constable Breakwell was in an unmarked police vehicle with Detective Constable Nix. They saw and followed the Fiat motor vehicle from Victoria Road in Aston via the A38 M and onto the M6 where it was stopped by two other officers. As we have related, the female occupant, Gray, pleaded guilty to possession with intent to supply in relation to the cannabis which was found in the car. The male occupant, Castor, pleaded not guilty to the same offence but was convicted by a jury. Given the absence of dispute in relation to Detective Constable Breakwell’s evidence, the statement of Detective Constable Nix was not even read to the jury. We do not know when Ms. Gray was first considered to be a potential defence witness. However, her account, which was plainly disbelieved by the jury, did not join issue with the evidence of Detective Constable Breakwell. His evidence concerned the later part of the journey from Mayfield Road to the M6. He made no mention of having been in Handsworth, which was the location of the Acapulco Club. Later in this judgment we shall have to stand back and look at the whole picture in the round. For the moment, looking at the evidence of Detective Constable Breakwell in isolation, it simply cannot be said that his subsequent misconduct has infected his contribution to this case. 26. We turn next to Detective Constable Davis. In relation to the events of 1 October, he was one of the officers who identified the Appellant as the man at 15 Mayfield Road who handed the black bag to Ms. Gray. Detective Chief Inspector Parrish, Detective Constable Johnson and Detective Constable Davis all gave evidence to the effect that they recognised the Appellant as a man with whom they were familiar in the course of their duties. Indeed, Detective Chief Inspector Parrish had been a witness in a trial of the Appellant only five days previously. Neither Detective Chief Inspector Parrish nor Detective Constable Johnson have subsequently been discredited. As the Criminal Cases Review Commission point out in the statement of reasons which accompanies this reference, if the evidence of Detective Constable Davis is taken out of the equation “there are still officers who identified [the Appellant] as the man they saw on the doorstep handing the package to Ms. Gray. Two of those officers had seen [the Appellant] before that day. The Judge gave a Turnbull warning on identification, although he suggested that it was recognition rather than identification.” 27. Detective Constable Davis was not involved on 14 December. However, on 23 December he was with Detective Sergeant Dibble and behind Detective Constable Robotham when, according to their evidence, they saw the Appellant behind that bar at the Blue Mountain Peak. It will be recalled that the case for the defence was that the Appellant was not the man behind the bar. At the time he was in adjacent premises. A point came when he with others was standing and watching what was going on outside when he was arrested and mistakenly identified as the man who had been behind the bar in the club. It was suggested that the identification evidence was either mistaken or had been fabricated. 28. Clearly the evidence of Detective Constable Davis was important and was disputed in relation to both 1 October and 23 December. The first question is: Was it undermined by his subsequent misdemeanour? Again we shall return to consider it in the round. In isolation, however, we do not consider that it was so undermined. The matter which he admitted some ten years later involved giving sums of money and alcohol to a prisoner in custody. Standing alone, it is fanciful even to suggest that that might devalue evidence given almost a decade earlier. Detective Constable Davis went on sick leave in about 1999 and never returned to work. There were four other matters against him at the time. They did not go back any earlier than 1998. Although they raised issues of honesty and integrity there is nothing to suggest that he was seen in the light which came to encircle Detective Constable Breakwell or that they approached in seriousness what was alleged against Detective Constable Breakwell and established against Detective Constable Robotham. Neither that which he admitted nor that of which he was suspected nor both together would lead us to conclude that the safety of the present convictions is put in issue. 29. We now turn to Detective Constable Robotham. We say at once that the matter whereby he was discredited was a grave one. For a drug squad officer to steal controlled drugs from the house of a suspect and dishonestly to deny it in the course of disciplinary proceedings is extremely reprehensible. His contribution to the trial of the Appellant was substantial. His testimony in relation to 1 October was limited and unchallenged. It was he and another officer who were in an unmarked car following the Fiat from its exit from Mayfield Road until the point in Aston where Detective Constables Breakwell and Nix took over the pursuit. Although his evidence of that part of the journey was unchallenged, it was later contradicted by the evidence of Ms. Gray with her account of the visit to the Acapulco Club. As we have observed, that evidence was plainly disbelieved by the jury. That is not surprising. Not only was it given by a witness with a list of serious previous convictions; in her evidence she continued to assert the innocence of Castor (who had by then been convicted) and the timings and movements which she detailed in her evidence were massively inconsistent with the evidence of a significant number of police officers. However she came to be a witness for the defence (and she claimed not to know the Appellant at all), the coincidence of her being in possession of a substantial quantity of cannabis with intention to supply at the very moment when the police were asserting that that was precisely what she was doing albeit from a different source, was clearly too much for the jury to stomach. 30. So far as 14 December is concerned, Detective Constable Robotham was undoubtedly the most important prosecution witness. It was he who gave evidence of recovering cocaine from the hand of the Appellant and of recovering the bags of cocaine from behind the fridge. The Appellant denied both. The case for the prosecution was that he admitted the former in interview on 14 December but he denied that part of the interview which was not tape recorded and the notes of which he had refused to sign. Indeed he disputed that notes had been taken. When interviewed in the presence of his solicitor two days later, he certainly denied possession of that cocaine. 31. The Criminal Cases Review Commission considered the recovery of the bags of cocaine from behind the fridge and said: “The Commission considers that it may have been possible that D.C. Robotham was able to plant the drugs found behind the fridge without the other officers realising what he was doing. The Police statements indicate that D.C. Robotham was not in the kitchen alone. However the situation during such a raid would be chaotic and D.C. Robotham was solely responsible for preparing the account in his notebook which was endorsed by the other officers and used a basis for all their statements. Consequently the Commission considers that it may have been possible that D.C. Robotham was alone in the kitchen long enough to plant the drugs. Alternatively, D.C. Robotham may have had the opportunity to drop the drugs behind the fridge while he was in the tussle with [the Appellant] and while he was pulling the fridge out with P.C.Keating without the other officer realising what had happened.” We do not have the benefit of a transcript of the evidence of the police officers. However, in the summing up the judge recounted how Detective Constable Robotham had given evidence that he and Detective Constable Flaherty had led the Appellant into the bedroom and had left him there in the custody of other officers. The summary of Detective Constable Robotham’s evidence proceeds: “I met two uniform officers in the hall, P.C. Keating and WPC Callow…… Flaherty and Keating and I went into the kitchen. WPC Callow was in the doorway with Erica Gibbs. In the kitchen Keating and I pulled the fridge from the wall. It was the first opportunity to move the fridge from the wall…..It is the practice if possible that the suspect is present when there is a search. I had left [the Appellant] in the bedroom with Breakwell. Erica Gibbs and the woman police constable were there. Behind the fridge we found two bags of white powder…..I subsequently signed the label as indeed did Keating and Callow, the uniformed officers and Flaherty and Erica Gibbs. I put the two bags of powder in self sealing bag and sealed it everybody signed it.” The evidence of the other officers as summarised by the judge, was consistent with that. Notwithstanding the suspicion articulated by the Criminal Cases Review Commission, there does not appear to have been any evidence to the effect that Detective Constable Robotham was at any material time in the kitchen without any other officer being there present. 32. So far as 23 December was concerned, Detective Constable Robotham was the first of the officers to climb the stairs in the Blue Mountain Peak. He gave evidence of seeing the Appellant behind the bar, it was a brief sighting before the officer turned his attention to the other man behind the bar, Stewart. However, it was from a better position than that from which Detective Constable Davis and Detective Sergeant Dibble claimed to have their first sight of the Appellant. 33. Pausing there, is the important evidence of Detective Constable Robotham in respect of all three incidents (and particularly the second and third) undermined by his disgraceful conduct in the house of another suspect some nine years later?. In this regard it is instructive to consider the case again of Jamil [2001] EWCA Crim 1687 . There Detective Constable Robotham had been a central figure in the execution of search warrants in 1988, had given evidence as to verbal admissions and the finding of exhibits and, indeed, had acted as exhibits officer. The appeal of Jamil was constructed upon the disciplinary finding against Detective Constable Robotham. We repeat the words of Lord Justice Judge (at paragraph 39): “The officer was found guilty in December 1997 on a charge relating to a search carried out by him in 1997, that is years after the events with which this case is concerned….[prosecuting counsel] made the point that at all times DC Robotham was accompanied by others, including, when he returned, a civilian photographer and that tamper proof exhibit bags were used by the police. Having had the advantage of an analysis of the case we take the view that this finding does not undermine the safety of the conviction.” Thus far there are similarities between Jamil and the present case. Most noticeably, there is the passage of time and the presence of other officers. Whereas a civilian photographer was present during a later period in Jamil, he was not present throughout and to some extent it is relevant that the other people who signed the exhibit label in relation to 14 December included uniform officers and the female acquaintance of the Appellant. We also observe that in Jamil the character of Detective Constable Robotham had been built up positively to the jury. When he was accused of fabricating evidence and planting drugs the prosecution elicited the fact that he had been a police officer for thirteen years and had never been disciplined. 34. Thus far, we take the view that it is appropriate to consider the subsequent misconduct of Detective Constable Robotham in precisely the same way as did this court in Jamil . Is the position any different in relation to 23 December? Once again, looked at in isolation, it is not. We have the impression, gained from the summing up which was (conceded by the Appellant’s previous counsel in the first appeal to be “both full and fair”), that the defence case in relation to 23 December was put at least as much on the basis of mistaken identification as on the basis of fabricated evidence. There were physical features of the scene upon which the defence could and did rely. The Judge gave them every assistance in that regard in the summing up. On the other hand, a substantial quantity of cocaine was jettisoned and the Appellant was arrested within moments a few yards away outside the building. 35. It is now time to stand back and consider the bigger picture. We do not consider that it becomes any more colourful in relation to Detective Constable Breakwell so far as the present appeal is concerned. Nor do we attach any significance to two other officers who featured in the case but in respect of whom Mr. Kamlish makes no real point, notwithstanding minor disciplinary findings against them some years later. Neither those findings nor their involvement in the present case causes concern. We therefore turn again to Detective Constable Davis and Detective Constable Robotham. It is common ground that on 4 October 1988 Detective Constable Davis and Detective Constable Robotham, accompanying Detective Chief Inspector Parrish, conducted a search at 15 Mayfield Road when the Appellant was present. The defence case raised two issues about that occasion. The first was that, notwithstanding the events of three days earlier, none of the officers mentioned 1 October to the Appellant. The second was that, according to the Appellant, Detective Constable Davis said that he or they would plant drugs on the Appellant. Detective Constable Davis and the other officers denied saying any such thing but admitted participating in “friendly banter” with the Appellant on that occasion. It seems that a number of people were arrested arising out of events of 4 October and they included the Appellant’s daughter and the man Walsh whom Ms. Gray had sought to implicate in the events of 1 October. The police were also interested in the Appellant’s brother and there were disputed conversations about him. The Appellant’s girlfriend Miss Ward-Hales supported the evidence of the Appellant about what was said. It will be recalled that one of the criticisms of the police operation on 1 October was that there were no contemporaneous records or log and no witness statements dated prior to lateFebruary 1989. The evidence of the officers was that some of them had made witness statements a week after 1 October but the prosecution were unable to produce such documents at the trial.. The defence pointed the figure to Detective Constable Robotham who had responsibility for preparation in relation to the documentation arising out of the events of 1 October. As regards the events of 14 December, Detective Constable Robotham figured in two further aspects of the evidence. The first was that he was the only officer to make a notebook entry after the raid. Other officers who had witnessed part of what transpired in the kitchen, for example Detective Constable Flaherty and Detective Sergeant Hopkins, did not make a separate record but simply endorsed the account in the notebook of Detective Constable Robotham. Secondly, the Appellant gave evidence that on 15 December Detective Constable Robotham was one of the officers who had abused him by taking him to a room and forcing him to strip naked in order to induce him to confess to another offence. This was unequivocally denied by Detective Constable Robotham. 36. Mr. Kamlish submits (and we paraphrase) that the corrupt hand of Detective Constable Robotham and to a lesser extent Detective Constable Davis permeated the fabric of the prosecution case and that if the jury had known in 1989 what we know now about these officers it might reasonably have affected their decisions to convict. In the circumstances the convictions are unsafe. 37. We have given careful consideration to these submissions and to the way in which the case has been set out by the Criminal Cases Review Commission. We deprecate the subsequent misconduct of the officers, particularly Detective Constable Robotham. However in the final analysis we are satisfied that the convictions were and are safe. We certainly accept that police misconduct after the events in issue and after the trial in question can render a conviction unsafe. We also accept that corruption and other reprehensible behaviour by one or more officers may infect a whole investigation notwithstanding the presence of officers against who nothing has been alleged or established. In the present case, however, we attach particular importance to the lapse of time between the events of 1988 and the trial in 1989 on the one hand and the appalling behaviour of Detective Constable Robotham, and to a lesser extent Detective Constable Davis, on the other hand. There is nothing to suggest that either of them acted otherwise than with propriety between 1988 and 1997. We consider it inappropriate to doubt convictions which occurred almost a decade before any known or alleged misbehaviour on the part of these officers. It is clear that the transgressions of Detective Constable Breakwell cover a longer period and go back almost to the time of the events with which this appeal is concerned. However, he was a wholly uncontroversial contributor to the trial of the Appellant. None of his evidence was disputed and no specific allegation of impropriety was made against him. We should add that in none of the cases to which we have been referred was the temporal relationship between the investigation/trial and the subsequent misconduct of police officers in other cases anything like as extensive as in the present case. It sometime happens that many years pass before the misconduct comes to light. The cases of Twitchell (above) and Treadaway (unreported 18 November 1996) are good examples. However, when unearthed, the misconduct was contemporaneous or reasonably contemporaneous with the events in dispute in the appeal under consideration. 38. We make no criticism of the Criminal Cases Review Commission for referring this appeal. It merited the consideration of this court. Having given it that consideration, we are satisfied that the convictions are safe and we dismiss the appeal.

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/2123/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/2123

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[2019] EWCA Crim 2026

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2019-11-14

crown_court

Neutral Citation Number: [2019] EWCA Crim 2026 2019/00213/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday 14 th November 2019 B e f o r e: LORD JUSTICE HOLROYDE MR JUSTICE WARBY and HER HONOUR JUDGE MUNRO QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) ____________________ R E G I N A - v - JOHN ANTHONY BROADHURST ____________________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival

Neutral Citation Number: [2019] EWCA Crim 2026 2019/00213/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday 14 th November 2019 B e f o r e: LORD JUSTICE HOLROYDE MR JUSTICE WARBY and HER HONOUR JUDGE MUNRO QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) ____________________ R E G I N A - v - JOHN ANTHONY BROADHURST ____________________ 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 S Vullo QC and Mr A McGee appeared on behalf of the Applicant ______________________ J U D G M E N T ( Approved ) ______________________ Thursday 14 th November 2019 LORD JUSTICE HOLROYDE: 1. This is a renewed application for leave to appeal against a sentence of three years and eight months' imprisonment for an offence of manslaughter by gross negligence. 2. The applicant (now aged 41) had for a number of months been in a loving relationship with Natalie Connolly, who was aged 26 at the date of her death. They lived happily together with his son and her daughter. It appears that Miss Connolly derived sexual satisfaction from being beaten quite hard. On occasions, the couple engaged in sexual activity which included her being beaten by the applicant. 3. We summarise the facts of the offence as briefly as we can, but it is not possible to avoid mentioning some of the distressing detail. 4. On Saturday 17 th December 2016, the couple drank steadily throughout the day and into the evening. After going out for a meal they returned to their home and continued to drink. They also took cocaine. Both were intoxicated, but Miss Connolly much more so than the applicant. They engaged in sexual activity in an area near the foot of the stairs. At Miss Connolly's request, the applicant hit her on the bottom and the lower back with his hand and then with a boot. He later told the police that he had stopped when he saw a bruise developing. He also struck her breasts with his hand. 5. After this beating, he said, he had at Miss Connolly's request inserted into her vagina a spray bottle containing carpet cleaner. This was a large item with a protruding plastic trigger mechanism. It became lodged in her vagina and the applicant was unable to remove it. He went upstairs to fetch some lubricant. He said that when he returned, he found that Miss Connolly had drunkenly fallen or stumbled and had injured her head. He saw that she was bleeding from the nose and that there was blood on a door and on the balustrade. He described Miss Connolly as having slurred speech and talking "gobbledygook" because she was very drunk. He then applied lubricant to his hand, inserted his hand into her vagina and managed to extract the bottle, but broke parts of the trigger mechanism as he did so. He saw that she was bleeding from her vagina. He did not, however, call an ambulance or seek assistance. He did not even cover her with a blanket. Instead, he left her, almost naked, lying on her back at the foot of the stairs and went to bed. 6. At about 9.23 the following morning, the applicant telephoned the emergency services. He said that he had just woken up and that Miss Connolly was dead. He unsuccessfully attempted CPR until a paramedic arrived and confirmed that Miss Connolly was dead. 7. Post-mortem investigation showed that the level of alcohol in Miss Connolly's blood was almost five times the legal limit for driving. In addition, there was cocaine in her blood. A very experienced defence expert witness said that he had never seen such high levels of alcohol and cocaine together. 8. There was in the case a substantial body of expert evidence. The medical cause of death, for which the prosecution contended, was a combination of the alcohol level and the physical injuries and resultant blood loss. The physical injuries included bruising to the head, a blow-out fracture to the left eye socket, and internal bleeding and tissue haemorrhaging on the bottom and lower back. The insertion and/or the removal of the spray bottle had caused lacerations of the vagina which resulted in arterial and venous haemorrhage. 2 9. The applicant was initially charged with murder and causing grievous bodily harm with intent. He stood trial on those charges. Over a period of about three weeks the jury heard the prosecution evidence and also the defence expert evidence, which was called back-to-back with prosecution expert witnesses. 10. At the conclusion of the prosecution case, the defence prepared to make a submission of no case to answer. The prosecution, however, then indicated a willingness to accept a guilty plea to gross negligence manslaughter. The applicant pleaded guilty to that offence, the particulars of which were that, in breach of the duty of care which he owed to Miss Connolly as his partner, the applicant "left her unsupervised at the foot of the stairs, without contacting the emergency services, in circumstances where there was a risk of death as a result of her condition which would have been obvious to a reasonable and prudent person". That breach of duty amounted to gross negligence, and the negligence was a cause of Miss Connolly's death. 11. The jury, by direction, returned not guilty verdicts on the two counts which they had been trying, and the prosecution offered no evidence on a charge of assault by penetration, which had not been before the jury. The prosecution made clear that, in contrast to the way in which they had presented their case thus far, they no longer alleged that any of Miss Connolly's injuries were inflicted unlawfully. 12. The judge, Julian Knowles J, was fully aware of all the details of the evidence, having presided over the trial. He had evidence in the form of Victim Personal Statements from Miss Connolly's family which made clear their pain and suffering. We, too, have read those statements. On any view, this offence has not only ended one life but has blighted many others. 13. Detailed submissions were made as to the application of the Sentencing Council's definitive guideline for sentencing in cases of gross negligence manslaughter. The prosecution submitted that the case fell into category B on the basis that "the offence was particularly serious because the [applicant] showed a blatant disregard for a very high risk of death resulting from the negligent conduct". They submitted, however, that the judge should not find that the case also fell into category B on the basis that "the negligent conduct was in the context of other serious criminality". 14. The defence submitted that the case fell into category D and that the category B factor on which the prosecution relied was not made out. They argued that the verdicts which had been entered were only consistent with the applicant having committed no unlawful act, and that he had engaged in no criminality beyond the admitted offence of gross negligence manslaughter. That offence, it was submitted, consisted of a failure by the applicant over a period of only a few minutes, when he was heavily intoxicated, to appreciate Miss Connolly's condition and call for an ambulance. 15. In his detailed and careful sentencing remarks, the judge accepted that some of Miss Connolly's injuries may have been caused as she drunkenly stumbled around. He also accepted that, notwithstanding her intoxication, Miss Connolly had consented both to being beaten and to having the spray bottle inserted into her vagina. He found, however, that the applicant had caused most of the injuries to Miss Connolly's breasts, bottom and lower back which, in the light of the medical evidence, he found to be actual bodily harm of quite a serious type. 16. On the authority of the decisions in R v Brown [1994] 1 AC 212 and R v BM [2019] QB 1 , the judge held, rejecting defence submissions to the contrary, that Miss Connolly could not in law consent to that injury. He found, accordingly, that the applicant's failure to call for assistance was negligence which took place in the context of other criminality. Miss Connolly's need for help arose in part because the applicant had unlawfully injured her. 17. The judge went on to say (at page 8B of the sentencing remarks): "Even if I am wrong about that and these injuries were not unlawfully inflicted, beating her in the way that you did, in the condition that she was in, so as to cause injury, lawful or not, is not something which I can properly leave out of account in determining the proper sentence. To do so would, it seems to me, ignore a cogent factor." 18. So far as the inserting of the spray bottle into the vagina was concerned, the judge accepted, on the basis of R v Slingsby [1995] Crim LR 570, that it was not an unlawful act. It was, however, grossly irresponsible conduct by the applicant and carried a high degree of risk. The judge added that when the applicant removed the bottle, breaking it and inflicting further injury as he did so, he saw that Miss Connolly was bleeding from her vagina and it must have been apparent that he had injured her internally. He said: "… yet you left her and went to bed. Your plea is an admission that you left that badly injured young woman to die in the saddest and most avoidable of circumstances." 19. The judge accepted that the applicant's decision to go to bed was one taken in an intoxicated state. But he rejected the assertion that the applicant had left Miss Connolly at the foot of the stairs because he thought it was "just another heavy night" and that she had been in a similar condition previously, without any problem. 20. The judge went on to say that Miss Connolly's state of intoxication added to her vulnerability and so increased the grossness of the applicant's negligence in failing to call for assistance. The judge pointed out that there was no prospect that Miss Connolly would herself summon the necessary assistance. 21. The judge reminded himself that the guideline states that in assessing culpability, the court should avoid an overly mechanistic application of the listed factors, particularly in cases to which they do not readily apply. In relation to the two specific points which had been discussed, he concluded, first, that the negligence had been in the context of the applicant having caused actual bodily harm of a serious type, but "was not quite the type of serious offending contemplated in category B". Secondly, he concluded that the applicant had shown blatant disregard for a very drunk and injured woman whose need for medical treatment was obvious, but may not have appreciated that, without treatment, she was at a very high risk of dying. His overall conclusion (set out at page 10H to 11B of the sentencing remarks) was as follows: "Category C of the guidelines applies to those cases where the offender's culpability falls between the factors as described in the high category, category B, and the lower category, category D. In my judgment, that is the situation here. Your case is not clearly within category B, but I do not accept the submission that this is a category D case. You were very significantly responsible for causing or permitting Natalie to get into the position whereby she needed medical help which you failed to summon in circumstances where her need for help was obvious. The features of this case that I have identified and the two criteria I have discussed, to which I have had measured regard, mean that your case is properly placed towards the upper end of category C." 22. Category C has a starting point of four years' custody and a range from three to seven years. In the circumstances which we have summarised, the judge moved upwards from the starting point to a sentence of five years and six months. He identified the aggravating factor of the applicant's intoxication, though warned himself against double counting in this regard. He treated the applicant, for sentencing purposes, as a man without previous convictions, and he took into account his general good character. He also took into account a number of matters of personal mitigation which had been advanced, including the applicant's remorse, his love for Miss Connolly, his plans for their future together, and his role as carer for his son. The judge treated the aggravating and mitigating factors as balancing each other out, gave full credit for the guilty plea, and so arrived at the sentence of three years and eight months' imprisonment. 23. In their written and oral submissions, which have been presented with great care, thoroughness and skill, Mr Vullo QC and Mr McGee argue that the sentence was manifestly excessive in length. In summary, they submit that the judge should have placed the case into category D, there being no reason to place it into any higher category. They further submit that, in placing the case at the upper end of category C, the judge started in the wrong category and then increased the starting point by wrongly taking into account the two culpability factors to which we have referred. In this regard, they repeat their submission that any finding of unlawful acts was inconsistent with the verdicts of the jury. They submit that the judge was wrong to apply the decisions in Brown and BM to the circumstances of this case. In this regard, they rely on R v Wilson [1997] QB 47 . They go on to argue that, even if the judge was entitled to make a finding that the applicant had unlawfully assaulted Miss Connolly, causing her actual bodily harm, that was not "serious criminality" in the context of the category B factor. Given the entirely consensual nature of the activity, the beating of Miss Connolly should have been left out of account altogether; but the judge wrongly used that as a further reason for placing the case high in the category C range. The judge was also wrong to rely on "blatant disregard" in categorising the case as he did, when the specific category B factor in which that phrase appears had not been made out. 24. Counsel further submit that the judge failed to give due weight to the personal mitigation and wrongly treated the fact that the applicant was himself intoxicated as balancing out all of the matters of personal mitigation. 25. We have reflected on these submissions. Like the judge, we remind ourselves that the culpability factors in the guideline are not to be applied in an overly mechanistic manner. The offence of gross negligence manslaughter can be committed in a wide range of circumstances. The guideline requires that the sentencer must "reach a fair assessment of the offender's overall culpability in the context of the circumstances of the offence". Where a case does not fall squarely within a particular category, adjustment from the starting point for that category may be required before adjustment for aggravating or mitigating features. 26. The judge rightly concluded that the case did not come within category B. He was not then bound to ignore the two factors which had come close to placing the case into that category, and to drop to category D. The guideline states that a factor indicating medium culpability is that "the offender's culpability falls between the factors as described in high and lower". 27. As to the first of the two factors which have been the subject of particular submissions, the applicant had not acted negligently in the context of other serious criminality. But it was relevant that his actions had contributed to Miss Connolly being in the injured condition which made it necessary for the applicant, in the proper performance of his duty of care, to summon medical assistance. It was, in our judgment, also relevant that, at least to some extent, the applicant had done so by unlawful conduct. In this regard, we are not persuaded that there is any basis on which the judge's application of the principle in Brown and BM can be challenged. It is not, however, necessary for us to decide that point because, in any event, we have no doubt that the judge, in assessing culpability, was entitled to take into account the important fact that the need for medical assistance arose in part because the applicant had himself caused serious injury to Miss Connolly, whether he did so lawfully or unlawfully. We agree with the observation of the judge that to ignore that fact would be to ignore an important feature of the case. 28. As to the second of the two factors, the applicant had not shown a blatant disregard for a very high risk of death, but he had shown a blatant disregard for Miss Connolly's obvious injuries and for the obvious need to summon medical assistance. We are quite unable to accept the proposition, which seems to us to have underlain many of the applicant's submissions, that the judge should have sentenced on the basis that the applicant's gross negligence was of brief duration, partly excused by his own intoxication, and to be assessed on a basis which ignored his own role in Miss Connolly's serious injuries and incapacitated state. 29. At step 2 of the sentencing process, the judge was entitled, and in our view correct, to treat the applicant's intoxication with alcohol and cocaine as a serious aggravating factor. He took into account the personal mitigation. We accept that he might have given greater weight than he did to that mitigation. However, the judge had heard all the evidence over a period of about three weeks, and he was in the best position to assess such matters. 30. In refusing leave to appeal on the papers, the single judge expressed the view that the judge's reasoning cannot be faulted, and concluded that the sentence was not arguably manifestly excessive. 31. Having considered the matter afresh, and notwithstanding our gratitude for the submissions of counsel, we, too, are satisfied that there is no arguable basis on which the sentence could be said to be manifestly excessive. 32. This renewed application is accordingly 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] ________________________________

2019_11_14-4763.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/2026/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/2026

43d49c3d7a3ea88bde163f0d90d4c335c71957fdd21613d014dbf109f4ddf085

[2015] EWCA Crim 44

EWCA_Crim_44

2015-02-04

crown_court

Case No: A4/2014/05509 Neutral Citation Number: [2015] EWCA Crim 44 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Portsmouth Crown Court and Winchester Crown Court Mr Recorder Towler T20137171 U20141320 Reference under Section 36 of the Criminal Justice Act 1988 Attorney General’s Reference No 117 of 2014 Royal Courts of Justice Strand, London, WC2A 2LL Date: 04/02/2015 Before : LORD JUSTICE PITCHFORD MRS JUSTICE SWIFT and THE RECORDER OF CARLISLE - - - - - - - - - - - - - - - - - -

Case No: A4/2014/05509 Neutral Citation Number: [2015] EWCA Crim 44 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Portsmouth Crown Court and Winchester Crown Court Mr Recorder Towler T20137171 U20141320 Reference under Section 36 of the Criminal Justice Act 1988 Attorney General’s Reference No 117 of 2014 Royal Courts of Justice Strand, London, WC2A 2LL Date: 04/02/2015 Before : LORD JUSTICE PITCHFORD MRS JUSTICE SWIFT and THE RECORDER OF CARLISLE - - - - - - - - - - - - - - - - - - - - - Between : Regina Appellant - and - Miles Gregory Balogh Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Jocelyn Ledward for the Crown Stephen Smyth for the Respondent Hearing date: 16 January 2015 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pitchford : The Reference 1. This is an application made on behalf of HM Attorney General for leave to refer to the Court as unduly lenient a suspended sentence order imposed at Portsmouth Crown Court on 31 October 2014 for an offence of rape. The provisions of the Sexual Offences (Amendment) Act 1992 apply to these proceedings and to preserve the anonymity of the complainant we shall refer to the complainant either as “the complainant” or as “GP”. 2. On 18 March 2014 the offender pleaded guilty to a single count of rape, contrary to section 1 of the Sexual Offences Act 2003 . He put forward a basis of plea that, after consideration, was not acceptable to the prosecution. On 7 April 2014 the Crown Court ordered that a Newton hearing should take place to resolve issues of fact. That hearing was held before Mr Recorder Towler on 20 June 2014. Having made findings, the Recorder adjourned the sentence hearing for the completion of reports. 3. On 31 October 2014 the recorder imposed a suspended sentence order comprising 2 years imprisonment with a supervision requirement for the same period. In addition he made a restraining order under the Protection from Harassment Act 1997 requiring the offender for an indefinite period not to make contact with the complainant. The facts 4. The offender was born on 14 May 1986. He is now aged 28 years. The complainant, GP, is a year older. The offender suffers a mental disorder comprising Tourette’s syndrome, obsessive compulsive disorder (“OCD”), attention deficit hyperactivity disorder (“ADHD”), anxiety and depression. He was prescribed medication to alleviate depression and anxiety and anti-psychotic medication to suppress his significant Tourette’s tics. The complainant has a borderline personality disorder whose principal manifestations are anxiety and susceptibility to panic attacks. Both were living independently in 2011. The complainant was in employment; the offender was in receipt of disability living allowance and employment support. 5. In 2007 or 2008 the complainant was in a relationship with her female partner, Zoe. The offender and Zoe were known to one another; they had attended the same school. The offender and GP were introduced. The three young people socialized together from time to time until, in 2011, the relationship between GP and Zoe ceased. The offender and the complainant became emotionally close but the relationship was entirely platonic, the offender understanding that the complainant had no sexual interest in men. However, as the Recorder found, for some time before October 2011 the offender had, without GP’s knowledge, harboured some hope that in time GP would consent to become his girlfriend in the conventional sense. 6. The offender organized a Halloween party at his flat on or about 29 October 2011. Only the complainant and two of the offender’s male friends turned up. All three males consumed a considerable quantity of alcohol; the complainant had work the following day, so she consumed less. The party moved on to the complainant’s house at her invitation. The time came when one of the offender’s male friends went to sleep on a sofa in the living room; the other was offered the second sofa. 7. The following account of events incorporates the findings of fact made by the recorder at the Newton hearing. The complainant invited the offender to share her bed. The offender knew this was not an invitation for sexual activity. They had shared a bed before, purely to sleep. Neither party anticipated or intended sexual activity between them. The complainant went to bed first. She was sleepy. She was wearing pyjama trousers and a T shirt top. There was brief and desultory conversation between them before the complainant turned away from the offender and went to sleep. The second of the male friends had by this stage left the house. The complainant awoke to find the offender touching and kissing her. She said, ‘No’, but this had no effect. The offender proceeded to kiss the complainant about the face and on her thighs. Despite her protests he removed her pyjama bottoms and climbed on top of her. As the recorder found “the obsessive part” of the offender’s personality took over. The complainant struggled and cried out, but the offender placed his hand over her mouth and commenced sexual intercourse with her. During the course of sexual intercourse the offender came to his senses and desisted. He spent 5 – 10 minutes apologizing profusely to the complainant and punched himself while doing so. The complainant made it clear that their friendship was ruined. The offender took his clothes from the bedroom, dressed, woke his friend and left. He told his friend that he had “tried it on” with the complainant. 8. GP telephoned her mother and told her what had occurred. Some while later Mrs P visited her daughter’s home and saw blood on the bed sheet. The complainant decided that she did not wish to report the matter to the police because she felt ashamed, wanted to put the incident behind her and did not want to get the offender into trouble. The following day she went to a clinic for advice and a prophylactic; however, she was not physically examined. Two weeks later she went to hospital for an examination. She said she had been raped by someone known to her but she would not name him. She told treating staff that “a few hours” after intercourse she had started bleeding. The complainant said that her normal period started shortly after that. She was, she said, sore inside and out but that had settled by 9 November 2011. 9. The offender’s behaviour caused him distress and an enduring sense of guilt. Two years later he tried unsuccessfully to make contact with the complainant. After making several telephone calls to the police, he attended a police station on 23 September 2013, taking with him some of his medical records. He was in a state of considerable anxiety. He told the police that he wanted to confess to sexual assault; he thought he needed help. He was arrested at 8 pm. He was booked into the police station and prescribed tranquillisers. The complainant was approached by the police and she made a statement. She confirmed that she had been raped. She said nothing about her invitation to the offender to share his bed. The following day the offender was assessed under the Mental Health Act and judged fit to be interviewed. He was arrested and interviewed in the presence of the duty solicitor and an appropriate adult. He claimed that the complainant had invited him into his bed, had gone to bed topless and had encouraged sexual activity by engaging in consensual foreplay that included the complainant fondling his penis. He claimed that the complainant changed her mind only at the last moment. He realised the complainant was not consenting only after penetration had occurred. 10. It is accepted by HM Attorney General that were it not for the offender’s self report this matter would not have come to light. The proceedings in the Crown Court 11. The offender pleaded guilty on 18 March 2014 but put forward a written basis of plea that adopted the account he had given in interview under caution. The prosecution indicated that the basis of plea was not accepted. On 7 April 2014 the resident judge at the Crown Court, HH Judge Hetherington, directed that a Newton hearing should take place. The hearing was listed before Mr Recorder Towler on 19 June and the evidence was completed the following day. The recorder heard evidence from both parties and other witnesses. He was also provided with reports upon the offender by consultant psychiatrists, Dr Alexis Bowers and Professor Neil Greenberg. He reserved his ruling and on 14 July delivered judgment. The recorder made detailed findings of fact. Although, in the main, he accepted the account of the complainant and rejected that of the offender, he was sure that the offender’s medical condition “impacted on the way in which he behaved that night” (Transcript proceedings 4 July 2014, page 17G-18A). He concluded that the complainant had indeed invited the offender to share her bed for the night; that neither had any intention that sexual activity should take place; that the complainant made it clear at an early stage that she did not consent to sexual activity; but that the offender continued until he came to his senses and withdrew. The medical evidence 12. Professor Greenberg interviewed the offender on 17 October 2013. His report is dated 24 October 2013. Dr Bowers interviewed the offender on 4 March 2014 and her report is dated 5 March 2014. Dr Bowers did, but Professor Greenberg did not, have access the offender’s medical records, although Professor Greenberg was handed copies of information provided in support of the offender’s claims for disability allowance. At interview Professor Greenberg found the offender to be within the normal range of intelligence. He appeared to be distracted at times. He suffered ‘obvious’ tics, both motor and verbal. His vocabulary was good but he had a stutter at times. He was angered and frustrated by his disorder. He had mood changes. He believed himself to be evil and horrible. He admitted to regarding women as sexual objects. He had himself been abused by a 15 year old male when he was aged 6 or 7 years. He had no intention to harm anyone but worried that he might. In Professor Greenberg’s view the offender’s thoughts about women were egodystonic; in other words, he was aware of his thoughts and did not want them. This is characteristic of those who suffer OCD. The offender was a compulsive list-maker and cleaner. His failure to complete his self-allotted tasks caused high levels of anxiety that significantly impaired his quality of life. The offender suffered Tourette’s syndrome, OCD and depression. One of the accompanying symptoms for some sufferers, including the offender, was poor impulse control. 13. Professor Greenberg described the likely presentation of the offender under the stress of giving evidence at court. He would have jerking movements in his limbs, neck and body. [This Court observed these movements during the offender’s attendance at the hearing.] He was liable to blurt out words impulsively and without thought. He could give the impression of rudeness and use bad language. 12. In Professor Greenberg’s view, the Crown Court’s judgment upon the conflicting accounts of the complainant and the offender might have a material bearing upon an assessment of the contribution made by the offender’s disorder to the commission of the offence. If the offender’s account (that sexual activity was consensual until a few moments after penetration had occurred) was preferred the offender’s mental health problems would have made a significant contribution to the offender’s failure to cease intercourse when the complainant told him to stop. On the other hand, if the complainant’s evidence was preferred, the nature and duration of the incident seemed to preclude lack of impulse control as the cause of the offence, although the offender’s poor mental health might be viewed as mitigation. 13. It seemed to Professor Greenberg that the offender’s disorder had not, so far, responded well to conventional mental health intervention. The offender had described a ‘terrible’ quality of life. He thought that the offender should be assessed by a neurologist or psychiatrist expert in Tourette’s syndrome and should receive psychological counselling to help the offender ‘come to terms’ with the long term nature of his problems. The offender had a history of self harm. A custodial sentence would cause a deterioration of his mental health at least in the early stages of the sentence. Professor Greenberg was unable to recommend an order under the Mental Health Act. The offender did not suffer from a mental disorder of such a nature or degree that his detention in hospital for treatment was warranted. 14. Dr Bowers agreed with Professor Greenberg’s diagnosis of the offender’s disorder and also that residential treatment was not warranted. She had access to his medical records. He had received attention from the mental health services from a young age. The history fully supported the diagnosis. At one stage the offender had been prescribed an antipsychotic medication for his tics but had suffered an adverse reaction. The offender had been bullied at school because of his odd body jerks. Once, he had been chased into a field and had responded by removing his shorts to expose himself. He had got into trouble for sexual touching of other pupils at school. On one occasion he had squeezed a girl’s nipples. Before the present offence he had become ‘scared’ of women and of sex. He was prescribed Sertraline for his depression and Quetiapine for anxiety. He had no previous convictions, warnings or cautions. He had after leaving school with three or four GCSEs attended a drama course and an art course. He had obtained work as a shelf-stacker but had not been in employment for 3-4 years. Following his self-report to the police the offender’s mental health deteriorated and he needed a week as a voluntary inpatient at Orchard Adult Mental Health Hospital in Portsmouth. 15. The offender told Dr Bowers that the week before the Halloween party he had watched the film ‘A Clockwork Orange’ that in one scene depicted a male preparing for a sexual assault on a female. The offender had been ‘obsessing’ about the costume he would wear to the party. In Dr Bowers’ opinion, a number of factors may have contributed to the offence. First was his obsessive objectification of women. Secondly, he was disinhibited by alcohol. Thirdly, he had poor impulse control. Dr Bowers also explored the victim’s behaviour as recalled by the offender but her discussion is no longer relevant following the recorder’s findings of fact. 16. Dr Bowers warned that a custodial sentence would result in a worsening of the offender’s mental state. It was likely that the offender would self-harm or worse. A tranquilliser would be needed and his mental disorder would need to be managed. Dr Bowers agreed with Professor Greenberg that a multi-disciplinary approach was required: the offender’s medication should be reviewed to reduce the offender’s motor tics and specialist psychological counselling was required to focus on both obsessive behaviour and impulse control. In Dr Bowers’ view the principal risk was for further sexual touching rather than rape. There had been no previous charge and no repetition of sexual offending. With appropriate treatment and abstinence from alcohol the chances of re-offending would be reduced although not altogether eliminated. It was a good sign that the offender wanted to engage in treatment. Further reports at the sentence hearing 17. At the sentence hearing Mr Recorder Towler was provided with a report dated 19 October 2014 from Dr Julia McLeod, a registered clinical and forensic psychologist, in which she performed a risk assessment. She concluded that there was a moderate risk of further sexual offending. Although theoretically eligible for a sex offender treatment programme it was thought the offender would not be able to cope in view of the extent of his vulnerability. Dr McCleod agreed with Dr Bowers and Dr Greenberg that a custodial sentence would exacerbate the offender’s condition. 18. In a letter of 10 September 2014 to the offender’s general practitioner, Dr Jeremy Stern, a consultant neurologist at St George’s Hospital, London with a special interest in Tourette’s syndrome, also recommended a review of the offender’s medication and referral for cognitive behavioural therapy. Dr Stern was prepared to see the offender as a NHS patient but was unaware of the forensic background. Dr Stroma Macfarlane became (recently following a period of leave) the offender’s Community Consultant Psychiatrist employed by Solent NHS Trust. In a letter of 30 October 2014 she informed the Crown Court that Dr Stern had since confirmed that he could not be of further assistance. Dr Macfarlane could not identify a course of treatment in the community that would at the same time address the question of risk because the offender was unsuitable for a group work sex offender treatment programme. She did, however, express similar fears as to the ability of the offender to cope with a custodial sentence. 19. The recorder was provided with pre-sentence reports from Rebecca Yates dated 4 April 2014 and 28 October 2014. The first was overtaken by events. In her supplemental report Ms Yates confirmed her view that the offender presented a moderate risk for future sexual offending. The risk factors were poor impulse control, alcohol misuse, isolation, lack of support and, thus, emotional decline. Ms Yates recognised that it was highly unusual to be contemplating a non-custodial sentence in a case of rape especially when the victim had been required to re-live the offence at the Newton hearing. However, Ms Yates was aware of the unanimous view of the experts that the offender would struggle to cope in prison in which it was likely that his condition would be made worse rather than better. For this reason she had considered an alternative. The manager of the sex offender group work programme had confirmed that the offender was unsuitable for group work. There was no one-to-one programme available. However Ms Yates pointed out that, should the court be willing to impose a suspended sentence order with a supervision requirement, the offender manager would be in a position to prepare a sentence plan that co-ordinated mental health services, addressed the offender’s risk factors and, in particular, tackled the offender’s underlying attitudes as, in other circumstances, would have been the case in a sex offender’s group work programme. The team was willing to provide the offender manager with support for this purpose. 20. In a victim impact statement GP said that she had been affected by the offence itself but had managed to put it behind her until required to make a statement to the police. The process brought the memory flooding back. She was now prone to panic attacks, particularly at night. She had difficulty making new friends and had a problem with trust. She had commenced a new relationship after the rape but in her opinion its breakdown was in part caused by the investigation. Her depression and anxiety had increased and she was receiving treatment. She had to give evidence in the Newton hearing and that experience had made matters worse. Sentence 21. The recorder accepted that the offence should be placed in category 3B of the sexual offences guideline for rape offences. The starting point was 5 years and the range 4 to 7 years custody. The recorder referred to the impact of the offence on the complainant. He identified no specific aggravating factors as such but listed factors in mitigation as: the contribution made by the offender’s mental disorder to the offence, his lack of maturity, and his self-report to the police. In his view the resulting sentence after a trial would have been in the order of 3 – 3 ½ years imprisonment. He would not be minded to afford any credit for the offender’s plea of guilty since he had maintained an account that had not been accepted at the Newton hearing. However, the recorder accepted the submission of Mr Smyth, for the offender, that section 125(7) of the Coroners and Justice Act 2009 permitted him to depart from the sentencing guideline in order to deal with a mentally disordered offender in the manner that he thought fit in the circumstances. 22. The recorder recognized the risk, particularly of sexual touching, posed by the offender and identified the expert evidence that called for a multi-disciplinary approach to treatment of the offender’s condition. He noted the absence of a suitable sex offender programme either in custody or in the community. However, the pre-sentence report had drawn attention to a package of sessions and treatment that could form part of a supervision requirement attached to a suspended sentence order. The recorder expressed the unanimity of view that custody would have a detrimental effect upon the offender’s disorder. The recorder concluded (Transcript 31 October 2014, page 29E-G): “I am left with the relatively stark choice of imposing a prison sentence of three to three and a half years, in accordance with the guideline, or of taking the view that this is not a guideline case and imposing a suspended sentence of imprisonment with a requirement of supervision. I recognize that it is almost inevitable in cases of rape that an immediate sentence of imprisonment will follow. I recognize the trauma that [GP] has undergone as a result of this offence, though, as I have noted, she is now keen to put the matter behind her and get on with her life. After anxious consideration I have come to the conclusion that this is one of those extremely exceptional cases in which I can disregard the guideline, and that is what I am going to do.” The arguments 23. Ms Ledward, on behalf of HM Attorney General, argues that the recorder was wrong in law to conclude that section 125(7) permitted him, by reason of the offender’s mental disorder, to disregard the sentencing guideline. Section 125(1) permitted him to disapply the guideline only if it was in the interests of justice to do so. The recorder was correct to place the offence in category 3B and the Attorney General would not seek to criticize a sentence of 3 – 3 ½ years imprisonment even though it was lower than the offence range (see below, paragraph 27). There were aggravating features of the offence: (i) the vulnerability of the victim, namely her health problems known to the offender; (ii) the significant impact on the victim; (iii) injury suffered (bleeding) in the course of the rape; (iv) the location of the offence in the victim’s own home; (v) commission of the offence while under the influence of alcohol. Mitigating factors comprised: (i) lack of convictions; (ii) self-report of the offence; (iii) a guilty plea (subject to the Newton hearing); (iv) The offender’s mental disorder, though not linked to the offence itself. 24. Ms Ledward argued that the facts of the present case were not so wholly exceptional that it could be said that the interests of justice required a non-custodial sentence. To the extent that the offender would benefit from the package of measures proposed by Ms Yates, that package could be put in place after the offender had served the custodial part of his sentence and while he was on licence. 25. Mr Smyth, for the offender, maintained that this was the paradigm case for which the saving in section 125(7) was intended. If he was wrong about that, he submitted, the interests of justice test was met. The present circumstances were truly exceptional. The disabilities under which the offender laboured, the exceptional nature of the offender’s feelings of remorse and guilt and his behaviour immediately after the offence demonstrated that the sentence was humane but not unduly lenient. Section 125 of the Coroners and Justice Act 2009 26. Section 125 of the 2009 Act provides: “ Duties of the court 125 Sentencing guidelines: duty of court (1) Every court— (a) must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, and (b) must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function, unless the court is satisfied that it would be contrary to the interests of justice to do so. (2) Subsections (3) and (4) apply where— (a) a court is deciding what sentence to impose on a person (“P”) who is guilty of an offence, and (b) sentencing guidelines have been issued in relation to that offence which are structured in the way described in section 121(2) to (5) (“the offence specific guidelines”). (3) The duty imposed on a court by sub section (1 )(a) to follow any sentencing guidelines which are relevant to the offender’s case includes— (a) in all cases, a duty to impose on P, in accordance with the offence specific guidelines, a sentence which is within the offence range, and (b) where the offence-specific guidelines describe categories of case in accordance with section 121(2), a duty to decide which of the categories most resembles P’s case in order to identify the sentencing starting point in the offence range; but nothing in this section imposes on the court a separate duty, in a case within paragraph (b), to impose a sentence which is within the category range. (4) Subsection (3)(b) does not apply if the court is of the opinion that, for the purpose of identifying the sentence within the offence range which is the appropriate starting point, none of the categories sufficiently resembles P’s case. (5) Subsection (3)(a) is subject to— (a) section 144 of the Criminal Justice Act 2003 (c. 44) (reduction in sentences for guilty pleas), (b) sections 73 and 74 of the Serious Organised Crime and Police Act 2005 (c. 15) (assistance by defendants: reduction or review of sentence) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered to be given) by the offender to the prosecutor or investigator of an offence, and (c) any rule of law as to the totality of sentences. (6) The duty imposed by sub section (1 ) is subject to the following provisions— (a) section 148(1) and (2) of the Criminal Justice Act 2003 (restrictions on imposing community sentences); (b) section 152 of that Act (restrictions on imposing discretionary custodial sentences); (c) section 153 of that Act (custodial sentence must be for shortest term commensurate with seriousness of offence); (d) section 164(2) of that Act (fine must reflect seriousness of offence); (e) section 269 of and Schedule 21 to that Act (determination of minimum term in relation to mandatory life sentence); (f) section 51 A of the Firearms Act 1968 (c. 27) (minimum sentence for certain offences under section 5 etc); (g) sections 110(2) and 111(2) of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (minimum sentences for certain drug trafficking and burglary offences); (h) section 29(4) and (6) of the Violent Crime Reduction Act 2006 (c. 38) (minimum sentences for certain offences involving firearms). (7) Nothing in this section or section 126 is to be taken as restricting any power (whether under the Mental Health Act 1983 (c. 20) or otherwise) which enables a court to deal with a mentally disordered offender in the manner it considers to be most appropriate in all the circumstances. (8) In this section— “mentally disordered”, in relation to a person, means suffering from a mental disorder within the meaning of the Mental Health Act 1983 ; “sentencing guidelines” means definitive sentencing guidelines.” 27. Sub section (1 ) requires the court to follow the relevant sentencing guideline. It introduced a mandatory requirement and compares with the former obligation of the court to have regard to a relevant guideline under section 172 of the Criminal Justice Act 2003 . The statutory exceptions are provided by the interests of justice test in sub section (1 ) and the savings made by subsection (6) (including that a custodial sentence must pass the threshold test provided by section 152 of the Criminal Justice Act 2003 and must be for the shortest period commensurate with the seriousness of the offence as required by section 153 ). Subsections (2), (3) and (4) apply to offence specific and category specific guidelines made in accordance with section 121. The sexual offences guideline is one such guideline. Section 125(3) requires the court to pass a sentence that is within the “offence range”. The offence range for rape is 4 – 19 years (see page 9 of the guideline). Section 125(7) provides that nothing in section 125 shall restrict the “power” of the court under any enactment “to deal with a mentally disordered offender in the manner it considers to be most appropriate in all the circumstances”. 28. It is argued on behalf of the Attorney General that the statutory purpose of subsection (7) was, notwithstanding the guideline, to preserve the court’s power to sentence in a way that ensured the offender was provided with treatment for his mental disorder. Ms Ledward conceded that the subsection was not limited to powers to make orders under the Mental Health Act 1983 . If it was so limited the words “whether” and “or otherwise” would not be present in the bracketed part of the subsection. She agreed that the addition of a requirement for outpatient treatment attached to a community order or suspended sentence order would constitute the exercise of a “power” contemplated by the subsection. She could not accept that the subsection was drawn in terms sufficiently wide to embrace a decision not to impose a custodial sentence upon a mentally disordered offender unless the court’s order made provision for treatment in respect of that disorder. The subsection makes no reference to the general sentencing judgment or discretion of the court. 29. Mr Smyth argued that subsection (7) was limited neither expressly nor impliedly to an order for treatment. The words used were “to deal with” a mentally disordered offender in the “most appropriate” manner. Had the draftsman intended that the saving should apply only to orders for treatment one would expect to find express words to that effect (see, for example, subsections (5) and (6) that are explicit in their terms). 30. We recognise the force of Mr Smyth’s submissions but we conclude that the purpose of subsection (7) is to deal with a particular statutory lacuna. There are no guidelines for dealing with mentally disordered offenders, although several of the guidelines (of which the rape guideline is one) refer to mental disorder as a mitigating factor, particularly when linked to the commission of the offence. The guidelines provide levels of sentencing both custodial and non-custodial (fine, community order, custody). They do not in their terms contemplate an order specifically designed to deal with a mentally disordered offender who requires treatment. In our view, section 125(7) simply expresses what would, arguably, be implicit, namely that the new requirement to follow a guideline is not intended to interfere with the court’s continuing power to pass sentences designed to provide treatment for a mentally disordered offender. It was not, in our view, the intention of Parliament simply to abandon the guidelines in the cases of mentally disordered offenders. There are many mentally disordered offenders who have committed very serious offences and who are not susceptible to treatment. The guidelines apply to such offenders unless the court is contemplating, in an appropriate case, making an order designed to secure treatment for the offender, usually but not always in a residential setting and sometimes subject to a restriction under section 41 of the Mental Health Act 1983 . There was no recommendation in the present case either for a MHA order or for a non-custodial sentence to which a requirement for medical treatment was attached and, in our view, section 125(1) applied. 31. We accept the submission made on behalf of the Attorney General that the rape guideline applied to this offender unless, in the interests of justice, it should have been disapplied. Discussion 32. We have misgivings about the aggravating factors identified by Ms Ledward and the weight to be afforded to them. Both of these young people were vulnerable in different ways. The recorder found that neither of them had sexual activity in mind when they entered the bedroom. Such foresight that the offender had of the consequences of his actions was momentary. In our view, this observation applies equally to qualify the aggravating factors that the offence occurred in the victim’s own home and under the influence of alcohol. In our view, it is not established to a satisfactory standard that the complainant suffered injury in the course of the rape, although we accept that the bleed into the bed sheet, whatever its cause, must have been alarming to the complainant. The recorder accepted that the complainant had suffered distress and a worsening of the symptoms of her anxiety and panic and so does this court. 33. In our judgment, contrary to the assertion made on behalf of the Attorney General, the offender’s mental disorder did have a bearing upon the commission of the offence. The recorder made an express finding to that effect both in his ruling at the Newton hearing and in his sentencing remarks, and we conclude that he was entitled to make it. There were several contributory factors including the offender’s thoughts about women, his regard for and physical proximity to the complainant, his consumption of alcohol and his poor impulse control. In part, these were common environmental factors; in part, they were a product of his disordered mental functioning. We accept, however, that the offender retained primary mental responsibility for his conduct. 34. The most significant of the factors that mitigated the offence was the offender’s immediate and distraught reaction to his behaviour. No doubt this contributed to the complainant’s decision to end the relationship of friendship but not to report the offence to the police. There is little doubt that the investigation would never have taken place but for the offender’s inability to live with his guilt. It was his report to the police that brought the incident to the forefront of the complainant’s mind and caused a renewal of her distress. The Newton hearing was required because the offender gave an account that conflicted with that of the complainant. However, the recorder accepted that the complainant had invited the offender to share her bed with him and concluded that his account of a consensual prelude may have been the result of alcohol consumption on the night of the rape, the lapse of time and the capacity of the mind to believe what it wanted to believe rather than an attempt by the offender to deceive the court. The recorder concluded that the offender should receive no credit at all for his plea of guilty. In our view that was a harsh conclusion in a case in which the act of non-consensual intercourse had been admitted from the outset. A discount of about 20% would, we consider, have been appropriate in the circumstances of this exceptional case. 35. What sets this case apart is the distress the offender himself suffers from unwelcome thoughts, his feelings of guilt and fear of catastrophe, and his almost inevitable mental deterioration if required to serve a sentence of imprisonment. In our view, as we understood Ms Ledward to concede, the recorder would have been justified in concluding that the interests of justice demanded a sentence outside the offence range. While a sentence of 2 years imprisonment (after 20% credit for his guilty plea) might be regarded as somewhat lenient we do not conclude that it is unduly lenient. Indeed, Ms Ledward conceded that it was the decision to suspend the sentence that was of prime concern to the Attorney General. 36. We acknowledge that the recorder was faced with an exceptionally sensitive and difficult sentencing decision. There is no statutory standard of exceptionality that must be reached before a court suspends a sentence of imprisonment. It is a matter for the court’s judgment, usually determined by weighing up the seriousness of the offence, the offender’s antecedents and his personal circumstances. However, for an offence as serious as rape, a suspended sentence order is, as the recorder acknowledged, almost unheard of. Here, the mentally disordered offender overbore the will of his victim and stopped only when the enormity of what he was doing came to him. He was immediately remorseful. Those factors that mitigated the offence and properly reflected personal mitigation were fully factored into the judgment of the appropriate length of the sentence. However, it would appear that the recorder adjusted the length of sentence from 3 years to 2 years solely to enable him to suspend the sentence. That was not the right approach. Only because, in our view, a sentence of 2 years imprisonment could be justified on the facts of the case do we consider that it is appropriate to examine the factors relevant to suspension. 37. Ms Yates was able to present to the recorder a means by which the risk presented by the offender could be challenged and managed in the community. The offender was living with his mother. He had family support. His offender manager could put together a package of requirements, including one-to-one sessions to address his distorted thinking about women, that would reduce his risk to the community. As Ms Ledward pointed out, this did nothing to address the public interest in punishment for the offence. While there might be a temporary deterioration in the offender’s mental condition, the same package could be made available to the offender once he had served the custodial part of his sentence. On the contrary, Mr Smyth submitted that, having seen and heard the offender and the complainant, the recorder was entitled to take the course he did. It had the effect of reducing risk and preventing an inevitable collapse in the offender’s condition. 38. In our judgment, there were grounds for suspending this sentence of imprisonment but it is doubtful whether they were adequate to justify suspension. This was, notwithstanding the mitigating factors, a serious sexual offence for which a custodial sentence was required. It seems to us that the offender himself was aware of the grave wrong he had done and was prepared for the consequences. However, events have moved on and we must consider whether it would be right now to require the offender to serve an immediate custodial sentence. Post sentence events 39. The offender manager is Jennifer Humphray. She has prepared a report for this court dated 9 January 2015. We also have information from the offender’s mother, with whom he has been living since his report to the police. Ms Humphray has read the reports and spoken to Dr Macfarlane. Ms Humphray has spent several hours with the offender since his sentence was passed. They meet weekly. He has kept every appointment except one when he was in a state of heightened anxiety following the decision of HM Attorney General to seek a review of his sentence. On that occasion they spoke by telephone. The offender has engaged fully with Ms Humphray in the development of a sentence plan. Ms Humphray has commenced intensive one-to-one sessions confronting the offending behaviour, for which she has the support of the sex offender programme team. In Ms Humphray’s view, the offender remains sincerely remorseful. He is motivated and wishes to explore his behaviour. He expresses appropriate empathy for his victim and continues to experience feelings of guilt. Ms Humphray is aware of the imperfectly understood connection between the offender’s mental disorder and the offence. She is co-ordinating mental health services. The offender’s mental health treatment plan is being reviewed and Mrs Balogh has been informed that the mental health team will adopt a multi-faceted approach to the offender’s disability. He will be seen at outpatients at intervals of 2 – 3 months and his care co-ordinator and support worker will see him monthly. 40. In her conversations with the offender he has acknowledged feelings of sexual arousal and does not wish to experience simultaneous feelings of power or control. In Ms Humphray’s view the fact that the offence of rape was isolated provides an indication of an ability to ‘self-manage’ such feelings. There has been no repetition of lack of impulse control. The MAPP team met in November. Ms Humphray is ensuring a joined up approach to the offender’s management, including the involvement of the offender’s consultant psychiatrist. Ms Humphray would deal in sessions with each of the factors implicated in the offence. The offender has already taken steps to avoid environments in which risk may arise. 41. In Ms Humphray’s view a custodial sentence imposed now would undoubtedly increase anxiety, leading to thoughts of self harm and suicide. If he were to be admitted to prison Ms Humphray would strongly recommend that the offender be held in a health care wing. She confirms that if the court were to order the offender to serve a custodial sentence she would remain the offender manager and their sessions would recommence on his release. If the Court wished to impose further restrictions on the offender it could achieve that by imposing a curfew requirement although the evidence is that the offender seldom leaves the house. Conclusion 41. It is some 12 weeks since sentence was passed. The offender has made a fully committed start to the suspended sentence order. It seems to this court that a rupture of current arrangements could only make more certain serious deterioration in the offender’s condition and put at risk a successful outcome on his release from custody. We accept the opinion of Ms Humphray that the offender has proved himself to be highly and genuinely motivated to make progress. This is, we conclude, the best possible means of reducing risk further. 42. We conclude that the sentence imposed, at the time it was passed, was unduly lenient; accordingly, we grant HM Attorney General leave. However, we do not consider it is in the public interest that the sentence should now be disturbed and we shall take no action.

2015_02_04-3537.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/44/data.xml

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04e9e86b19ee87034100483d9a0a9f2fd86a88eaa5eba1e92b8c28ecf00e7dc0

[2019] EWCA Crim 1282

EWCA_Crim_1282

2019-07-12

crown_court

Neutral Citation No: [2019] EWCA Crim 1282 Case No: 201900509/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday 12 July 2019 B e f o r e : LADY JUSTICE NICOLA DAVIES DBE MR JUSTICE PHILLIPS MR JUSTICE CHOUDHURY R E G I N A v SIMON WHITTLE 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 Cour

Neutral Citation No: [2019] EWCA Crim 1282 Case No: 201900509/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday 12 July 2019 B e f o r e : LADY JUSTICE NICOLA DAVIES DBE MR JUSTICE PHILLIPS MR JUSTICE CHOUDHURY R E G I N A v SIMON WHITTLE 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 J Grefstad appeared on behalf of the Appellant Mr W Cleaver appeared on behalf of the Crown J U D G M E N T (Approved) MRS JUSTICE NICOLA DAVIES: 1. On 7 January 2019 in the Crown Court at Chelmsford, the appellant was convicted of the offence of murder. On 11 January 2019 he was sentenced by the trial judge to imprisonment for life. A minimum term of 20 years was imposed, less days spent on remand. 2. The appellant appeals against sentence with leave of the single judge. The facts 3. Shortly after midnight on 15 January 2018 the appellant murdered Natalie Hastings. Natalie Hastings was engaged to Paul Stanley who had known the appellant for many years. The appellant had stayed at Paul Stanley’s home for some time, but about a month prior to the offence Paul Stanley asked the appellant to leave because of his behaviour. The appellant was unhappy about this and relations between the three became strained. Two weeks after leaving the address, the appellant returned to the property to rob it. He was assaulted a couple of days later, it was thought in retaliation. 4. On 13 January 2018 the appellant was seen sitting in his car outside Paul Stanley’s address at about 10.30 in the evening. 5. Just before midnight on 14 January 2018, Natalie Hastings and Paul Stanley were in Hemel Hempstead High Street speaking to some people in an alleyway. Natalie Hastings was seen on CCTV going to a cash machine on Marlowes, the main thoroughfare. The appellant drove his Volvo motor vehicle adjacent to the cash machine and slowed to a stop. He reversed a little before veering left onto the pavement where Natalie Hastings was standing. His actions caused her to run away. She headed towards a roundabout in an attempt to get away from the appellant, who in response performed a three-point-turn and sped towards the roundabout in pursuit. The appellant then deliberately struck Natalie Hastings with his car and drove over her body, before crashing into Space Lettings, a property adjoining the road. 6. James Whitney was a passenger in the appellant’s vehicle. He heard Natalie Hastings shout to the appellant saying that she had done nothing. The appellant responded: “You’re dead”, before accelerating at speed towards her. The appellant made no attempt to brake or avoid the collision. James Whitney left the car and saw that Natalie Hastings was badly injured. Other members of the public were present. A female asked the appellant if he had run Hastings over. His response was: “Yes, I fucking did”. The appellant did nothing to assist Natalie Hastings who was lying on the ground badly injured. When Paul Stanley found Natalie Hastings he went to comfort her, but the appellant, who uses a crutch, struck Paul Stanley with the crutch in order to stop him getting to Hastings. 7. Shortly thereafter the police and paramedics arrived. A blood sample taken from the appellant at the crash scene showed that he had over 800 milligrams of benzoylecgonine per litre of blood, the specified limit being 50 milligrams. The appellant admitted being the driver of the vehicle but said that he had swerved to avoid a fox. When asked if there had been a passenger, the appellant claimed that another male, not James Whitney, was with him. During the police interview the appellant gave no comment replies, other than to suggest that someone else had been driving. 8. Natalie Hastings was taken to hospital. She sustained extensive bruising to her limbs, a fractured rib, multi-organ failure, traumatic brain injury, multiple pelvic injuries and disruption to the pelvic tissues with associated haemorrhaging. She was certified dead at 09:45 on 16 January 2018. Her cause of death was recorded as organ failure due to multiple pelvic injuries. 9. The appellant’s car was examined and found to have no mechanical, electrical or technical defects. 10. A Victim Personal Statement from the sister of Natalie Hastings was before the court which described the devastating nature of the loss caused by Natalie’s death to herself, her family and friends. 11. In sentencing the appellant, the judge stated that he had been convicted on the clearest evidence of the brutal and merciless killing of Natalie Hastings, who was aged 41. Natalie had been alone on the streets, vulnerable and defenceless. Having viewed the CCTV footage, the judge stated that the appellant had unsuccessfully tried to run Natalie down with his car in Marlowes. He then pursued her in his vehicle. Natalie Hastings must have been terrified as she ran up Marlowes as the appellant had made his intentions clear, not only in what he tried to do in Marlowes but he was shouting at her: “Run, bitch”, and later “You are dead”. The judge found that the purpose of the appellant was to kill Natalie Hastings. The judge described the manner in which the vehicle was driven as merciless and ferociously. The appellant drove his vehicle into and over Natalie Hastings. The judge identified the pain and fear which would have been felt by her as the appellant deliberately drove his vehicle at her. The judge said it was beyond comprehension. 12. The judge took careful account of the extent of the loss felt by Natalie Hastings’ family. He noted that the appellant had demonstrated no remorse, describing him as a callous and ruthless individual, prepared to unleash extreme violence on anyone who crossed his path. 13. In sentencing the appellant to life imprisonment and considering the minimum term to be imposed, the judge identified the starting point as being 15 years’ imprisonment. The judge found that the offence was aggravated by the brutal manner in which the appellant killed Natalie Hastings, firstly in pursuing her in a motor car through the streets and then driving over her. The judge accepted that the killing was not premeditated in that the appellant did not leave his home that day intending to kill Natalie, but found that once the appellant had seen her, he resolved to kill her, as demonstrated by his initial action in attempting to run Natalie Hastings down, following her and, once having seen her again, driving at and over her. The judge accepted that the period of time was short, but stated that it was clearly the intention of the appellant from the moment he saw her to kill Natalie Hastings. 14. The appellant, aged 49 at the date of sentence, has previous convictions but the judge did not take those convictions into account as aggravating features. He reminded himself of section 143(2) of the Criminal Justice Act 2003 (“the 2003 Act”) but purely to record that the appellant is not a man of good character. 15. In terms of mitigating factors, the judge identified the fact that the appellant suffers from cerebral palsy, he has sustained a stroke and from the judge’s observations demonstrates a lack of insight. The judge also took account of the fact that at the time of the offending the appellant was addicted to drugs. Grounds of appeal 16. On the appellant’s behalf, Mr Grefstad has relied upon three matters. Firstly, notwithstanding the fact that this appellant has previous convictions, this offending was out of character. Secondly, it was not a premeditated act; it is comparable to an act which escalated. Thirdly, given the mitigation identified by the judge, combined with what is said on the appellant’s behalf as to the lack of premeditation, insufficient account was taken by the judge of mitigating features when applying the minimum term. 17. On behalf of the respondent, Mr Cleaver has accepted that the sentence passed is harsh. However, he said that given the nature of the driving and the attitude demonstrated by the appellant to the deceased, it warranted an elevation of the starting point beyond 20 years. Further, such mitigating factors as were identified by the judge were limited. Mr Cleaver informed the court that although the judge identified the ill-health of the appellant, namely cerebral palsy and the fact he had suffered a stroke, as being mitigating factors, neither medical condition played a significant part during the course of the trial. The judge who sentenced the appellant was the trial judge. Discussion and conclusion 18. We have been referred to the authorities of R v Nankani [2011] EWCA Crim 1329 and R v Austin [2015] EWCA Crim 627 . We are grateful to counsel for the referencing of these authorities, but a case such as this is fact-specific. 19. It is accepted that the judge was entitled to identify other aggravating features which fell outside the statutory criteria set out in schedule 21, paragraph 10 of the 2003 Act. It is no part of the appellant’s case that the aggravating features identified by the judge were in-apposite, save for the point taken on premeditation. We note the points taken by the judge as to the aggravating features. As to the appellant’s contention that this was not a premeditated offence, we do not agree. We accept and agree with the judge’s analysis that while the appellant may not have started out that evening intending to kill Natalie Hastings, by the time he embarked upon his pursuit of her that was his intention. As such, we accept there was an element of premeditation in his actions. 20. Further, in addition to the aggravating features identified by the judge, we take account of the fact that this terrifying pursuit of a vulnerable woman took place on a public street, a car was used as a weapon and it was viewed by members of the public. It is clear that the judge took account of the effect which Natalie’s death, and the circumstances which led to it, have had upon her family. 21. We have considered with care the mitigation put forward on behalf of this appellant. In reality, this amounts to mitigation relating to his ill-health. Those were facts which were before the judge. However, in our judgment this was a deliberate, callous and calculated killing. Natalie Hastings was properly described as being vulnerable and defenceless in that she was alone in the street, she ran from the appellant as he pursued her at speed, she had no chance against the speeding vehicle as she was approached and killed. The deceased’s vulnerability was not derived from age or disability but from the circumstances of the case. 22. In considering this appeal, we are conscious that no sentence of this or any court can adequately reflect the loss of the life of Natalie Hastings and what it has meant to her family and friends. We accept the judge’s analysis of the pursuit and what led to the death of Natalie Hastings. We accept that he took into account both the aggravating and mitigating features. We regard this sentence as severe. However, given the particular aggravating features in this case, we are unable to say that this sentence was manifestly excessive. Account was taken of the mitigating features, but they were limited and wholly insufficient to outweigh the gravity of the aggravating features. 23. In those circumstances, we do not allow this appeal and the sentence stands. 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]

2019_07_12-4665.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/1282/data.xml

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cb7216d2f84a6b43f0295a0d5b2e21191d51c79035f0f2341a8a2f9432b1f34c

[2011] EWCA Crim 1716

EWCA_Crim_1716

2011-06-23

crown_court

Neutral Citation Number: [2011] EWCA Crim 1716 Case No: 201102145 C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 23rd June 2011 B e f o r e : LORD JUSTICE PITCHFORD MRS JUSTICE DOBBS DBE MR JUSTICE WALKER - - - - - - - - - - - - - - - - R E G I N A v ANTHONY JOHN WILLIAMS - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street

Neutral Citation Number: [2011] EWCA Crim 1716 Case No: 201102145 C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 23rd June 2011 B e f o r e : LORD JUSTICE PITCHFORD MRS JUSTICE DOBBS DBE MR JUSTICE WALKER - - - - - - - - - - - - - - - - R E G I N A v ANTHONY JOHN WILLIAMS - - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - - Non-Counsel Application - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE WALKER: This application for leave to appeal against conviction has been referred to the full court by the Registrar. 2. The applicant stood trial on 16 February 2011 in the Crown Court at Snaresbrook before Mr Recorder Kavanagh QC and a jury on a count of being in charge of a dog which caused injury while dangerously out of control in a public place. The offence in question involved contravention of sub sections (1 ) and (4) of section 3 of the Dangerous Dogs Act 1991 and fell within the jurisdiction of the Crown Court. Prior to summing-up the Recorder canvassed with counsel whether an alternative verdict of guilty of a lesser offence should be left to the jury. The lesser offence was that of being in charge of a dog while dangerously out of control in a public place contrary to section 3 sub section (1 ) of the 1991 Act . Counsel agreed that this was appropriate. 3. The jury acquitted the applicant of the offence charged in the indictment but convicted him of the lesser offence. The case was then adjourned for sentence. 4. Prior to sentence the Recorder contacted counsel, drawing their attention to the requirements of section 6(3) and (4) of the Criminal Law Act 1967 . Under section 6(3) a jury which acquits a defendant of an offence can convict him of another offence falling within the jurisdiction of the court. A summary offence will fall within the jurisdiction of the court only if specified in section 40 of the Criminal Justice Act 1988 . The offence under section 3(1) of the 1991 Act , however, is not so specified. 5. On learning of the point raised by the Recorder, Mr Hayes, on behalf of the prosecution, researched the matter and identified that a similar problem had arisen in R v Buckley [2009] EWCA Crim 1178 . This court reached the conclusion in that case that the conviction for the lesser offence must be quashed. Cranston J, giving the judgment of the court, identified the difficulty: there is no relevant statutory provision enabling the Crown Court to deal with this particular summary offence. 6. In these circumstances the respondent does not contest the appeal. We are driven to the conclusion that the conviction must be quashed on the grounds of lack of jurisdiction. We grant the necessary extension of time, we grant leave to appeal and we quash the conviction accordingly.

2011_06_23-2769.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/1716/data.xml

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3f3d265b2ea14f80c7a426cbf4ac4afec757e05769f081d367097ceb33bf1fe2

[2017] EWCA Crim 924

EWCA_Crim_924

2017-07-05

crown_court

Case No: 201605488 B4 Neutral Citation Number: [2017] EWCA Crim 924 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SNARESBROOK CROWN COURT H.H.J Sanders Royal Courts of Justice Strand, London, WC2A 2LL Date: 05/07/2017 Before : LORD JUSTICE HAMBLEN MRS JUSTICE CHEEMA-GRUBB OBE and HIS HONOUR JUDGE WAIT (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - Between : NUZHAT MIRZA Appellant - and - LONDON BOROUGH OF NEWHAM Respondent - - - - - - - - - - - - - - - - - -

Case No: 201605488 B4 Neutral Citation Number: [2017] EWCA Crim 924 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SNARESBROOK CROWN COURT H.H.J Sanders Royal Courts of Justice Strand, London, WC2A 2LL Date: 05/07/2017 Before : LORD JUSTICE HAMBLEN MRS JUSTICE CHEEMA-GRUBB OBE and HIS HONOUR JUDGE WAIT (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - Between : NUZHAT MIRZA Appellant - and - LONDON BOROUGH OF NEWHAM Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr S Jessop for the Appellant Ms K Round for the Respondent Hearing date : 21 June 2017 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Hamblen : Introduction 1. On 9 November 2016 in the Crown Court at Snaresbrook before H.H.J Sanders the appellant was convicted of breach of an enforcement notice contrary to section 179 (1) of the Town and Country Planning Act 1990 (“ the Act ”) by an 11:1 majority. She was acquitted on count 1 in relation to a breach of an enforcement notice in respect of the same property. 2. She appeals against conviction by leave of the single judge. The outline facts 3. The appellant is the owner of a property at 175 Shakespeare Crescent, Manor Park in East London (“the property”). She had owned the property since 2006. It is a two storey Victorian property with two rooms and a kitchen on the ground floor and two rooms on the first floor. The planning use for the property is as a residential dwelling for a single household. 4. In September 2012 Newham Borough Council (“the Council”) became aware that there had been a material change of use in that the property had been divided into four self-contained flats. Each of the four parts had their own separate bathroom and kitchenette. On 28 February 2014 the planning department served upon the appellant an enforcement notice in respect of the property. The notice specified the steps which the appellant was required to take to remedy the breach of planning control. The steps were as follows: (1) Cease the use of the property as self-contained flats; (2) Remove from the property three of the four kitchens, plus all duplicate doorbells, signage, duplicate outside waste bins and any internal dividing doorways and internal partitioning; (3) Remove from the property all but one supply of electricity, gas and water; (4) Remove from the site all debris arising from compliance with requirements 1, 2 and 3 5. The notice took effect on 28 March 2014. The appellant was given until 28 August 2014 to carry out the necessary steps. 6. It was Mr Mirza’s evidence at the trial that he completed the works required in March 2014 and that some time around then he contacted the Council’s tax department seeking re-classification of the property as one dwelling, rather than four separate flats. 7. On 1 September 2014 the Council’s planning department wrote to the appellant informing her that they wished to inspect the property to check whether the notice had been complied with. No reply was received and on 26 September 2014 the planning department sent a second letter stating that, as there had been no response to their first letter, a visit would take place on 7 October 2014 to check whether there had been compliance with the enforcement notice. 8. No reply was received and the planning officers could not get inside the property to inspect it, when they visited as planned. As a result the Council’s planning department sent the appellant a ‘Final warning’ letter on 8 October 2014, which explained that because their two previous letters had not been answered, and access into the property was not provided on the day they had said they would visit, the Council intended to execute a warrant to get inside on or about 30 October 2014. 9. In fact the Council decided not to apply for a warrant but planning officers were asked to make unannounced visits as they carried out their duties. 10. On 9 October 2014 Miss Andrea Ireland from the Council’s tax department inspected the property and found that there was evidence that the house was still divided. The upstairs rooms had kitchen units and their own bathrooms, and the ground floor front room had its own kitchen sink and a small portable hob and partitioned bathroom. The officer did not see the ground floor rear room but it was known and not disputed that the ground floor rear had a full kitchen and a bathroom. The Council’s tax department refused to refer the property for re-classification as a single dwelling on that basis. 11. On 20 October 2014 Miss Ireland made a second visit, this time with a council tax Valuation Officer. On inspection the kitchen units in the ground floor front room and in the two upstairs rooms had been removed. 12. The prosecution case on count 1 that there was a breach was based upon the evidence of Miss Ireland and her visits in October 2014 and their assertion that at that time there was a main kitchen to the rear of the property and a second kitchen in the ground floor front room, all the partitioned bathrooms were still present, and there were what she called ‘fully fitted kitchen units’. In cross examination Mr Mirza agreed that the tiles in kitchen alcoves in the two upstairs rooms were not removed. The appellant was acquitted on this count. 13. As to count 2, on 26 November 2015 Miss Ireland visited the property again. She visited because council tax was not being paid and a tenant who had been made liable had submitted a Housing benefit claim form which appeared to be for a studio flat at the property, rather than for the whole house. Miss Ireland found that the property was being used and rented as four self-contained flats. 14. On 12 November 2015, on an unannounced visit, an officer of the Council’s planning department, Mr Pavett, was given access by a tenant. He visited again on 26 January 2016. He found the property was being used and rented as four self-contained flats. 15. The prosecution case was that the appellant failed to cease using the property as self-contained flats. The requirement to cease using the property as self-contained flats is permanent. If therefore there was compliance initially but thereafter the property was used as self-contained flats it would still constitute an offence. The person whose actions or inactions fell to be considered were those of the appellant, not her husband. 16. The defence case was that the appellant had a defence under s.179(3) of the Act , namely that she had done everything that she could be expected to do to comply with the Notice. In particular, she relied upon the evidence of her husband in respect of that defence in that she had delegated the task of the management of the property to him. She could do nothing about the breach because she did not know about it. It was accepted that at the time of the visits by Council officers in November 2015 the property was being used as four self-contained flats. Therefore the fact of a breach from this period, as reflected in count 2, was not in dispute. 17. The issue for the jury was whether the appellant had a valid defence under s. 179 (3) of the Act . The evidence at trial 18. The prosecution evidence was as summarised above. 19. The appellant gave evidence. She confirmed that she was the owner of the property and that it had been purchased in 2006. However, she did not manage it nor any of her other four properties. Her husband was a very experienced landlord so she gave it to him to manage and virtually had no dealings with it. She trusted him and left all decisions in relation to the property to him. She knew it had been rented as a single dwelling but that was all she knew about it. When she received/saw the notice she gave it to her husband because it was his responsibility to manage the property’s affairs. She owned other property but was not involved in any aspect of their management. Her husband told her that he would do whatever was needed to comply with the notice. He would organise the building work and take one kitchen away, remove the kitchen, remove the things what the council had told. Three weeks later he told her it had been done. He did not tell her what he had done. She did not go to check. The only piece of paper she had seen was the enforcement notice. She knew nothing about planning applications regarding use of the property as a house in multiple occupation and knew nothing about who was living there. She had not visited the property since about 2010 or 2011 when she visited her daughter who was living there at that time and did not know about visits from Council officers. She had received no other letters or documents about the property. She said that sometimes she opened post addressed to her, sometimes her husband. She had not seen any of the council’s letters of 1 September, 26 September and knew nothing of their intention to visit on 7 October. She opened letters very little. 20. Mr Mirza gave evidence. He had been a landlord for 45 years and owned over a dozen properties. The property was rented out and he managed the property entirely in every way. His wife left all matters relating to the property for his sole attention. 21. His wife opened the letter about being prosecuted. Usually post is put on the table and if he gets a chance he opens it, or his wife opens it. More usually he opens it but his wife was very distressed about the prosecution and that is how he remembered that she possibly opened the letter. He does not normally show his wife letters about the property because she has left everything to him. He did not tell her about the planning decisions. He agreed he might show her a letter, such as the prosecution letter, just talking about his concerns, but said he would not show her things to ask her advice or seek her permission. He did not think he had shown her the enforcement notice letter. It was not important to him to do so because it was something he had to do, it was in his ability to do it, and he did not have any problem or worry about it. He did not remember discussing the enforcement notice with his wife, only the prosecution. He thought that she knew about the builders going in because she was in the house and may have heard him on the phone. He did not need her approval or permission. He just got on with it and she trusted him to have done everything. 22. He had received the enforcement notice. It was addressed to his wife but he always opened the letters. He immediately wanted to comply with it. He had had enough of paying for architects and not getting anywhere. He asked the builder to do what was necessary and gave him a copy of the notice and explained he wanted him to remove the three kitchenettes, the cooking facility, the partitioning, remove the use of the house as separate flats and to put it all into one use. After one or two weeks he visited and was satisfied all the partitioning, the kitchen units and everything was removed but the plastering and painting had to be made good. He produced a receipt for the work which was shown to the jury as exhibit 6. Then on 4 April 2014 he came back on the last day of work and everything was completed to the letter. In cross examination he explained that he had not removed the tiles from the kitchen alcoves upstairs as they were not part of the notice, there was no reason to do so. 23. Mr Mirza then let the property to a Mr Shrenaith and family. He said that in October 2014 he had a call from the Council saying that they wanted to inspect the property and Mr Mirza asked the introducing agent to attend with the tenant. He supposed it was the planning authority as he did not know if there was much difference between them and the Council. He did not go to the meeting himself. He was told that everything was ok. In cross examination he said that the agent was Mr Anthony Paris and there was no particular reason that he did not go with Mr Paris to the inspection. He denied knowing that Miss Ireland had said that there were still kitchen units upstairs and a sink, fridge and a portable stove in the downstairs front room. He said it would not make sense for him to invite the Council to inspect if he had kitchen units in there. He said that he had left the visit for Mr Anthony to deal with and guessed everything was ok. 24. Mr Mirza said that he did not reply to the Council’s planning department letters of 1 September 2014, 26 September 2016 or 8 October 2016 as he had not seen any of those three letters. 25. In March 2015 he was advised that he could get a better rent if he did the garden, updated the paint, put in new beds, things like that. He did the work straight away. Whilst doing the outside painting he was approached by a man who asked if he would let the property to him. It was Mr Sheikh. He entered into a tenancy agreement with Mr Sheikh. A meeting was held at his office and before entering into the agreement Mr Mirza was satisfied by what he saw of the office, and by what he was told at that meeting, that Mr Sheikh was reputable and was genuinely interested in renting the property for himself and his family. Mr Sheikh gave him ID in the form of a driving licence, but his best ID was his office. However, in November 2015, Mr Mirza was shocked to receive a letter from the Council saying the property was being rented out as separate flats. The letter was sent to his wife who handed it over for him to deal with . He immediately contacted the Council and also sought advice from his solicitor. He then ‘hounded’ Mr Sheikh. He served a s.21 notice requiring possession of the property from Mr Sheikh and Mr Sheikh gave up possession and gave the keys back to him on 4 May 2016. He became aware that Mr Sheikh had tried to evict one of the sub-tenants and Mr Mirza helped her report the matter to the police. 26. He also gave evidence that he later discovered that Mr Sheikh appeared to be connected to a letting agency, Chambers Lettings, who apparently were known to the authorities for their involvement in sub-letting properties unbeknown to the landlord. 27. He was aware there was a right of appeal against the notice but he did not exercise it because by that stage he had ‘had enough’. Ruling on admissibility of Mr Mirza’s evidence 28. At the conclusion of the defence case the judge asked to speak to both counsel in the absence of the jury. He stated that in his view the evidence of Mr Mirza concerning what he did in 2015 with regards to the renting and management of the property, including evidence of steps he took to verify who the tenant was, visit the tenant, and take action once he knew of the breach of the notice, was inadmissible. 29. A discussion then took place between the judge and counsel as to the issues facing the jury in respect of count 1, where the breach was not admitted, and count 2, where it was. 30. In relation to count 1 the judge concluded that Mr Mirza’s evidence was relevant to the issue of whether there was a breach but that it was not relevant to the defence under s.179(3) for either count one and/or to count 2. The appellant was the registered owner. There was no suggestion that the evidence was insufficient for the jury to come to reach a conclusion of failure to comply with count 2. 31. In the context of this case, the appellant’s evidence in effect was that she left everything to her husband. Her decision was not based on how well or how badly he actually carried out the instructions because she did not know this. She only knew what she was told. The grounds of appeal 32. The grounds of appeal are that the judge erred in directing the jury that they could not consider the evidence of Mr Mirza in relation to the appellant’s defence under s.179(3) and that the conviction is accordingly unsafe. 33. Section 179 of the Act provides as follows: “179(1) Where, at any time after the end of the period for compliance with an enforcement notice, any step required by the notice to be taken has not been taken or any activity required by the notice to cease is being carried on, the person who is then the owner of the land is in breach of the notice. (2) Where the owner of the land is in breach of an enforcement notice he shall be guilty of an offence. (3) In proceedings against any person for an offence under subsection (2), it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the notice. (4) A person who has control of or an interest in the land to which an enforcement notice relates (other than the owner) must not carry on any activity which is required by the notice to cease or cause or permit such an activity to be carried on. (5) A person who, at any time after the end of the period for compliance with the notice, contravenes subsection (4) shall be guilty of an offence. (6) An offence under subsection (2) or (5) may be charged by reference to any day or longer period of time and a person may be convicted for a second or subsequent offence under the subsection in question by reference to any period of time following the preceding conviction for such an offence. (7) Where – (a) a person charged with an offence under this section has not been served with a copy of the enforcement notice; and (b) the notice is not contained in the appropriate register kept under section 188. it shall be a defence for him to show that he was not aware of the existence of the notice. ….” 34. Section 179 creates two criminal offences: one in respect of the owner of the land ( s.179(1) (2)) and one in relation to a person who has control of or an interest in the land ( s.179(3) (4)). It is an offence of strict liability subject only to the statutory defences set out in s.179 . 35. Under s.179(7) there is a statutory defence to both subsection (2) and subsection (5) charges where the person charged has not been served with a copy of the enforcement notice and the notice is not contained in the appropriate register kept under s.188. 36. Under s.179(3) there is a further statutory defence to the owner offence. 37. The defence is not available to an owner who had the power to comply with the notice without the assistance of others. As stated by Hobhouse LJ in the judgment of the Court of Appeal in R v Beard [1997] 1 PLR 64 at 71: “. . . subsection (3) uses the words “everything he could be expected to do to secure compliance” (our emphasis). The argument of the Appellant ignores these words and their necessary implication that the owner is having to secure that someone else comply with, or assist in the compliance with, the notice. “ 38. As made clear in the same case “everything he could be expected to do” should be read as “everything he could reasonably be expected to do” – see R v Beard at p72: R v David Wood [2001] EWCA Crim 1395 at [11]. 39. As explained by Hobhouse LJ in R v Beard at p72: “We consider that the submissions made on behalf of the prosecution are correct. The meaning of section 179 is clear and unambiguous. Where it is within the power of the owner of the land to comply with the notice without the assistance of others, no question of a defence under subsection (3) arises. Before a defence can arise under that subsection, the owner must show that compliance with the notice is not within his own unaided powers, otherwise no question of his having to secure compliance with the notice can arise. Thus, if there are other persons in occupation of the land, it is enough if he has done everything he could reasonably be expected to do to secure that they comply with the notice. If compliance would require, for example, some engineering work and the owner is not himself able to do that work and does not have the resources to employ another to do it, he will have a defence if he can show that he did everything he could reasonably be expected to do to secure compliance with the notice. These examples suffice to illustrate the application of subsection (3)." 40. “Everything he could reasonably be expected to do” involves an objective criterion of reasonableness. It may take into account the owner’s personal circumstances – see Kent County Council v Brockman [1996] PLR 1. It is a higher burden than reasonable excuse – see R v Basildon Crown Court Ex P. Cooper [unreported] per Blofeld J at [27]. 41. It follows that the defence under s.179 (3) has two stages: (1) is it within the owner’s power to comply with the notice without the assistance of others? If “yes” then the owner has to do so and no defence of doing everything the owner could reasonably be expected to do arises. If “no”, then (2) has the owner shown on a balance of probabilities that he did everything he could be expected to do to secure compliance with the notice. It follows that an inability or incapacity for the owner to comply with the notice unaided is not the end of the defence, rather it is the gateway to the defence. 42. In the present case it was accepted by the Crown that the appellant could not comply with the notice unaided or without the assistance of others. The appellant’s argument that it was only through admitting the evidence of Mrs Mirza’s husband that she could show that compliance was outside her power unaided therefore misses the point. In the light of the Crown’s concession this was not an issue which arose. 43. In those circumstances, the relevant question for the jury was whether she could show on the balance of probabilities that she had done everything she could reasonably be expected to do to secure compliance with the notice. As the judge correctly put it in his directions: “In this case, if you were sure that there had been non-compliance with the notice then it would be a defence for Mrs Mirza to prove that she had done everything that could reasonably be expected of her to secure compliance with the notice. The burden of proving this is on Mrs Mirza. However where a defendant has to prove something she does not have to make you sure of it. She only has to show that it is more likely than not. So if your view is that Mrs Mirza has shown that it is more likely than not that she had done everything she could be reasonably be expected to do to secure compliance with the notice then you would find her not guilty on the count you are considering.” 44. The issue which arises on the appeal is whether the judge was correct to rule and then direct the jury that in considering that question the jury was to focus on what Mrs Mirza knew and did. 45. It is submitted that he was wrong so to do because it meant ignoring the evidence of Mr Mirza as to what he had known and done. It meant that the jury were not to have regard to the evidence of Mr Mirza, such as: his evidence about the tenancy agreement; the fact that the property was rented to Mr Sheikh as a single dwelling; the proof of the rent going into Mr Mirza’s bank account in support of this issue; the evidence of his due diligence checks including a copy of an identity document in the name of Mr Sheikh; evidence of the premises being sub-let to another company called Chambers Lettings (known to the Crown to have been so involved with separate unconnected properties in the borough); evidence of Mr Mirza becoming aware of the sub-letting and his evidence of what he did to then evict Mr Sheikh and comply with the notice. 46. It is submitted that in order to determine whether the appellant had done all she reasonably could be expected to do to comply with the notice it was necessary to consider why her husband, to whom she had delegated the task, was allegedly unable to secure compliance. The jury were, however, excluded from considering this evidence. 47. It is pointed out that if Mrs Mirza had managed the property herself and had carried out the due diligence checks, given evidence that she had been duped by the tenant and that she then had taken steps to evict him, there is no doubt that this evidence would have been ruled to be relevant and admissible. However, on the judge’s approach the same evidence would not be relevant or admissible where the owner had delegated responsibility to someone else and where she (the owner) did not know what steps had been taken by the delegated person. That was an incorrect approach and meant that the jury would not have had regard to all the relevant circumstances. 48. The reason that the judge ruled that this evidence was not admissible in the present case was twofold. First, it had no relevance to the reasonableness of her decision to entrust the management of the property and compliance with the notice to her husband because it post-dated that decision. Secondly, she had no knowledge of what her husband had done because she did not ask him and he did not tell her. 49. This was an unusual case because of the very limited role and knowledge of the appellant in relation to compliance with the notice. As set out in the summing up the evidence of the appellant was as follows: “He told me that he would do whatever was needed, and that he would organise building work. He said he was going to comply with the notice, and he told me that he’d done it. He said he would get rid of the kitchens and the things that the councils wanted. I don’t get involved in any of our other properties. Sometimes I open the mail, and sometimes my husband does as well. The reason I gave it to my husband is because he will do all that is required. He is better than me and he knows all these things. He told me about three weeks after the notice that he’d done the works. I didn’t check, but he told me he’d checked. The only piece of paper I saw was the enforcement notice. I didn’t know anything about the proceedings about the house in multiple occupation. My husband did that. I didn’t know anything about who was living in my property. My husband deals with all of it. I hadn’t visited since my daughter was living there in about 2010 or 2011. I didn’t know about the council tax visit in October 2014”. She said, “I don’t know things. All I did was to give the notice to my husband and I never checked what he has done”. She said, “As far as anything about 173 was concerned, my husband deals with everything”. 50. In summary, although it was her property her husband took full responsibility for managing it; she was aware of the notice issued in 2014; her husband took responsibility for dealing with it; he was an experienced landlord and she trusted him; he told her (not long afterwards) that he had dealt with the notice. She did and asked no more. In particular, she denied any knowledge of the circumstances of the letting of the property to Mr Sheikh in 2015 and her husband’s involvement with the property including his eventual eviction proceedings. 51. In these somewhat unusual circumstances in our judgment the judge was correct to direct the jury to focus on what the appellant did or did not do. She had no knowledge beyond that. The duty to comply rested on her as the owner of the property. She knew nothing about what had or had not been done to comply with the notice. She left everything to her husband. In those circumstances all she could rely upon to show that she had done all that could reasonably be expected of her to secure compliance with the notice was the reasonableness of her decision to entrust everything to her husband because that was all she had done and she knew nothing further. 52. It is submitted that it was unfortunate that the jury were left in the position of having heard a good deal of evidence from Mr Mirza that was irrelevant to the issue which they had to decide. That may be so but no application was made to discharge the jury and this is not pursued as a separate ground of appeal. It is not submitted that the hearing of this evidence could or would have prevented the jury from deciding the case in accordance with the directions given to them or otherwise been prejudicial to the appellant. Conclusion 53. For the reasons outlined above we dismiss the appeal.

2017_07_05-4014.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/924/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/924

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[2008] EWCA Crim 76

EWCA_Crim_76

2008-02-08

supreme_court

Neutral Citation Number: [2008] EWCA Crim 76 Case No: 200502501 C4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BIRMINGHAM CROWN COURT MR JUSTICE HARRISON Royal Courts of Justice Strand, London, WC2A 2LL Date: 08/02/2008 Before : LORD JUSTICE HUGHES MR. JUSTICE SAUNDERS and SIR CHRISTOPHER HOLLAND - - - - - - - - - - - - - - - - - - - - - Between : Ronald Hill Appellant - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of

Neutral Citation Number: [2008] EWCA Crim 76 Case No: 200502501 C4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BIRMINGHAM CROWN COURT MR JUSTICE HARRISON Royal Courts of Justice Strand, London, WC2A 2LL Date: 08/02/2008 Before : LORD JUSTICE HUGHES MR. JUSTICE SAUNDERS and SIR CHRISTOPHER HOLLAND - - - - - - - - - - - - - - - - - - - - - Between : Ronald Hill Appellant - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 190 Fleet Street, London EC4A 2AG Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr P R Taylor (instructed by The Registrar of Criminal Appeals ) for the Appellant Mr C Hotten QC and Mr M Duck (instructed by The Crown Prosecution Service ) for the Crown Hearing dates : 28 th and 29 th January, 20088 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Hughes : 1. On 6 July 1994 this appellant was convicted of murder. The CCRC referred his case to this court because, following the decision of the House of Lords some years later in Morgan Smith [2001] 1 AC 146 , and given a new assertion that the appellant had been the victim of childhood sexual abuse, there was doubt that the issue of provocation had properly been before the jury. Since that referral, the law has been clarified by the Privy Council in AG for Jersey v Holley [2005] UKPC 23 ; [2005] 2 AC 580 . As has been accepted before us, the effect of R v James; R v Karimi [2006] EWCA Crim 14 ; [2006] 1 Cr App R 29 at 440, and of the refusal of the House of Lords to give leave to appeal in that case, is that the law is correctly set out in Holley and not in Morgan Smith . It is also accepted before us that that means that the appeal can no longer be advanced on the basis on which the Commission referred it. 2. For the appellant Mr Taylor submits, however, that quite apart from the basis of referral, this conviction is unsafe for two reasons: (a) because fresh evidence from the appellant is available to suggest that he had suffered childhood sexual abuse, which, if it had been before the trial court together with fresh medical evidence, would still have provided a basis for acquittal of murder on grounds of provocation under Holley ; and (b) because fresh medical evidence is now available to suggest that the appellant was suffering from diminished responsibility at the time of the killing. Accordingly, Mr Taylor seeks to pursue the appeal which the CCRC reference makes available to him on the provocation issue, albeit on modified grounds, and he additionally asks for leave to appeal on the diminished responsibility issue. He accepts that the CCRC considered the latter, and declined to refer upon it, but he contends that it raises good arguable grounds. The offence, trial and first appeal 3. Hill was 39 at the time of the offence. On the night of Monday 17/Tuesday 18 May 1993, after an evening’s heavy drinking, he left the last public house he had attended in the company of the deceased, Ricky Hayman, whom he knew as an occasional drinking companion. Hayman was known, generally and to the appellant, to be homosexual. The two men must have gone together to Hayman’s flat. Sometime after arrival there, Hill killed Hayman in that flat by manual strangulation. There were marks on the body suggestive of one or (probably) more blows to the face, but they were of no great severity. 4. The appellant left the body on the floor of the living room, on its back. He stole a television from the flat, sold it, and spent much of the next day drinking on the proceeds. The back pocket of the deceased’s trousers was torn off, raising the possibility of theft or attempted theft of cash; that the appellant denied. 5. In the afternoon of the following day, the appellant told a friend what he had done and took him to the flat, where he showed him the body on the floor. The friend extracted a promise from the appellant that he would give himself up to the police. In fact, the appellant did not, on his case because he wanted first to see his young daughter, living with the girl’s mother, from whom the appellant was estranged. In the meantime, the appellant had moved the body that afternoon from the floor and put it in a cupboard, and had somewhat tidied up the scene of the killing. The body was found in the cupboard when the friend reported what he knew to the police. The appellant was arrested the same evening. In interview he accepted that he had been responsible for the death of Hayman, but said that he had not meant to kill him. 6. The account given by the appellant was not entirely consistent as to detail as between his police interviews, his proof of evidence to his solicitors, and his evidence at trial. But in essence he said, and consistently, that he had fallen asleep in a chair at Hayman’s flat and that he had awoken to find Hayman fiddling with the zip of his trousers as if to attempt to extract and suck the appellant’s penis. He had lashed out, not severely, with a backhanded blow, which had hit Hayman, although not hard, in the face. At some stage, Hayman had fallen and struck his head on the wooden arm of a chair; that, said the appellant was the cause of the principal of the facial marks, namely a cut over the right eyebrow. In police interview, the appellant denied strangling the deceased, or in any way putting his hand(s) to his throat; he said that the deceased had made weird gargling noises and had seemed to choke on something. At trial, he insisted that he had no recollection of doing anything to the throat of the deceased, but said that he accepted in the face of the pathologist’s evidence that he must have strangled him. He repeated the evidence of the deceased making coughing or gargling noises and said that he had thought that he was choking on something. 7. The appellant’s account, if accepted, amounted of course to provocative behaviour by Hayman, in the lay sense. As to the legal concept of provocation, the appellant had told the police specifically that he did not lose self control. He gave no evidence to the contrary at trial. Accordingly, the jury was not addressed upon provocation by very experienced leading counsel for the appellant. That is not at all surprising. If the appellant’s evidence was or might be true, it was a case of lack of intent; his critical allegation of indecent assault was equally relevant to that issue; a conviction of manslaughter on the grounds of provocation, involving a finding of murderous intent, would have been a far worse outcome for the appellant than a conviction of manslaughter on grounds of lack of intent. The Judge, however, properly left the issue of provocation to the jury, because if it were to reject the appellant’s assertion that he had not lost his self control, it needed to go on to consider whether his reaction was such as a reasonable person might have exhibited. 8. Because necessarily the argument in this court has proceeded largely upon the hypothesis that the appellant’s assertion that Hayman had made the alleged indecent assault was accurate, we ought to record that it was disputed by the Crown. The evidence of it depended essentially on the appellant’s word. There were other pieces of evidence pointing in favour of it or against, but they were, separately or together, inconclusive. Hayman was known to be homosexual. One of the evening’s drinking companions said that Hayman had touched his leg in the public house. On the other hand, the appellant had associated contentedly with Hayman both previously and on the night of his death, and according to him had made his disgust clear on a previous occasion when Hayman had tried to kiss him. Hayman was fully dressed, still wearing his outdoor clothing including an (unbuttoned) anorak. The zip of Hayman’s trousers was partly down when the body was found, but the appellant admitted to moving it, and to adjusting the scene by, for example, throwing away the deceased’s broken spectacles. There were traces of semen on Hayman’s private parts, but whether attributable to arousal (and if so when) or to death throes it was impossible to say. The Crown also disputed the appellant’s account of the fatal physical encounter. There was blood near the door of the living room, somewhat away from where the body had been seen on the floor, which did not fit with the account given by the appellant. There was no blood on or by the chair on which he said the deceased had cut his eyebrow. The torn pocket and theft from the flat supplied a possible alternative explanation for disagreement between the men. 9. However, beyond the fact that the jury convicted of murder, it is not possible to know what view, if any, it formed of the appellant’s assertion that he had been indecently assaulted in his sleep. The defence advanced at trial was lack of murderous intent. The strangulation would not necessarily have taken more than about 15 seconds and might perhaps have been accomplished with one hand, although it must have been pursued whilst the deceased audibly made desperate struggles for breath and until he expired. The jury must have rejected the appellant’s assertion that he did not deliberately strangle the deceased, and his case that, if he did, he had no intent to kill or do grievous bodily harm. In so doing, the jury must, we think, have rejected the appellant’s account of the mechanics of the physical contact between himself and the deceased which caused the latter’s death. But the conviction for murder does not necessarily mean that the jury rejected the assertion of indecent assault. It may have done, but equally could perfectly properly convict on the basis that even if that happened, or may have happened, there followed a killing accompanied by the necessary intent, and not the result, in law, of provocation. 10. An appeal to this court followed. There were two grounds: a suggested flaw in the Judge’s direction as to lies, and that the conviction for murder, rather than manslaughter on the basis of lack of intent, was unsafe and unsatisfactory. Those grounds failed and the appeal was dismissed on 19 May 1995. Subsequent history 11. After the failure of his appeal, the defendant continued to protest his innocence. The basis on which he did so was his continued assertion that the death was accidental, by which he clearly meant he had had no intent to do serious harm. That has continued ever since to be his principal contention. That issue had been fully investigated by the jury and this court had subsequently held that there was very clear evidence on which the jury could find the necessary intent. The appellant’s protestations that the deceased met his death by striking his neck on something, or otherwise without intent to do serious harm, remain his case, but rightly form no part of this second appeal in front of us. 12. In August 1995, when discussing this contention with a psychologist in the prison, the defendant said, in the course of insisting that he was not himself homosexual, that he had been sexually abused as a child. He has made a number of witness statements for the Commission, and now for this court, in which he explains that he was abused by his foster father. The exact facts of his fostering are less than entirely clear, but it is known that he was fostered by the Local Authority for two periods, each time with the same foster family. One was when he was about 8 or 9 (thus circa 1961 or 1962) for a short period of a few weeks when his mother was either confined for the birth of his younger brother or suffering from a breakdown. The second was the result of a fit person order made by the juvenile court on 16 March 1967 (aged nearly 14), following offences of burglary and criminal damage, and with a history of other offending including stealing, and of previous probation. He is said to have remained with the fosterers until he was about 16 or 17; he would have been 17 in May 1970. Certainly he must, on his own account, have left the fosterers some months before he had a serious car accident in April 1971, when not quite 18. 13. The appellant’s present account is that he was persistently abused by his foster father during both periods of living with the foster family. Even more significantly, he says that he was ever thereafter oppressed by intrusive memories of the abuse, and that when, as he asserts, he woke up to find the deceased interfering with his trousers, he was assailed by a flashback to the similar conduct of the foster father. That, he says, is why he reacted in the way he did. 14. There is potentially independent support for the proposition that this foster father abused boys in his care. In 2004 he was prosecuted for serial offences of that kind, alleged to have been committed over several years from approximately 1967. The trial was aborted because of accidental jury contamination, and there has been no re-trial. It follows that the allegations made against him have never been tested. They may be true, or they may be examples of false late allegations which feed upon each other. However, enquiries by the Commission in the present case reveal that there were about a dozen people who, now adults, have complained of such abuse when either fostered by this man or driven about by him when children. There were formal witness statements dating from about 1988, but the Commission has also found that as early as 1969 one child complained of being abused when the foster father came into his bedroom at night, and that social workers taxed the man about it. At that stage the complaints of that child were accepted to be fantasies. This history of complaints means that it is certainly plausible that this appellant might have been abused in the way he now asserts. It is also possible, and in reality likely, that he would have known, as the foster-brother of the 1969 complainant, of what that boy was then saying, and/or would have learned at some stage after leaving this home of what was being said about the foster father; since, however, he has not addressed this question, there is no direct evidence either that he knew or that he did not. Provocation 15. The first question which arises in this court is whether we should receive this new evidence from the appellant asserting childhood sexual abuse and that a flashback to it was the cause of his killing the deceased. By section 23 Criminal Appeal Act 1968 , this court has power to receive it if it is in the interests of justice to do so. In deciding whether to receive it or not, our attention is directed, as non-exhaustive factors, to the questions: “(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 the subject of the appeal; and …. (d) whether there is a reasonable explanation for the failure to adduce the evidence those proceedings.” 16. It is clear law that the appellant’s assertion of childhood sexual abuse, and flashback to it, would have been admissible evidence at his trial and relevant to provocation under Holley . It would have provided evidence of particular sensitivity to the kind of indecent assault which the appellant was saying prompted his killing of the deceased. It would have been relevant to the gravity of the provocation. 17. The reason why this assertion was not before the jury was that the appellant did not say it. His case in this court thirteen or fourteen years later has been that he did not do so because (a) he was not asked about it, (b) he did not realise its significance and (c) he was embarrassed and inhibited to talk about his experiences, especially to men. 18. It is not quite the whole story to say that the appellant was not asked about this matter. The two psychiatrists reporting prior to trial upon him on behalf respectively of the Crown and himself, were aware of his assertion that there had been an unwanted indecent assault by the deceased, and were also aware that the appellant had, in addition to a very long criminal record for fraud and theft, a significant number of convictions for indecent exposure. They did ask questions about his sexual orientation, and one (Dr Canning) specifically asked him if there was an element of bi-sexualism, which he denied. That might have been thought to raise questions of sexual experience such as might have prompted a history of childhood abuse. But it would not necessarily do so, and it is certainly true that the appellant was not asked directly whether he had ever been abused. It is also true that the possibility of abuse, unremembered or suppressed by the appellant, occurred to Dr Sugarman, though as we now know, this is not a case where the appellant suggests that any abuse was unremembered or suppressed; quite the reverse. 19. Next, the appellant was not silent about his period in care in the run up to his trial. His experienced criminal solicitors had represented him over several years. Now that he was faced with a charge of murder they took from him a careful proof of evidence covering his life history. He related to them his period(s) in care. Far from revealing what he now says was a long history of frightening sexual abuse by his foster father, he went out of his way to say that that man had been kind to him, that he had helped him financially, and that he, the appellant, had kept in touch subsequently. The appellant told his solicitors that he had taken his own children to visit his erstwhile foster father. That included, said the appellant, a daughter not born until 1991. He was therefore telling his solicitors that he had kept in amicable touch with his alleged abuser for twenty years until only a year or two before this killing, and throughout a period when on his new account he had been constantly oppressed by frightening intrusive memories of his abuse. 20. We are perfectly prepared to accept that the appellant may not have appreciated the legal complications of the issues of lack of intent and provocation. If he did understand the difference between a partial defence of provocation and a partial defence of lack of intent, then it is probable that the failure to mention the matter was a deliberate tactical choice on his part, for to admit a violent reaction triggered by memory of childhood abuse would have been likely to demolish the defence of lack of intent run at trial. It is, however, not safe to conclude that this was his understanding. 21. But even if he did not understand the legal ramifications of his memories and flashback, it by no means follows that he would not appreciate the significance of what he now says. Precisely the reverse is the case. It constituted, if true, the very reason why he killed Hayman. It matters not for this purpose what were the mechanics of the killing. Whatever it was he did, the reason why he did it is, he now says, because he was a victim of childhood sexual abuse, had been oppressed by it for twenty years and more, and had a flashback to it when finding himself indecently assaulted. If that were true, no sane person facing a charge of murder could fail to appreciate its central importance. It went, on his account, to his excuse, or reason, for killing. It went as much to lack of intent as to the legal concept of provocation. In lay language he is saying he was the more affected by an indecent assault because of his experiences as a child. We are quite satisfied that there is no possible reasonable explanation for this appellant failing to advance the oppressive history and flashback if that were truthfully the reason for the killing. Accordingly we decline to receive the new evidence. Moreover, the fact that he did not give this evidence at the time means that, whilst it may be impossible in the abstract to reject the possibility that this foster father misbehaved towards him, his new evidence that the killing resulted from a flashback of childhood abuse, persisting over twenty years and more, is not capable of belief. 22. It is of central importance to the law that a person charged should advance whatever material is available to him at trial. This court will not ordinarily so exercise its powers to admit fresh evidence as to permit a defendant to change his account after trial in order to run a different defence on appeal, in the absence of the witnesses and of the jury: see, among many statements to similar effect, Campbell [1997] 1 Cr App R 199 at 204 and Jane Andrews [2004] Crim LR 376. 23. For those reasons we refused to receive the statements of the appellant made since the trial. The proposed grounds of appeal based upon provocation could only be advanced if that evidence was received. Accordingly the appeal on that ground must be dismissed. Diminished responsibility 24. The appellant had had a serious road accident in April 1971. He had been unconscious for the prolonged period of about 18 days thereafter. This was known to the reporting psychiatrists prior to trial. They addressed the question of diminished responsibility. EEG tests carried out over the intervening years had been normal. There was some reporting from the appellant’s mother of a change of personality and greater aggression after the accident. Otherwise the evidence of the appellant himself and of those who had known him over a period of years was that he had held a number of jobs in a different fields, including assistant management of licensed premises, had engaged in two or three long term domestic relationships, had a history of repeated offences of fraud and consequent periods in prison, and was regarded by his associates as a pleasant ordinary man except when drunk, when he became aggressive and violent. The reporting forensic psychiatrists, both very experienced, concluded that there was no prima facie case for a defence of diminished responsibility. Accordingly, it was not ventilated at trial. 25. Nearly fourteen years later, the appellant sought in this court to rely upon the evidence of Dr Peter Fenwick, an experienced neuro-psychiatrist, supported by that of Dr Somekh, a forensic psychiatrist. The evidence which was tendered was to some extent the same as was available at the time of trial, but in two respects it was based on scientific advances made since that time and was thus not then available. Those were (i) new scanning techniques considerably more extensive than an EEG, notably by MRI, and (ii) new scientific analysis of the physiology of sleep and of awakening from it. We were satisfied that there was, to that extent, a reasonable explanation for the fact that this evidence was not tendered at the time of trial. It is also evidence which would have been admissible at trial if the issue of diminished responsibility had been raised. Accordingly we invited Mr Taylor to call, de bene esse, the evidence on which he sought to rely, so that we could judge whether or not it might afford grounds for allowing an appeal against conviction. In the event, the evidence was given by Dr Fenwick. 26. On MRI scan the appellant can be seen to have a small area of localised atrophy in the corpus callosum. This could well be (although not necessarily) the result of the severe road traffic accident in April 1971. For present purposes, we proceed upon the basis that it is. Secondly, there is a degree of generalised atrophy in the brain. We should record that there is a difference of opinion between Dr Fenwick on the one hand and the consultant radiologist instructed by the Crown as to the significance of this. Dr Fenwick argues that it is somewhat beyond what would be normal in the brain of a man of this age, and that it is entirely consistent with being the result of the trauma in the accident. Dr Nixon, consulted by the Crown, takes the view that it is essentially normal, or within normal range. For present purposes, without resolving that difference of opinion, we proceed upon the basis that Dr Fenwick might be right. The damage includes the frontal lobes of the brain, which are those particularly relevant to (inter alia) impulse control, planning, and sequencing. Next, there have been psychometric tests of the appellant. His performance on verbal comprehension, thinking with symbols and processing speed, were poor. Notwithstanding that the experienced consultant neuropsychologist tester is of opinion that these results show abilities in the low average range without any significant cognitive impairment, Dr Fenwick disagrees; his view is that they do demonstrate significant cognitive disability. Once again, for present purposes, without resolving the difference, we proceed upon the basis that he might be right. 27. As to the physiology of sleep, Dr Fenwick explained that it is now known that sleep proceeds by alternating cycles of ‘slow wave’ (ie deep) sleep and dreaming sleep. During the slow wave phases, the blood flow to the frontal lobes is reduced and the brain rhythms alter. If one is awakened suddenly from slow wave sleep, then this can result in either (i) a serious ‘confusional state’ with complete absence of memory for what happens, or (ii) a lesser degree of confusion as to what is going on. This is not, he says, a case of (i), but is a case of (ii). His opinion is that the interaction of this process with existing organic damage to the frontal lobes would significantly reduce the appellant’s responsibility, indeed his culpability, for the killing. 28. We were somewhat concerned about Dr Fenwick’s approach to the issue of diminished responsibility. He began with the (uncontroversial) proposition that a severe road accident made organic brain damage likely. From there he proceeded to the assertion that organic brain damage, especially in the frontal lobes, was responsible, or likely to be responsible, for criminal conduct. At one stage he volunteered the opinion that it was highly likely that a record for persistent fraud, such as this appellant has, would be attributable to brain damage, even though, as we understood him to say, frontal lobe damage is apt to impair planning and organisation, which might be thought to be characteristics of fraud, such as (in this case) forgery of employers’ credit card slips to generate a surplus of money to steal. To the extent that that involved the implicit assertion that a large proportion of persistent fraudsters suffer from a condition which would amount to substantial impairment of their responsibility for their crimes, we cannot avoid saying that this is very surprising. The next step in the reasoning appeared at first to be that if organic brain damage of this kind is found, at least if coupled with evidence of poor performance upon psychometric testing for verbal comprehension, word use and processing speed, that produces a prima facie case of diminished responsibility. He felt able to give the formal opinion that there were ‘clear grounds’ for a plea of diminished responsibility in a report written in 1996 when no MRI scan or psychometric tests had been carried out, and he had not seen the appellant. That involved the assertion that ‘the offence took place when he was aroused from the deepest stages of sleep’, although so far as we can see that could not possibly be known, even if one accepted everything the appellant had said at face value. At best it was founded on the appellant’s estimate of time passing whilst he was asleep, but even if that, inherently unreliable, estimate were accurate the sleep patterns could not accurately be predicted because of the effects of the intake of alcohol. 29. Diminished responsibility must be established by a defendant on the balance of probabilities. The question here is not whether there is some organic brain injury, nor even whether there has been some change of personality since the accident. It is no more, but no less, than whether there was such an abnormality of mind as substantially reduced (diminished) the appellant’s responsibility for killing Hayman. Whether there is or is not a substantial reduction in the responsibility of the killer is always a broad question of fact and degree. It is not determined by the medical evidence, although there are of course some clear cases where the medical evidence is such that no one could doubt the answer. It is determined at trial by the jury. If it arises on appeal for the first time by way of fresh evidence, the question is one for this court: see Pendleton [2002] 1 Cr App R 441 as explained in Dial [2005] UKPC 4 ; [2005] 1 WLR 1660 at paragraph 31. 30. In this case the evidence of any organic brain injury having an effect on the appellant’s behaviour so as to show substantial reduction in his responsibility for his actions, and for this killing, is very limited indeed. No-one has been able to find out what his mother meant by greater aggression. But the appellant’s own evidence, and that of those who knew him well, plainly suggested ordinary functioning, and an absence of aggression or impulsiveness except when drunk: see paragraph 24 above. That related to a period of 22 years or thereabouts between the accident and the killing. 31. In his evidence in this court, Dr Fenwick’s opinion was refined. It was that the organic brain injury would not constitute significant impairment of the appellant’s responsibility for the killing until it interacted with (i) alcohol intake and (ii) awakening from deep sleep, but then it would. 32. There is no suggestion that there was any involuntary drinking in this case. The appellant does not suffer from any alcoholic condition such as to make him unable to control his drinking. He simply sometimes drinks too much. On his own account, he did on the night of the killing. His own account is that he was still drunk when he woke up. He gave drink as an inherent part of his explanation for what he did. The law is clear. (1) The voluntary consumption of alcohol cannot be taken as something which contributes to mental abnormality and consequent significant reduction in responsibility for a killing. (2) If the mental abnormality would, independently of the drink, have significantly reduced mental responsibility for the killing, then the additional taking of drink does not take away the defence of diminished responsibility: see Deitschmann [2003] UKHL 10 ; [2003] 2 Cr App R 4 at 54. This, on the evidence of Dr Fenwick, is a case not of (2) but of (1). It follows that the reasoning that drink creates diminished responsibility by interaction with whatever organic brain damage there was is not, in law, open to the appellant. 33. As to sleep, it remains wholly speculative, assuming the appellant’s account of being woken up to be true, which stage of sleep he was in. But quite apart from that, the appellant’s description of being woken up is not a description of any degree of confusion at all. On the contrary, it is a description of knowing exactly what was happening, and reacting to it out of offence. He gave a consecutive account of events from his awakening to concluding that Hayman was dead, save only for professing an absence of memory for the strangling. His recollection included what the deceased said when he struck out. There are of course many reasons why a man who has killed may have, or profess to have, an absence of memory for the exact physical process of the killing. Such a memory gap, assuming it truly to exist, is no indication in the context of this case of any element of confusion as to what was going on, attributable to the interaction of whatever organic brain injury there was and sudden awakening. There is simply no evidential basis for the proposition that this killing was explained by confusion on awakening. That is sufficient to dispose of this case. We think we ought to add that a jury would be very familiar with sudden awakening and the possibility of some element of momentary confusion. It would not know the physiology of the process, but that would not prevent it knowing what effect it has. We have no doubt that it would take strong evidence of mental impairment to satisfy a jury that a killing committed on sudden awakening was one for which the responsibility of the defendant was substantially diminished. 34. For these reasons, we are satisfied that the evidence of Dr Fenwick, assuming him to be correct on the various points where there is disagreement, would not afford grounds for allowing an appeal against conviction. Accordingly we declined to receive his evidence. We should observe that in arriving at that conclusion, we share that of the Commission, which declined to refer this case on the diminished responsibility ground. 35. It follows that the application for leave to appeal on the diminished responsibility ground must be refused.

2008_02_08-1362.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/76/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/76

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[2004] EWCA Crim 1388

EWCA_Crim_1388

2004-05-28

supreme_court

Case No: 200304007 C1 Neutral Citation Number: [2004] EWCA Crim 1388 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Liverpool Crown Court Mr Justice Holland No: 200304007X1 Royal Courts of Justice Strand, London WC2A 2LL Friday 28 th May 2004 Before : LORD JUSTICE WALLER MR JUSTICE DAVIS and MR JUSTICE DAVID CLARKE - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - Andrew Philip Greenwood Appellant - - - - - - - - - - - - - - - - - - - -

Case No: 200304007 C1 Neutral Citation Number: [2004] EWCA Crim 1388 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Liverpool Crown Court Mr Justice Holland No: 200304007X1 Royal Courts of Justice Strand, London WC2A 2LL Friday 28 th May 2004 Before : LORD JUSTICE WALLER MR JUSTICE DAVIS and MR JUSTICE DAVID CLARKE - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - Andrew Philip Greenwood Appellant - - - - - - - - - - - - - - - - - - - - - (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 Paul Reid QC and Mr Richard Holland (instructed by Mr Paul Cummings, CPS) for the Respondent Mr Andrew Edis QC and Mr Stuart Denney (instructed by Peter Roberts of O’Donnells) for the Appellant - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Waller : Introduction 1. In the early hours of Sunday 16 th June 1996 Janet Murgatroyd, a young woman aged twenty, was attacked and killed near Penwortham New Bridge, Preston, whilst walking home from a night out. She died from a combination of head injuries and eventual drowning in the waters of the River Ribble. Her naked body was later found floating in the river at about midday. A police investigation was undertaken but nobody was charged with her murder. Over three years later, on the 2 nd August 1999, the appellant, then aged twenty-five and a stranger to the victim, approached two police officers on duty and told them that he had murdered the young woman three years previously, following a chance encounter with her. He was arrested and in five interviews throughout that day made repeated and detailed admissions that he was responsible. 2. He was first tried before Leveson J and a jury at the Crown Court in Liverpool in October 2002. The jury were unable to reach a verdict and were discharged from doing so on 24 th October 2002. He was retried at the Crown Court in Liverpool in June 2003 before Holland J and a jury. At the retrial he was convicted of manslaughter by a majority of ten to one. He was later, on 21 st July 2003, sentenced by Holland J to eight years imprisonment. 3. He appeals against conviction by leave of the single judge. The main ground of appeal relates to a ruling by Holland J that certain admissions and other evidence about a man, Parkinson, a boyfriend of the victim, which had formed part of the evidence at the first trial and which the Crown were prepared to allow to go before the jury at the second trial, were not admissible evidence relevant to the issue whether the appellant’s confessions were true and genuine, and his consequential ruling that no evidence relating to Parkinson should be placed before the jury. The further and very much secondary grounds of appeal were (1) that the conviction for manslaughter was inexplicable other than as a compromise if the appellant’s confession was true, in that that confession was only consistent with the appellant being a murderer; (2) that the jury was placed under pressure because of the holiday commitments of one of their number, counsel not having been allowed to see the content of certain jury notes; and (3) that in all the circumstances there was at least a lurking doubt as to the appellant’s guilt. 4. So far as jury pressure was concerned we were able to reveal certain aspects of the jury notes, which demonstrated that there was no substance in the pressure of time point. From the same notes we were also able to reveal that there was no substance in the suggestion that the manslaughter verdict was a compromise. 5. The Crown sought to argue first that Holland J’s ruling in relation to the evidence relating to Parkinson was correct, but in the alternative, that even if it was not correct, the evidence was such that any admission of the evidence relating to Parkinson would have made no difference to the jury’s verdict. This is to be contrasted with the defence position, that there was in any event a lurking doubt. We can say at the outset that the key issue on the appeal relates to the judge’s ruling in relation to the evidence on Parkinson. That evidence was placed before the jury at the first trial, where the jury disagreed. It was not before the jury which convicted at the retrial. It is hardly conceivable that this court could be sure that the verdict was safe if that evidence should have been before the second jury. Equally if that evidence should not have been before the second jury, there were certainly powerful points that the Crown could make as to why the jury were entitled to reach the verdict they did. It is thus with the key issue in mind that we turn to the facts. The Facts 6. Apart from his confessions there was no evidence which connected the appellant with the killing of the victim. The Crown’s case depended entirely on the confessions that the appellant had made. The first confession that the appellant had made was on the 2 nd August 1999, when he approached PC Halliwell and WPC Cunningham as they were on duty in the early hours of the morning. Those officers gave evidence that, during their conversation, the appellant said that he had murdered Janet three years earlier. He said, according to them, that he had punched and kicked her on the riverbank. He had done it because he had talked to her and she had laughed at him. He then returned to his flat and was sick. He had never mentioned it to anybody since and it had been preying on his mind for three years. When they asked if he could narrow the date down he said it was the date of the football match between England and Scotland. A football match between England and Scotland had indeed taken place on Saturday 15 th June 1996. The officers arrested him for murder. The appellant was under the influence of drink when making that confession. 7. Dr Lowe examined him at the police station and the appellant was in a very emotional state, but was considered fit to be interviewed. 8. The second confession was during five police interviews conducted by DCI Kennedy and DC Benson on 2 nd August 1999. We will return to some of the details of these interviews below. His third confession was upon the charge for murder when he said “I wish to say sorry for my actions, which is not like me. I’ll carry on repenting like I’ve done for the past three years.” Fourthly, following his remand into custody, the appellant made further confessions to members of his family, to his cell mates and to a priest. It was during his period in custody that he reflected on the admissions he had been making; and letters written from the cells (which we have not seen), apparently showed a gradual change of heart. The details of the interviews 9. So far as the details of the interviews were concerned, the key question for the jury was obviously whether they were true. That question had to be answered in the context of there having been first a Crimewatch television broadcast shortly after the murder, and in the context of extensive newspaper coverage, both in 1996 shortly after the murder and thereafter. There was particular coverage in June 1999 shortly before the appellant confessed. The case made on behalf of the appellant at the trial was that there were significant details provided by the appellant in interview, which were consistent with the reporting in the newspaper or the Crimewatch programme, but which could not, in fact, have happened on the night when Janet was attacked. Conversely it was the Crown’s case that there were details provided by the appellant in interview which were inconsistent with the newspaper reports, but which were much more consistent with what the experts said was likely to have happened on the night Janet was killed. The Crown’s case in relation to other details, which the defence could say must have come from the newspaper reporting, and which could not be accurate, was because the appellant could not remember all the traumatic events of the night in question, and / or was affected by the drink which he had taken, he might well have supplemented his memory from the accounts in the newspapers. 10. A key point relied on by the defence for example was that in the police interview the appellant said that he met the victim after he crossed Penwortham Old Bridge and was on Broadgate. Penwortham Old Bridge is a footbridge about one third of a mile from Penwortham New Bridge. He told how he had chased Janet from there along Broadgate and over Penwortham New Bridge to the scene where he killed her. It is quite clear that this could not have happened. Many witnesses saw Janet walk down Fishergate Hill, straight onto Penwortham New Bridge. She was clearly not accosted by her killer until she had actually walked onto the New Bridge. The defence made the point that a plan published in the Lancashire Evening Post in June 1996, and then again – and significantly - in June 1999, had shown that a couple had been seen arguing violently at the Old Bridge. The 1999 version suggested that this was where Janet had met her killer. 11. There were however other details in the interview which the Crown suggested were consistent only with the confession being a true confession. The most significant points made by the Crown related to the following:- a. The appellant in interview explained in graphic detail how he had attacked Janet, stripped her naked and thrown her into the river. He described graphically how he watched her body float downstream, saw it get caught for a while, and how it went off again. This was quite inconsistent with the initial theory which the police had as to what had happened, which theory had been published in the newspapers. The evidence of the pathologist, Dr Tapp, was that Janet was not dead before she was put into the river. His evidence was that he had found signs of hypostatic pneumonia, which could not develop unless someone was unconscious, alive, and lying recumbent for at least four hours. His opinion had been that if Janet had been put straight into the river unconscious, she would have been dead after four to five minutes, not allowing that condition to develop. Thus the police’s initial theory was that Janet must have been rendered unconscious and lain on the riverbank for a period of four hours developing hypostatic pneumonia; and that, the river being tidal, when the tide came in it had swept her body off the bank and taken the body upstream to the position where it was ultimately found. The detail provided by the appellant produced a further and, as the Crown suggested, a more likely theory. If the appellant’s version was right, what the experts now suggested was that the body had been put straight into the river and had been taken downstream, but had snagged within a very short space of time and rested on a shoal. While resting on the shoal for at least four hours, badly injured but alive, Janet would have developed hypostatic pneumonia. The tide would then have come in and swept the body upstream to where it was found. So the Crown case at the trial was to ask why, if the appellant was simply taking the newspaper reports as the basis for his confession, did he not stick to the theory initially broadcast? Was that not because he could provide the graphic detail of precisely what happened as he provided in the interviews? b. The appellant had described in interview how the victim had screamed and he had put his hand over her mouth as two men walked past. The post-mortem examination injuries found to her mouth and cheek were consistent with someone forcibly placing their hand over her mouth. Furthermore, he explained in interview how Janet wouldn’t stop the screaming, so he continued to hit her while she was lying on the floor. He drew a diagram of how she was lying on the floor and how he had kicked her. That diagram showed him kicking Janet to the top of her head. The post-mortem examination revealed that there were injuries to the top of Janet’s head consistent with her being kicked there by someone standing above her head, delivering blows in precisely the manner described by the appellant. c. The Crown relied on the appellant having, in the interview, described the victim as wearing a necklace and, when being asked to describe it, describing it as “this thin gold chain”. A thin necklace was in fact found at the scene. A gold rope necklace had been described in the press, but as Holland J put it in the summing up, the description in the press “can’t possibly indicate a thin gold chain of the nature that was found on this occasion, and is to be found in the photographs.” 12. Having regard to the view we have formed on the key issue on this appeal, we do not think there is any purpose in setting out in further detail either the contents of the appellant’s interviews, or the other evidence given at the trial. We repeat what we have already made clear, that there was no evidence other than the confessions to connect the appellant with this murder. There was psychiatric evidence called on behalf of the defence, which suggested that the depressive illness, social phobia, could explain why the appellant made the confessions that he did. It should be stressed that the evidence did not suggest that it was more likely that the appellant would have confessed untruthfully, but if the jury were to take the view that the confession was untrue, it could be explained by the illness from which the appellant suffered. There were then inconsistencies in the version provided by the appellant in his interviews with what must have happened on the evening, and which could be explained on the basis that they had been picked up from the press coverage or the Crimewatch programme. On the other hand the Crown suggested that the appellant’s memory for what had happened on that evening could not, in any event, be perfect, and thus it would not be surprising if features were picked up from the press to supplement such memory as he had. They pointed to the features which they said demonstrated the reliability of the confession. 13. The fact that the jury at the first trial could not agree showed that this was a finely balanced case. Mr Edis suggested that we ought to take into account the fact that when the CPS first considered whether the appellant should be prosecuted at all in the light of the confessions made, they initially took the decision not to do so. This latter point, we have to say, seems to us to be irrelevant, but there is still force in the submission that this was a finely balanced case. It is in that context that we turn to what is the critical issue on the appeal. The Parkinson Evidence and the First Trial 14. At the first trial the defence wished to put in evidence about Parkinson, Janet’s former boyfriend, and about a man called Hayes. Unlike Parkinson, Hayes was previously unknown to Janet, but he was ultimately convicted of stealing Janet’s purse during the night of 15 th /16 th June before she met her death. His account of the theft was that he took her purse when she was lying on the ground incapable through drink near Preston Station, which is on the way from the town centre to Penwortham New Bridge. Both men had been arrested at different times on suspicion of Janet’s murder. Indeed, at the second trial, the prosecution opening contained the following paragraph:- “Considerable police resources were deployed as you might expect during the investigation into Janet’s murder. Let me briefly mention two men whose names are likely to feature during the trial, being men who the police arrested at different times on suspicion of Janet’s murder. The first was John Parkinson, a former boyfriend of Janet, who was arrested on Tuesday 18 th June 1996. The second was Raymond Hayes, who was arrested in November 2000, over a year after the defendant’s confession. Certain agreed facts will be read to you in due course about each of them. Neither was ever charged in relation to Janet’s murder. It is not our intention to set out in any detail what material existed (or did not exist) might have justified their arrest and prosecution. Neither of them is on trial, and we invite you to concentrate on the evidence that you will hear in relation to Andrew Greenwood.” 15. The admissions that the Crown were prepared to make at the second trial included the admissions that were made at the first trial. We were informed that the admissions at the first trial were in the following terms, although for reasons we shall indicate, and as their incompleteness also indicates, there may well in fact be a later draft of the same:- 1. JOHN PARKINSON a) John Parkinson is ___ years old and has previous convictions: attached. b) John Parkinson was married to a woman (not Janet) who divorced him [date] making allegations of violence and rape against him. c) Janet gave an account of violence at the hands of John Parkinson in a tape recorded interview on [date]. d) At 0141 on 16 th June John Parkinson telephoned the home address of Janet from a telephone box on Watery Lane, Preston which is approximately 2/3 miles from the Preston end of Penwortham New Bridge. e) John Parkinson was interviewed under caution while under arrest of [sic] murdering Janet. During that interview he said, among other things, that he had been wearing a checked coloured shirt. A witness who saw him that night said that he was wearing a light coloured top, possibly a jumper. f) Janet’s blood was found on a pair of boxer shorts recovered form Parkinson’s home address at [time place]. g) On June 1996 John Parkinson was disqualified from driving and fined by the Magistrates after information given to the Police by Janet and her friend Victoria Cook had led to his being breathalysed on February 1996. 2. HAYES a) Hayes is ___ years old and has previous convictions: attached b) At some point after the time when Janet left Brendan Connell Hayes stole her purse. He was subsequently convicted of theft of the purse and its contents. c) The chain and locket which belonged to Fiona Watson and which had been in Janet’s purse were recovered on 30 th October 2000. d) Hayes was wearing a white long sleeved shirt and black trousers on the night of the murder. e) Hayes walked alone down Fishergate and Fishergate Hill on the night of the murder after finishing work at [time place]. His home addresses are at [places]. 16. The admissions went before the jury. Also before the jury was evidence that following the break-up of Janet’s relationship with Parkinson, he made repeated nuisance phone calls to her at her family home. This may have some relevance to the call he made at 0141 (Admission 2(d) above). 17. There was also played at the first trial the tape described in Admission 1(c). That was a tape of a conversation between Janet and a female friend which contained considerable detail about Janet’s private life, as well as describing the relationship she had with Parkinson. The conversation had been recorded as part of her friend’s studies into domestic violence issues, and clearly had not been produced in circumstances where Janet would have expected her description to be for public consumption. Leveson J at the first trial was disquieted by the playing of that tape in full. That led to an interchange with counsel on the 18 th October 2002, of which we have a transcript. Later in that trial the judge at that trial was faced with a question from the jury relating to when the purse had been stolen by Hayes. By that stage certain hearsay evidence had been given by a police officer about that question, and the judge was concerned not to allow the jury to be misled by any objection from the defence that giving the jury that information would be an infringement of the hearsay rule. Mr Edis for the appellant on that occasion was pressing the judge to be strict about the hearsay rules on the basis that having put in the evidence in the admissions as they were the Crown could meet that evidence by calling Parkinson or Hayes, or any other evidence, to establish or tend to establish that neither of those two individuals was responsible for the killing of Janet. 18. There was considerable debate at the first trial as to how the judge was to deal with the admissions relating to Hayes and Parkinson. Mr Edis made clear that he was not going to suggest to the jury that they could be satisfied that either Parkinson or Hayes had in fact murdered Janet. His submission was to be “simply to suggest that either of these two men might have been the murderer, and in those circumstances they could not be sure that Andrew Greenwood is the murderer.” Leveson J made it equally clear that he would be directing the jury that they could not “speculate”. 19. Leveson J asked the Crown to clarify its position and Mr Wright QC, who then prosecuted, said: “So far as the material that has been elicited by the defence in this case is concerned, we took the view that we would not stand in the way of the defence seeking to elicit that material, notwithstanding that on occasions there arises a question mark over strictly its admissibility.” The judge was concerned that much of the material might not be admissible and was concerned about the difficulty in which that placed him in giving a direction to the jury. There finally took place this interchange between the judge and Mr Wright: “Leveson J: Mr Wright you did not comment on my approach to Messrs Hayes and Parkinson. I would be interested for your submissions on that topic. Mr Wright: I propose to address the jury that those details as far as Hayes and Parkinson are concerned are of almost no relevance in this case whatsoever. Leveson J – The fact is that if the jury are not satisfied that the defendant honestly and truthfully made these admissions the case is finished. Mr Wright – That is absolutely correct, and the way I propose to address the jury about it. This is not a trial about Parkinson and Hayes. So far as the details listed about Parkinson and Hayes is concerned of course the defence are entitled to elicit certain details. Leveson J – Yes, I do not think I have ever suggested the contrary, I’m just concerned as to the impact and the question from the jury is very perceptive. There has to be sufficient evidence to justify the police to prosecute. In relation to Hayes it is slightly different from Parkinson because of course Hayes was only arrested after this defendant had admitted that he had admitted. Parkinson was doubtless the subject of a microscopic examination over a very considerable time. Mr Wright – Oh he was. Leveson J – I do not ask you to comment, I do not need an answer, it is a legitimate inference, given the fact that he was arrested within hours or days of the murder. Mr Wright – Yes Leveson J – There it is. Mr Wright - and his clothing taken for a forensic examination made Leveson J – Absolutely understandable that Mr Wright - I am sorry, I did not understand the invitation that Your Lordship extended to me so far as Parkinson and Hayes were concerned, other than to give you my . . . Leveson J – Do you disagree with what I said to Mr Edis? Mr Wright – No I do not disagree about it.” 20. Mr Edis then made further points about the ability of the Crown to have called evidence, for example about an alibi for Parkinson, which depended entirely upon his girlfriend, and the judge made clear that he was going to reflect on the way in which he would deal with it in his summing up. 21. Ultimately, having discussed the matter further with counsel on Monday 21 st October, he summed the matter up to the jury so far as Parkinson was concerned in the following way: “Not surprisingly, a substantial police investigation commenced and in the light of what you know about John Parkinson it is clear that the police looked very carefully at him and went so far as to arrest him on suspicion of murder and interview him under caution. You have seen the admissions read to you by Mr Edis. He was a man with previous convictions, separated from his wife, who in divorce proceedings alleged the use of violence and rape, and in respect of whom Janet has given an account of how he frequently used serious violence upon her. Their relationship had ended months earlier although he had continued to contact her. Janet’s friend, Victoria Cook, said that a man whom she understood to be John Parkinson, although she had not then met him, telephoned at the end of January or beginning of February saying: “You’re going to die, you grassing bitch.” He continued to make phone calls to Janet’s mother’s home up to and including June 1996. He pestered to such extent that she considered obtaining an injunction to stop them. In that context you can consider that at 1.41am on 16 th June he telephoned Janet’s home from a phone box in Watery Lane, Preston. That phone box is 1,000 yards from Penwortham Bridge. Blood-stained underwear both of his and hers was found at his home, although the blood-stained area I think were in the crotch area. You may remember not only the evidence of the violence which Parkinson treated her with while they were together but also that it was alleged that he had stolen things from Janet’s home. Dr Moore found no dirt stains or vegetation on these items and no evidence to indicate that they were work during the incident. [Note: It would seem there must at least have been an admission as to Janet’s knickers being found at Parkinson’s flat and that would demonstrate that we probably have not got the final version of the admissions] There was another silent phone call the following day before Janet’s body was identified. Mr Edis submits that you can conclude that it is possible that he murdered Janet and that if you did come to that conclusion it would follow that you could not be sure that the defendant did. Bear in mind you are not trying John Parkinson. All the material which may be relevant to him is not necessarily before you and your duty is to try the case according to the evidence without speculating whether or why someone else is or is not charged with an offence. On the evidence you have heard you might have no difficulty in concluding from the investigations and the police coverage that you have seen that the police were very keen to identify and prosecute whoever they did consider killed Janet. You may well conclude that John Parkinson treated Janet appallingly badly and was threatening and abusive towards her but you cannot start to speculate as to what considerations influenced the way the police did or did not deal with him. You cannot speculate one way or the other.” 22. He then dealt with Raymond Hayes in a very similar way, describing the details of what had been admitted, and finally dealing with Mr Edis’ suggestion that “Hayes may have committed this murder”. The judge said this: “Approach this submission as you approach everything else in this case, on the basis of evidence. You must not speculate in the absence of evidence or about the absence of evidence. It is, of course, a matter for you but you may think that the better course is to concentrate on what the defendant said and what conclusions you reach about his honesty and accuracy. In that regard Mr Edis went on because having spoken about Parkinson and Hayes and the possibilities he then said this: “This material will drive you to consider three very important features; firstly, whether the admissions themselves ring true. Secondly, whether there is any other explanation for his making of admissions and, thirdly, whether really there is any support for the proposition that he was the murderer”. Let me say at once I entirely agree that these are the issues which you must consider, irrespective of Parkinson and Hayes, to come to the ultimate question: are we sure that the defendant’s admissions that he killed Janet were honest and accurate? If you are sure then neither John Parkinson nor Raymond Hayes could have killed her. If you are not sure it does not matter who else may have been responsible because if you are not sure you find the defendant not guilty.” 23. It was Mr Edis’ submission before us on this appeal that whatever anxieties Leveson J may have had about how he was to direct the jury in relation to the admissions made in relation to Parkinson and Hayes, he ultimately summed up the matter to the jury in the correct and appropriate fashion. His complaint is that he was not allowed to put the material on Parkinson before the jury at the second trial and obtain a similar direction from Holland J. The Trial before Holland J 24. We have already read the paragraph from the opening of prosecuting counsel, (now Mr Reid QC in place of Mr Wright QC), demonstrating that the Crown’s position was that admissions would be made in relation to Parkinson and Hayes at the retrial. There was, it seems, some anxiety about whether the defence should be entitled to play the tape which had given Leveson J such anxiety at the first trial. That had not been resolved, before Holland J sought submissions in relation to whether any of the admissions or evidence about Parkinson and Hayes should in fact go in. We have a transcript of the submissions which were made on Tuesday 10 th June 2002. On that day the judge made clear that he needed “very careful submissions from both sides as to the materiality of so much of this evidence as relates to Mr Parkinson. I fully understand and I have no difficulty with the jury being told that he was arrested, but the police decided not to proceed, with the result that by 1999 there was nobody in the frame, which I should have thought was crucial from both sides point of view.” The judge wanted help as to “the materiality of that which we have heard about Mr Parkinson.” He was of course equally concerned with the evidence relating to Hayes, but it is unnecessary to cover that aspect in great detail, since the judge’s ultimate ruling allowed the evidence in relation to Mr Hayes to go before the jury. 25. Mr Edis’ submission to Holland J was that he wished on behalf of the appellant to put the admissions and other evidence relating to Parkinson before the jury on the following basis. He wished to make the submission that it was entirely possible, perhaps even likely, that the murder was committed by Parkinson. He explained to Holland J that during the course of the first trial the defence encountered some difficulty in relation to how the evidence to support that suggestion should be presented to the jury, because some of it was hearsay, and he said that there had been a brief discussion in relation to the case of Blastland . It is most unfortunate that no full reference was made to Regina v Blastland [1986] 1 AC41 for reasons which will become apparent. Mr Reid for the prosecution informed Holland J of the way the matter had been dealt with by Leveson J in his summing up. He further reminded the judge of the way he had opened the case, referring to Parkinson and Hayes. He further made clear that he felt that, having regard to the way the matter had been dealt with at the first trial, the prosecution should deal with it in the same way at this trial, but the judge pressed Mr Reid on how certain aspects of the evidence would be dealt with. For example, it seems that the Crown were prepared to make admissions about Parkinson having in his possession a pair of his boxer shorts with her blood on them and a pair of her knickers with her blood on them in the crotch area; and an admission that no knickers were recovered from the murder scene. The judge (see page 7 line 9 and following) was concerned as to what the jury would make of these admissions, since they would not have all the material available to them, by reference to which the Crown would wish to suggest that no inference should be drawn against Parkinson by reference to such admissions. Mr Reid developed arguments as to why those items of evidence contained in the admissions were capable of a different interpretation and did not point to the guilt of Parkinson. He did so by reference to evidence from Dr Moore, and evidence from Janet’s mother, who would say that the knickers found at Parkinson’s house were not the type that she would expect Janet to wear when she went out at the weekend. Dr. Moore’s evidence was to the effect that the knickers found at Parkinson’s house were clean, “other than the diffuse area of bleeding at the crotch region.” That evidence supported the view that it was unlikely that they would have been worn by Janet on the night of her death since it would have been expected that dirt stains or vegetation would have been found upon them. 26. Mr Reid informed us on the appeal that he was in fact concerned as to whether the defence might not seek to make a connection with the knickers which had disappeared from the crime scene, and the knickers which had been found in Parkinson’s possession. Mr Reid’s submission was that that would have been an unfair point to take, having regard to the evidence of Dr Moore and the evidence of Janet’s mother, and would have allowed a misleading impression to be given to the jury. We are not quite clear what the difficulty was because Leveson J’s summing up shows that Dr Moore’s evidence was before the jury at the first trial. There was no reason why that evidence and the evidence of Janet’s mother should not be before the jury at the second trial. 27. This interchange between Holland J and counsel for the Crown and counsel for the appellant took place shortly before the voir dire during which the judge was to listen to submissions as to whether the confessions made by the appellant should be admissible in evidence. The judge wanted further time to consider the matter and, indeed without at that stage calling on Mr Edis to reply fully, adjourned the matter so that he could form some provisional view. The voir dire then took place and it maybe that all sides thought that they had made their position clear, because without further argument the judge included in his ruling on the voir dire his ruling on the Parkinson / Hayes aspect. The Ruling 28. He commenced the ruling on this aspect in the following way: “I then turned to the other problem which arises as follows: Mr Greenwood’s essential case is that by August 1999 a combination of factors resulted in an honest but mistaken belief that he had murdered Janet, hence his confession to the police. Later he came to realize that he was or might be mistaken and that his confession could not be relied upon. I emphasise that he personally does not identify any other individual as being the actual murderer. If innocent he has no idea who has done it. Indeed, it was in the absence of any other known suspect that he approached the police. In the result central to this case is Mr Greenwood, and the extent to which having regard to his conduct and contentions the jury can be sure and satisfied that he was guilty, emphasising that his conduct other than in confessing, raised no suspicion of involvement whether on the night or at any other subsequent time. An obvious corollary to this case the proposition that someone unknown to Mr Greenwood and unidentified by him was the murderer. In advancing this defence his legal advisors have identified two persons as particular suspects, and wish by way of a secondary defence to contend to the jury that they cannot be sure and satisfied that either of these two men did not commit the crime. In the course of the first trial the defence was permitted to raise this secondary defence and it was understandably assumed that the same position would prevail in this retrial. Happily or unhappily, I am not content with the earlier solution for reasons that will become apparent, and on my own initiative I have sought submissions on this point.” 29. He then reached his conclusions in relation to Hayes. He, having summarised the position so far as Hayes was concerned, concluded as follows: “First, the available evidence as to Mr Hayes is plainly admissible. It immediately concerns and contributes to the res gestae and once before the jury can be made the subject of whatever comment Mr Edis deems to be appropriate. My present concern is as to the form in which it is admitted.” 30. The judge then referred to the fact that the evidence could be put forward in the form of admissions, but ruled that he did not regard the admissions as put before the first jury as adequate. He said: “If the jury is to receive this evidence in this matter so that comment can be fairly made upon it, then the admissions must set out the evidence fully, albeit concisely. As presently drafted they do not set out the evidence implicating Mr Hayes, at least not in any coherent form, and that importantly they do not set out his account, such being adjudged by the prosecution as not open to rebuttal by way of evidence. It is plain that if one is to comment to this jury that Mr Hayes may be the murderer then no jury can reasonably rule upon that comment and take it into their consideration until they have proper material for that purpose, which material must include what Mr Hayes himself has said about the matter. Plainly once they know that they can be invited to take the view that he was lying, but you cannot get to that without having a full picture, and without having a full picture none of this has any potentially probative significance and thus is inadmissible. Of course I recognise that, and it is not for the defence to prove that Mr Hayes is the murderer, the only concern they have, and proper concern, is whether the jury can exclude him as a murderer, but even that exercise can only be properly undertaken by a jury on the basis of admissible evidence, otherwise they embark upon uncontrolled speculation. It would not, I agree, take much to put the admissions in the right shape to accommodate these concerns, but that will have to be done if this is to be the course taken in this particular trial.” 31. So far as Parkinson was concerned the judge ruled: “I then turn to the more difficult problem of John Parkinson, the other prospective suspect. As at the date of death the only person known to be potentially hostile and violent towards the victim was this man, a former boyfriend. Effectively on the basis of motive he was arrested at an early stage of this investigation on suspicion of murder, only to be released without charge. At the first trial at the request of the defence the prosecution made a substantial series of admissions relating to this man, such including production of his criminal record. The defence further played to the jury a tape recording of the victim complaining about this conduct, a tape made whilst making a contribution to some university project on domestic violence. On the basis of this material Mr Edis QC made submissions to the then jury to the effect that they could not be sure and satisfied Parkinson was not the murderer. For his part the then trial judge directed the jury not to speculate. In making his submissions to me Mr Edis raises the following points. He first of all submits that this part of Mr Greenwood’s defence is fundamental. He further submits that I have no discretion to exclude admissible material relied upon by the defence. I respond as follows: First, although I do not regard this as itself a vital objection, I cannot regard the invoking of the suspicion about Mr Parkinson as fundamental to Mr Greenwood’s defence. As I have already pointed out, his defence raises no inferences at all with respect to any particular person. Obviously if there is material to connect the individual to the offence, as is the case with Mr Hayes, then it is proper that it should be put before the jury. But absent any such material then different considerations arise. It is perfectly plain that this problem is not fundamental to his defence, the query is is it a proper part of it as a peripheral issue? Turning then to the problem, I agree that I have no discretion to exclude admissible evidence relied upon by the defence. That begs the question as to whether any evidence is admissible. It is relevant and potentially probative with respect to some material issue? If the material is not admissible then the jury can do no more than speculate to no point. That then begs the question as to whether there is any evidence at all to suggest that Mr Parkinson’s activities on the night in question were relevant to the issue as to who killed Janet and as to that presently there is no evidence to involve him at all with res gestae . The only evidence presently to be put before this jury as to his activities on the night in question is to the effect that he subsequently admitted making a nuisance phone call to the victim’s house from a public telephone box situation two thirds of a mile away from the scene of the murder, doing so at 1.41am. If the Richardson brothers walked for 10 or 15 minutes after being seen on the CCTV at 1.23am before seeing the presumed offender at the locus then this evidence about Parkinson arguably amounts to an alibi and certainly does not begin to implicate him in any continuing activities at the locus from say 1.33 onwards. There is no evidence at all to suggest involvement even as a possibility that the jury cannot exclude. Any submissions based on the material that is therefore potentially to be put before the jury are simply an invitation to speculate on matters that are peripheral to that which is central to the case. My further concern which underlies that view is as follows; even if I were to allow the defence to proceed as at the first trial I would insist on all the material being expanded so as to include all the potential relevant material and not a selection thereof. An excellent example of that which caused immediate concern to me the first time I saw it and continues to cause concern is constituted by admissions 38, 39 and 40 in the proposed list. They read as follows: 38. A pair of knickers, exhibit MDM2, was found in the search at the home of John Parkinson on 19 th June 1996. 39. Examination of the said knickers revealed a diffuse area of blood-staining in the crotch 40. A DNA comparison of the said blood matched that of the sample taken from Janet deceased. As presently presented they have the potential to support a submission that at some time between the late afternoon of 15 th June when witnesses saw knickers at the scene and the arrival of the police when no knickers were present Mr Parkinson returned to the locus and took the knickers that were then there, subsequently keeping such so as to be recovered by the police. As Mr Reid pointed out in answer to these submissions, there is an abundance of further evidence forensic and from Janet’s mother which appertains to the potential relevance of the knickers which were found at Mr Parkinson’s house and which indeed served to persuade the police that they were not worn at the material time by Janet. So as soon as one contemplates the evidence expansion needed to accommodate all that which would be required to enable the jury to form any proper judgment as to whether this material raised a possibility that Mr Parkinson was involved then the peripheral and essentially irrelevant nature of this issue becomes painfully obvious. I pick out just one example, there are other of these admissions which beg questions rather than answer them. If there was to be a full and proper submission to the jury that they could not be sure Mr Parkinson was not the murderer, then in those circumstances there would have to be proper material in full before this jury so that the jury could make a proper and careful judgment about the matter and could reach a conclusion that would be fair to the merits of this case.” 32. As regards the above ruling there are certain points we can make straight away. First, the judge was aware that he could not exclude admissible evidence. Furthermore he applied the correct test, that is to say whether the material sought to be put in on behalf of the appellant was “relevant and potentially probative with respect to some material issue”. Second, it may be possible in some circumstances for the judge to rule that evidence which the defence is seeking to put in should not be put in because there is other material which demonstrates that the evidence does not go to proving the point the defence seek to use it for. In other words, the judge may have the ability to control the defence putting in evidence which would mislead the jury. But these circumstances will be rare since the Crown will in most circumstances be able to put in any countervailing evidence placing that which the defence want to put in in its proper context. We would add (and this is why we have quoted the passage relevant to this aspect in paragraph 30 above) that we have found it strange that the judge in relation to Hayes should have dictated the putting in of further evidence by the Crown rather than leaving it to the Crown to decide that which they wanted to put in in order to place the Hayes material in its proper context. 33. We have found difficult the judge’s assertion that material pointing to Parkinson or Hayes as a possible murderer would be relevant only to some “secondary” defence. It is true that the appellant or those representing him could not prove that either Parkinson or Hayes was the murderer, but in considering whether the appellant was the murderer material that pointed to the possibility of Parkinson or Hayes being the murderer, would seem prima facie to be relevant to the key issue, i.e. whether the appellant was the murderer. 34. The judge in his ruling concentrates on certain aspects of the evidence, including the knickers found in the possession of Parkinson, and the telephone call made by Parkinson from a phone box close to the scene of the crime. Without for the moment considering his ruling on those pieces of evidence, his ruling ultimately excluded any evidence as to Parkinson’s possible motive. Thus his ruling excluded establishing the fact that Parkinson was a former boyfriend of Janet and was known to be hostile and violent towards her. This became clearer still in the direction that the judge gave to the jury in his summing up, which was as follows:- “Now earlier in the trial, at the beginning of the trial, you did hear from time to time something about another man called Mr Parkinson, a former boyfriend of Janet who at the material time was hostile to her and indeed you were told, no doubt correctly, that at a very early stage in this matter Mr Parkinson was arrested but was never charged and the police have never proceeded against him. You have not heard any more about Mr Parkinson because I have judged and made a ruling in your absence as to whether anything to do with Mr Parkinson was conceivably relevant to this matter. Whereas Mr Hayes is undoubtedly a part of what happened that night, my ruling was there was not any evidence at all to connect Mr Parkinson with the events of that night and in the absence of any evidence it would be total speculation to look further into him or his role, speculation unfounded by any evidence. That was my ruling. It means my direction now is to put Mr Parkinson completely out of your mind. You will notice that there are no admissions . . . there is not material about him. That is quite deliberate. It is because he is irrelevant.” 35. It seems to us that there was no real basis on which the judge could properly distinguish between the evidence concerning Hayes and that concerning Parkinson. Insofar as he held that Hayes’ theft of Janet’s purse placed him within the res gestae of the events of that night, it is to be noted that Parkinson’s presence nearby when he made the 0141 telephone call could be said to do likewise in his case. Furthermore he, unlike Hayes, was a man known to Janet who might have been considered to have a motive. 36. Whatever the position be about individual items of evidence about which the judge may be able to rule that they have no probative value in relation to Parkinson, we find it difficult to comprehend that when A is charged with murder he should not be entitled as part of his defence to seek to establish that B had a motive to murder the victim. 37. As we have indicated it is, we believe, most unfortunate that Regina v Blastland was not more carefully studied. That was a case in which the appellant was charged with buggery and murder. The case for the prosecution was that Blastland had forcibly buggered a twelve year old boy and then strangled him with a scarf. It was Blastland’s case that although he had attempted to bugger the boy another, M, had subsequently killed him. At the trial an attempt was made to call a number of witnesses to give evidence that M had said, before the boy’s body had been discovered, that a young boy had been murdered. The judge had ruled that that evidence was hearsay and inadmissible. The judge had also refused an application on behalf of Blastland to call M and treat him as a hostile witness. The decision was accordingly concerned in the main with the application of the hearsay rule. The decision of course raises difficulties for a defendant where the only means by which a defendant can seek to prove a fact is by reference to some hearsay evidence. 38. It seems as though the prosecution may often commendably take the view that such a strict application of the hearsay rule could lead to the possibility of injustice. Thus it was in this case that at the first trial the prosecution were prepared to make some admissions, even though the defence might have been in difficulty establishing the facts having regard to the hearsay rule. So it was that Mr Edis, for the appellant before us, was able to say that it is not the hearsay rule which provides any difficulty for his client in this case. If both parties admit facts, there is no difficulty about how such facts might be proved. 39. What, however, is of some importance is that, as one sees from the speech of Lord Bridge in Blastland , a speech with which all their Lordships agreed, certain evidence relating to M was given and properly given. At page 51 Lord Bridge said this:- “If the appellant’s account was true, then Karl Fletcher,at some time in the evening after his encounter with the appellant, must have been buggered and murdered by another man. A central feature of the presentation of the appellant’s defence at the trial was to invite the jury to draw the inference that that other man was M. It was certainly known to the jury that M had come under suspicion after Karl’s murder, since there was a formal admission by the prosecution in the following terms: “M was fully investigated by the police after the death of Karl, including medical examination and submission of his clothing for forensic examination”. The medical examination revealed an injury to M’s penis, the significance of which was canvassed with the medical experts who gave evidence. The forensic examination disclosed nothing to connect M with Karl. In addition there were formal admissions by the prosecution showing M to have been known to engage in the past in homosexual activities with adults but not with children. There were also both formal admissions and evidence relating to M’s movements on the evening of Karl’s murder. All this was, I have no doubt, properly put before the jury as relevant and admissible material which they could be invited to weigh in the scales against the powerful case adduced by the Crown in deciding whether it might have been M, not the appellant, who murdered Karl Fletcher.” 40. The practice of the Crown being prepared to make admissions in relation to facts which “might” point to a third party having committed the crime, which the defendant denies having committed, is long-standing. Such evidence is relevant and admissible to be weighed in the scales against the evidence adduced by the Crown that it was the defendant they have charged. Of course the Crown cannot be forced to make admissions if they do not accept that the admission points to the possibility of a third party being the perpetrator. Furthermore, if they are prepared to make an admission they can seek other admissions from the defence or put in evidence of their own in order that the admission can go fairly in its context before the jury. 41. The position seems to us to be as follows:- i) If there is no issue that there has been a murder and the person on trial is saying that he did not do it, then he must by inference be asserting that someone else did. There is no obligation on a defendant to establish that someone else did the murder but, if he has evidence which proves that someone else did the murder, he must be able to adduce it. If he has any evidence that points to another person having a motive to do it he must be entitled to produce evidence of that motive. If he has any other evidence that would point to the possibility that another person might have done the murder he should be entitled to produce it. ii) The fact that material of the above description comes from disclosure by the Crown has placed prosecutors in the past and will continue to do so under some obligation to make admissions, insofar as those admissions are relevant to the issue, whether the defendant committed the crime, of evidence which might tend to show that someone else did it. iii) There was no obligation on the Crown in this case to call Parkinson or Hayes but if the evidence pointing to them was powerful enough the Crown may have to call evidence to rebut the same and in this case, for example, they could (if they thought it necessary) have called the alibi evidence which they would have asserted exculpated Parkinson. iv) On the whole, the question of what admissions the Crown are prepared to make, or what evidence the Crown should call, should be left to the prosecution. Clearly the judge is entitled to express a view on whether evidence is admissible or relevant, but the evidence which the Crown are prepared to put forward should on the whole be left to them. It does not seem to us that the Crown were saying that the evidence of the telephone call made at 1.41 on the 16 th June by Parkinson from a telephone box two-thirds of a mile away from the Penwortham New Bridge was irrelevant or inadmissible. The judge’s ruling “If the Richardson brothers’ walk for ten to fifteen minutes after being seen on the CCTV at 1.23 before seeing the presumed offender at the locus, then this evidence about Parkinson arguably amounts to an alibi, and certainly does not begin to implicate him . . . .” seems to us to be taking a matter away from the jury, which the jury should have been entitled to consider. The fact that something may arguably amount to an alibi should not prevent the appellant being entitled to put before the jury that Parkinson was, in fact, two-thirds of a mile away from the murder scene on the morning of the murder, and was a person who had previously had a relationship with the victim and had a motive in the sense of having been violent towards the victim in the past. v) As regards the knickers, it may be that the admissions in relation to the same, without further evidence which discounted their relevance, would have given the jury a misleading impression. That, as we would see it, was very much a matter for the Crown. It seems to have been dealt with at the first trial by reference to the evidence of Dr Moore. But one can see just the possibility that if the defence were not prepared to act in a way which avoided the jury being given a misleading impression, the circumstances might have arisen where the judge would have to make some ruling. vi) But the important point is that it cannot have been right to take away from the jury’s considerations all aspects of Parkinson, including that he had been the victim’s boyfriend and had acted violently to her in the past, and indeed was in the vicinity on the evening of her murder. 42. The above being our view, it seems to us impossible to hold that this conviction was safe. As we have already indicated, the Crown had strong points to make on the interviews, but those were strong points that they made at the first trial and which produced a situation in which the jury did not agree. It would in our view not be right now to seek to place this court in the position of a jury examining the evidence in minute detail, when what was an important aspect of the argument which the appellant wished to place before the jury was removed from him. We accordingly must allow this appeal and quash the conviction.

2004_05_28-255.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/1388/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/1388

da1c83ceecacf9fa079846328e76119a5b23ba1c6997ec8bbdde7b825cc46df8

[2024] EWCA Crim 286

EWCA_Crim_286

2024-03-14

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. Neutral Citation No: [2024] EWCA Crim 286 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO: 202400398 A3 Royal Courts of Justice Strand London WC2A 2LL Thursday 14 March 2024 Before: THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION LORD JUSTICE HOLROYDE MR JUSTICE GOOSE and HIS HONOUR JUDGE LICKLEY KC REFERENCE BY THE ATTORNEY-GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 REX v DARREN STANLEY FEVE __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MR TOM LITTLE KC appeared on behalf of the Solicitor General MR NICHOLAS de la POER KC appeared on behalf of the Offender _________ J U D G M E N T (Approved) THE VICE-PRESIDENT: 1. After a trial in the Crown Court at Kingston upon Hull before His Honour Judge Thackray KC and a jury, Darren Feve (“the offender”) was convicted of doing an act tending and intended to pervert the course of public justice. 2. On 8 January 2024 he was sentenced to 12 months' imprisonment, suspended for 12 months, with a requirement of 200 hours' unpaid work. His Majesty's Solicitor General believes that sentence to be unduly lenient. Application is accordingly made, pursuant to s.36 Criminal Justice Act 1988, for leave to refer the case to this court so that the sentencing may be reviewed. 3. A brief summary of the facts is sufficient for present purposes. The offender's stepson, Kian Feve, and another young man, Robert Wattam, were supplying class A drugs in the Grimsby area. Around midnight on 19/20 March 2023 they were involved in an incident in Grimsby in which one of their customers, Jack Howes, was stabbed to death by Kian Feve. In the early hours of the morning of 20 March, Kian Feve and Wattam travelled by taxi to the offender's home in Scunthorpe. Kian Feve went into the house for a few minutes to change his clothes. 4. On 21 March, Kian Feve exchanged text messages with the offender in which Kian Feve was asking where his passport was. 5. On the afternoon of 23 March, police went to the offender's home in search of Kian Feve. He was not there. That evening, the offender spoke to investigating officers and made a formal witness statement. He had not been told what they were investigating, but he said that he assumed it must be something serious: he had been made aware by neighbours that armed officers were searching his home. He stated that on the evening of 19 March he had been at home. He said that Kian Feve came to the house at around about 8 pm, went upstairs to play video games with his younger brother and was still there when the offender fell asleep around 9 to 10 pm. In fact Kian Feve was in Grimsby throughout that evening. 6. The offender also explained in his statement that Kian Feve had started dealing drugs when aged 17. The offender would not tolerate such behaviour and he had required Kian Feve to leave the family home once he attained the age of 18. He told the officers that he did not know where Kian Feve was, but would try to locate him and would bring him to a police station by midnight. He did so. 7. The particulars of the indictment against the offender alleged that on 23 March he did an act which had a tendency to pervert the course of public justice in that he told the police that Kian Feve was at home during the evening of 19 March, knowing that that was not the case. 8. The offender's case at trial was that he had given a truthful account to the police, and if he had made any error in that account it was only because he was confusing one date with another. He relied on evidence as to his diabetic condition as a possible cause of confusion. 9. The offender was convicted, as we have said. Kian Feve was convicted of murder, Wattam of manslaughter. 10. The offender (now aged 56) had no previous convictions. He had always treated his stepson as his own son. He also had other children. Following the breakdown of his marriage, he had for many years cared for them as a single parent whilst also working. At the time of sentencing he was living with a daughter aged 19, and a son aged 17, in rented accommodation which the family had occupied for several years and which he feared they would lose if he was imprisoned. 11. At the sentencing hearing the judge was assisted by a pre-sentence report. He considered the Sentencing Council's definitive guideline for offences of perverting the course of justice (“the Perverting guideline"). He found that the offence was one of category A high culpability, because the underlying offence of murder could not be more serious, but category 3 harm because in the event it had only had a limited impact on the administration of justice. The guideline's starting point was therefore 1 year's custody with a range of 9 months to 2 years. The judge identified as mitigation the fact that the offender was a hard-working family man who could not have done more to dissuade Kian Feve from the disastrous decision he had taken in adopting a life of crime. 12. The judge stated his conclusion as follows in his sentencing remarks: "... for the offence of perverting the course of public justice, the offence is so serious that only a custodial sentence can be justified. Taking into account all of the aggravating and mitigating factors, the least sentence that could be justified is one of 12 months. In accordance with the Custodial and Community Sentence Guidelines, I have to consider whether that sentence can be suspended. I am satisfied that you can be rehabilitated in the community and your risk can be managed in the community. An immediate custodial sentence would have a devastating effect upon you and your family. I am able to achieve appropriate punishment within the community, and so the sentence will be suspended for a period of 12 months. There will be 200 hours' unpaid work." 13. For the Solicitor General, Mr Little KC submits that the sentence was unduly lenient because appropriate punishment in this case could only be achieved by immediate imprisonment, and the judge was therefore wrong to suspend the sentence. He suggests that the sentence could arguably have been longer than 12 months, but he does not submit that this court should increase its length. 14. Mr Little points to s57(2)(b) of the Sentencing Code, which states as one of the purposes of sentencing “the reduction of crime (including its reduction by deterrence)”. He submits that it is clear from long-established case law that the offence of perverting the course of justice is so serious that it is almost always necessary to impose an immediate custodial sentence unless there are exceptional circumstances. He points to statements to that effect in, for example, Attorney-General's Reference No 35 of 2009 (R v Binstead) [2009] EWCA Crim 1375 and Attorney-General's Reference (R v Graham) [2020] EWCA Crim 1693. He submits that the Perverting guideline, which came into effect on 1 October 2023, was not intended to change the existing law and did not alter that established principle. In the present case, he submits, the judge identified no exceptional circumstances which could justify suspension of the sentence, and there were none. 15. Mr Little goes on to refer to the Sentencing Council's Imposition guideline in relation to the suspending of a custodial sentence. The judge in his sentencing remarks referred to the three factors identified in that guideline as indicating that suspension may be appropriate: realistic prospect of rehabilitation, strong personal mitigation, and immediate custody would result in significant harmful impact upon others. Mr Little points out that one of the factors pointing away from suspension is that appropriate punishment can only be achieved by immediate custody. He submits that in the context of cases of perverting the course of justice, that factor must be looked at through the prism of the case law on which he relies and should in general, he submits, be determinative. 16. For the offender, Mr de la Poer KC submits that the guideline supersedes the approach set out in earlier case law, and that a sentence for an offence of this nature may be suspended even without identifying exceptional circumstances. He submits that there was therefore no error of principle in the approach taken by the judge and the sentence was not unduly lenient. 17. In the alternative, Mr de la Poer submits that if exceptional circumstances be required, they were present in this case. He points to the following matters: the offender had done his best to turn Kian Feve away from drug dealing; there was no evidence that the offender knew on 23 March that the police were investigating a murder; he had made good his assurance that he would deliver Kian Feve to the police within a short time; his false statement had no material impact on the investigation; and immediate custody would have had a devastating impact on him and his family. In those circumstances, it is submitted, a suspended sentence was within the range properly open to the judge. 18. As a further alternative, Mr de la Poer points to the reports helpfully prepared for this court which show that the offender has been carrying out his unpaid work and complying with the other requirements of his suspended sentence order, and that his health has deteriorated since sentence. We understand that the offender has already completed more than one-third of the hours of unpaid work he has to perform. It is submitted that even if the sentence is found to have been unduly lenient, the court should exercise its discretion not to increase it. 19. We are grateful to both counsel for their very helpful written and oral submissions. Having reflected on those submissions our conclusions are as follows. 20. In R v Abdulwahab [2018] EWCA Crim 1399 at [14] this court said: "... conduct which tends and is intended to pervert the course of justice strikes at the heart of the administration of justice and almost invariably calls for a custodial sentence. Deterrence is an important aim of sentencing in such cases, although, as was pointed out in Radcliffe , the necessary deterrence may sometimes be achieved by the imposition of an immediate custodial sentence without necessarily requiring a sentence of great length." The court went on to say, at [20]: "The Sentencing Council's Imposition Guideline specifically indicates that a factor indicating that it would not be appropriate to suspend a prison sentence is where appropriate punishment can only be achieved by immediate custody. That is so in this case. and will be so in most cases of attempting to pervert the course of public justice." That decision of the court was cited in Attorney-General's Reference (R v Graham ), to which we have already referred. At [21] this court said: "Overall the general trend of the authorities is that in cases of perverting the course of justice an immediate custodial sentence is almost invariably to be imposed. Although the language varies somewhat from case to case, that is the gist of all the authorities. Accordingly, there needs to be a high degree of exceptionality if an immediate custodial sentence is not to be imposed for such offending." Those two cases, which predate the Perverting guideline, reflect the long-established principles that doing acts tending and intended to pervert the course of justice is by its nature always a very serious offence, and that the inherent seriousness of such conduct almost always requires an immediate custodial sentence. References to "exceptional circumstances", and cognate terms, are a convenient shorthand; but in our view they simply emphasise that there will be few cases in which the normal consequence of immediate custody can properly be avoided, and that very compelling reasons will be needed if immediate custody is to be avoided. We do not think it helpful to treat such references as imposing a separate legal test of exceptionality. 21. By s.59 of the Sentencing Code, every court must in sentencing follow any relevant sentencing guidelines, unless satisfied that it will be contrary to the interests of justice to do so in all the circumstances of a particular case. It follows that in cases of this nature sentencers must now focus on the Perverting guideline. 22. The Perverting guideline requires the sentencer first to categorise an offence by reference to culpability and harm factors. One of the culpability factors is the seriousness of the underlying offence: the more serious that offence, the higher the starting point for the perverting offence. The sentencing grid sets out the starting point and category ranges for nine separate categories. In each instance the starting point is a custodial term. In the usual way, the starting point may be adjusted upwards or downwards on consideration of the balance of aggravating and mitigating factors; but it is only in category C3 (cases of lower culpability and limited harm) that the bottom end of the range encompasses a community order. It follows that a custodial sentence will be inevitable in the great majority of cases. The guideline thus reflects, and does not alter, the established principles as to the inherent seriousness, and usual consequences, of such offences. 23. Must the custodial sentence be of immediate effect? If the appropriate sentence exceeds 2 years, it can only be immediate. Where, however, the application of the Perverting guideline leads to a custodial sentence of 2 years or less, the sentencer is then required by the Imposition guideline to consider, amongst other things, whether the sentence can be suspended. As we have noted, the Imposition guideline requires the sentencer to weigh listed factors which militate in favour of or against suspension. The weight to be given to individual factors will of course vary from case to case, and on the facts of a particular case one factor may be determinative of the final decision. In the great majority of cases of perverting the course of justice, the most important factor will be one of those which indicate that it would not be appropriate to suspend: namely, that appropriate punishment can only be achieved by immediate custody. That is so because, consistently with the long-established principles we have mentioned, and giving substantial weight to the need to deter others, the inherent seriousness of such offences usually does require immediate custody, and this factor will accordingly outweigh all others. It is important to emphasise that that is the usual position even when – as will not infrequently be the case – the offender has a realistic prospect of rehabilitation, has strong personal mitigation, and immediate custody will result in a significant harmful impact upon others. 24. It follows that application of the relevant guidelines leads to the same position as obtained before the Perverting guideline came into effect: as it was expressed at [26] of Attorney-General's Reference (R v Graham ): "… almost invariably an immediate custodial sentence should and will be imposed in cases of perverting the course of justice." 25. Returning to the present case, the judge was faced with a difficult sentencing decision. There was much to be said in the offender's favour: his crime had not greatly impeded the administration of justice, he had arranged for Kian Feve to go to the police, he had substantial personal mitigation, and others would suffer if he went to prison. But on the jury's verdict, he chose to tell a deliberate lie to the police investigating a crime which he knew must be serious, and which was in fact a crime of murder. We would add that he told a lie which brought his younger son into the false alibi which was put forward. He did not have the mitigation which would have been available to him if he had pleaded guilty. In our judgement, and with all respect to the judge, the offence was so serious that appropriate punishment could only be achieved by immediate imprisonment. A suspended sentence was not within the range properly open to the judge and was unduly lenient. We therefore grant leave to refer. 26. The question then arises of whether this court should exercise its discretion not to increase the sentence. We have given this anxious consideration. We bear in mind the offender's compliance to date with the suspended sentence order, including his diligent performance of the unpaid work requirement, and his deteriorating health. We also bear in mind the likely housing and other long-term consequences for him and his children of our now imposing immediate imprisonment. We conclude that we can properly exercise our discretion in the offender's favour. 27. For those reasons, whilst we grant leave to refer and have found the sentence to be unduly lenient, we do not increase it. It remains, as before, a sentence of 12 months' imprisonment suspended for 12 months with the unpaid work requirement. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: [email protected]

2024_03_14-6094.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/286/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2024/286

ac3db2d1e29e00192fb8dd779e804216270c4b44920c10c1aa8fb68758065d11

[2024] EWCA Crim 160

EWCA_Crim_160

2024-02-07

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202301598/A3 Neutral Citation No.: [2024] EWCA Crim 160 Royal Courts of Justice Strand London WC2A 2LL Wednesday 7 February 2024 Before: LADY JUSTICE ANDREWS MRS JUSTICE CHEEMA-GRUBB THE RECORDER OF REDBRIDGE (HER HONOUR JUDGE ROSA DEAN) (Sitting as a Judge of the CACD) REX V MICHAEL JOHN BURNS __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MS S GARCHA appeared on behalf of the Applicant. _________ J U D G M E N T 1. MRS JUSTICE CHEEMA-GRUBB: On 22 February 2021, at his PTPH, the applicant (who is now 41 years of age) pleaded guilty to conspiracy to supply cocaine and conspiracy to supply cannabis. He was sentenced on 22 April 2021 by HHJ Potter, sitting at Liverpool Crown Court, to 12 years’ imprisonment for the cocaine and 3 years concurrent for cannabis. Confiscation proceedings were pursued and, in April 2022, a confiscation order in the sum of £48,359 was made against him. He renews his application for an extension of time in which to appeal against sentence and for leave to appeal against the custodial sentence. 2. The prosecution arose out of the disruption by Law Enforcement of EncroChat-enabled communications between criminals active in the United Kingdom, between April and June 2020. In summary, evidence of exchanges on the EncroChat phone demonstrated that the applicant was involved in supplying multiple kilograms of cocaine and cannabis and acting as a go-to supplier for several other EncroChat phone users. Messages demonstrated his discussions about the prices, quantities and arrangements for collection and delivery of both cash and drugs. The applicant would travel to collect quantities of cash such as £15,000 or £17,000. He employed sub-dealers below him and told customers that he had large quantities of high quality cocaine available. 3. When arrested and interviewed by the police, he denied any criminality or connection to the EncroChat device attributed to him. 4. The guilty pleas were entered on a basis which was not disputed by the prosecution. The material elements were that the applicant had used an EncroChat handle “Milliondolla”. It was accepted that he had played a significant role for the purpose of the sentencing guideline and the prosecution placed him at the upper end of that category. Although he had sought the supply of 30 kilograms of cannabis, the actual quantities sourced and/or supplied during the period of the conspiracy were limited to 4 to 8 kilograms of cocaine and 10 to 15 kilograms of cannabis. 5. The applicant had been acting under intimidation from those to whom he owed a large debt, and his involvement in the conspiracies arose in order to satisfy the debt. The applicant had limited influence over others involved above him in the chain of supply but he had engaged others to work on his behalf. 6. The applicant had three relevant previous convictions for producing cannabis in 2010 and 2011, for which he was sentenced to imprisonment. 7. No appeal was pursued within the 28-days limit set under statute. An extension of 752 days is required. An extension will only be granted where there is a good reason and ordinarily where the offender will otherwise suffer a significant injustice. The interests of justice in the finality of Crown Court judgments are amongst the matters engaged. The Court will examine the merits of underlying grounds before the decision is made on whether to grant an extension of time. 8. We are grateful for the presentation of these applications by Ms Garcha, who appears, funded privately. The application was lodged nearly 2 years after the sentencing hearing because counsel instructed in 2021 provided negative advice on appeal. Ms Garcha, representing the applicant in 2023, when he was being sentenced for another conspiracy to supply drugs, came to the opposite conclusion and drafted grounds which she has developed orally. 9. They can be encapsulated thus: too high a starting point was taken for sentence on the conspiracy to supply cocaine and no or inadequate allowance was made for personal mitigation. 10. We are persuaded that there is some force in the criticism of the judge’s approach to sentence in what we apprehend to be one of the earliest cases to be sentenced where the prosecution came about following receipt by the police of EncroChat material. 11. In opening the facts at the sentencing hearing, the prosecution identified, for both conspiracies, three out of six specified elements of a leading role for the Sentencing Council Guideline, the organising of buying and selling on a commercial scale, substantial links to others within a chain and the expectation of substantial financial gain. However, in light of all the evidence, the prosecution recognised that the elements of leading role were tempered by the fact that the offender was in debt to those higher up the chain and his offending during the period of the conspiracies was to discharge a large debt, which at one stage appeared to exceed £100,000. The prosecution accepted that the applicant had been compelled to remortgage his home to try to satisfy the debt. 12. As we have already mentioned, the applicant accepted that he fell to be sentenced at the upper end of the significant role category. For Class A drugs this category provides a starting point of 10 years within a category range of 9 to 12 years. We are not persuaded that the personal mitigation available to the applicant should have led the judge to impose a sentence on the basis of a lesser role , where, for example, an offender falls to be sentenced against a background in which he was engaged by pressure, coercion or intimidation and alike. An important feature of this case is that the mitigation of acting under pressure had already been accounted for in a classification of the offender’s role as significant rather than leading . 13. As to harm, there is no dispute that the quantities of drugs involved were roundly within category 1 for cocaine, although they exceeded the category 1 quantities for the cannabis conspiracy. For cannabis, at the indicative quantity of 200 grams, it is 4 years starting point within the range of 2½ to 5 years. 14. The judge stated in his sentencing remarks that the quantity in count 1 (cocaine) exceeded the indicative amount for category 1. While we agree that the evidence disclosed messages about much larger quantities, the applicant’s undisputed basis of plea was that the amount actually obtained and supplied was between 4 and 8 kilograms. The lower end of that range does not of course exceed the indicative quantity. 15. This feature had to be reflected in the assessment of gravity of the conspiracy. Indeed, the judge does appear at one point to have reversed the quantities of drugs involved when he said: i. “It is clear you played a significant role at a high end of significant role in the trafficking of large amounts of Class A drugs and a much smaller amount of Class B drugs on behalf of sophisticated organised crime groups….” 16. In fact, it was a much smaller amount of cocaine, not cannabis. 17. The judge rightly identified aggravating features: the actual quantities, particularly of cannabis supplied in pursuance of the conspiracy, the use of the sophisticated and expensive EncroChat devices, the degree of organisation and distribution the applicant was involved in, his previous convictions, as well as the expectation of substantial financial gain. By way of mitigation, the judge recognised that the applicant had been involved through desperation, having run up a large debt at a time when he was not able to obtain work in the offshore electronics industry due to Covid-19. He also made reference to the three character references provided to him, which described the applicant as a family man who had fallen under the influence of bad elements during a period of impecunity. However, he said, aptly, that the consequence of the financial slowdown in the economy was not an excuse for the applicant’s offending which involved being, in his words: “prepared to traffic in misery and death as a means to support themselves and their families through financial straitened circumstances.” 18. The sentence of 12 years was the result of a provisional sentence prior to discount for guilty plea of 16 years. As will be apparent, this is at the top end of the category range for sentence in category 1 leading role. 19. In our judgment, the overall picture, including the quantities of the respective drugs involved and the aggravating features, justified the sentence for the conspiracy in count 1 at the top of the significant role range, namely 12 years. The sentence of 3 years imposed for the cannabis conspiracy cannot be the subject of any complaint. However, we do not see any proper justification for moving outside the category range for count 1. The judge did not provide any such explanation in his sentencing remarks for taking a provisional sentence before discount of 16 years’ imprisonment, aside from a reference to lengthy sentences being necessary as a deterrent. We recognise, of course, that deterrence is part of the purpose of sentencing in such cases, and this explains why the sentences indicated by the guideline for these offences are as substantial as they are. The judge also had to have regard to the question of imposing an overall sentence which is just and proportionate. 20. In all the circumstances, we are persuaded that it is appropriate to grant the very great extension of time required. In order to correct a manifestly excessive sentence, we grant leave to appeal and dispose of the appeal in this way. Count 1 is taken as the lead offence incorporating the criminality in count 2. A sentence at the upper edge of the category range of 12 years has to be reduced at step 5 of the guideline by 25 per cent for the guilty pleas. 21. Accordingly, the sentence on count 1 is quashed and replaced by a sentence of 9 years’ imprisonment. The sentence on count 2 and the other orders shall remain as before. To that extent, this appeal succeeds. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: [email protected]

2024_02_07-6038.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/160/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2024/160

ad3468fe9b61f02e497692043cf508810986aa98c0a833f5fdf5840d3d3ccefd

[2019] EWCA Crim 1108

EWCA_Crim_1108

2019-06-19

crown_court

Neutral Citation Number: [2019] EWCA Crim 1108 No: 201805196/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 19 June 2019 B e f o r e : LORD JUSTICE HOLROYDE MRS JUSTICE SIMLER DBE MR JUSTICE JACOBS R E G I N A v MICHAEL JOHN CRIMES 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 Cou

Neutral Citation Number: [2019] EWCA Crim 1108 No: 201805196/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 19 June 2019 B e f o r e : LORD JUSTICE HOLROYDE MRS JUSTICE SIMLER DBE MR JUSTICE JACOBS R E G I N A v MICHAEL JOHN CRIMES 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 A Jamieson appeared on behalf of the Appellant J U D G M E N T (Approved) 1. LORD JUSTICE HOLROYDE: This appellant entered late guilty pleas to a total of five offences charged on three indictments. On 19 November 2018, in the Crown Court at Manchester (Crown Square), he was sentenced to a total of 6 years 6 months' imprisonment. He now appeals against his sentence by leave of the single judge. 2. The relevant facts can be briefly summarised as follows. For convenience we shall refer to persons mostly by their surnames only. We mean no disrespect to anyone by doing so. 3. On 1 January 2018 a Nissan Qashqai was stolen in Liverpool. On 4 January 2018 a Ford Focus was stolen from the same area of Liverpool. Both cars were subsequently fitted with false registration plates. The Qashqai was stopped by police in Manchester on 10 January 2018. The driver was a man called Morris, a friend of one D’maine Robinson, of whom we shall say more shortly. The appellant was a passenger in the car. 4. On 3 February 2018 the Ford Focus was driven from Liverpool to Manchester on a reconnaissance mission. On 4 February it was used to convey Robinson and an unidentified gunman from Liverpool to a restaurant in Manchester, where Robinson was to meet one Tyrell Thomasson. Unbeknown to Thomasson, this was part of a well-organised plan by an organised crime group to shoot Thomasson in the legs (in the manner known as "kneecapping"), in revenge for an earlier gang-related shooting thought to have been carried out by Thomasson's brother. This plan was successfully put into effect. Thomasson was lured into a trap by Robinson and was shot in the leg by the unidentified gunman. A second shot was also fired by the gunman, fortunately without hitting anyone. 5. The gunman and whoever was acting as his driver then drove away from the restaurant in the Ford Focus and went to the home of a woman called Cooper. She ordered a taxi which took the two men back to Liverpool. In the early hours of the following morning the stolen Ford Focus was destroyed by fire near to Cooper's address. It was this appellant, using substantial quantities of an accelerant, who set it on fire. 6. Robinson subsequently pleaded guilty to conspiracy to cause grievous bodily harm with intent and conspiracy to have a firearm with intent to commit an indictable offence. Following a Reference to this court by Her Majesty's Attorney General, his total sentence became one of 14 years 3 months' imprisonment. Further details of his case can be found in the transcript of the court's decision on the Attorney-General's Reference under neutral citations number [2019] EWCA Crim 257 . 7. Cooper pleaded guilty to an offence of assisting an offender and was sentenced to 18 months' imprisonment suspended for 2 years. The gunman and his driver remain unidentified. 8. On 21 May 2018 police officers went to the appellant's home to arrest him in relation to the matters we have summarised. They found him arriving at his house in company with a man called Maddix. Both men were in possession of bags which proved to contain a quantity of snap bags of amphetamine. Further amphetamine was found inside the house, of which Maddix claimed ownership. Notebooks containing names and numbers, and scales, were also found. 9. In the rear garden of the appellant's home the police officers found a Kawasaki motorcycle which had been taken during the course of a burglary in Manchester in early March 2018. That motorcycle had been partially stripped down and parts of it had been offered for sale on eBay by the appellant. The police officers also found, parked on the driveway of the house, a Ford Transit van, which had been stolen on the night of the 20 March 2018 and subsequently fitted with false number plates. Inside that van there was another motorcycle, which had been stolen in a burglary on the night of 2 April. 10. When interviewed under caution the appellant made no comment. He put forward a prepared statement, saying that he was unaware that the van, its contents and the Kawasaki motorcycle were stolen. He said that he had allowed an acquaintance to park the van on his drive as a favour and that he had bought the Kawasaki in good faith. He claimed that the amphetamine which the police had seized was all for his personal use and that the bags and scales which had been found were simply to monitor his own drug consumption. In the light of his later pleas, none of that was true. 11. On indictment T20187213A the appellant and Maddix were charged with possession of amphetamine with intent to supply. On indictment T20187213B the appellant was charged with three offence of handling stolen goods, these charges relating to the Kawasaki motorcycle, the Transit van and the other motorcycle respectively. For convenience, we shall refer to these as the "A" and "B" indictments. 12. On indictment T20187230, to which we shall refer simply as "7230" the appellant was charged in counts 1 and 2 with the two conspiracies of which Robinson was convicted. In counts 3 and 4 he was charged with two offences of participating in the criminal activities of an organised crime group, contrary to section 45(1)A of the Serious Crime Act 2015. Count 3 alleged that he knowingly took part in the activities of an organised crime group, "by assisting in the stealing of motor vehicles on behalf of a Salford organised crime group". Count 4 alleged that he had knowingly taken part in the activities of an organised crime group "by destroying a motor vehicle by fire on behalf of a Salford organised crime group". 13. At a plea and trial preparation hearing the appellant entered not guilty pleas to all of the charges. Subsequently, and in advance of the date set for the first of his trials, he pleaded guilty to the A indictment and to the counts in the B indictment which related to the Kawasaki motorcycle and the Ford Transit. Those pleas were acceptable to the prosecution. We should note in passing that Maddix also later pleaded guilty to the A indictment and was sentenced to 15 months' imprisonment suspended for 2 years. 14. The trial of indictment 7230 began on 5 November 2018. The jury was sworn, but the judge then allowed time for discussion between the parties and indicated that guilty pleas at that stage would still attract a reduction of 10%. On 6 November the appellant pleaded guilty to counts 3 and 4. Those pleas were accepted. 15. The appellant was sentenced on 19 November 2018 by His Honour Judge Martin Walsh. No pre-sentence report was thought to be necessary, and we are satisfied that none is necessary at this stage. Counsel made submissions as to the categorisation of the offences charged in the A and B indictments in accordance with the relevant sentencing guidelines. In the absence of any sentencing guideline relating to the offence of participation in the criminal activities of an organised crime group, an offence which carries a maximum penalty of 5 years' imprisonment, prosecution counsel suggested that the judge might wish to consider the guideline for offences of theft and made submissions in that regard. 16. The appellant is now 40 years of age. He had a number of previous convictions dating back many years, none of which significantly aggravated this offending. More recently however, it is relevant to note that on 1 May 2018 he was conditionally discharged by a magistrates' court for offences of producing cannabis and handling stolen goods, which had been committed in October 2017. On 8 May 2018, in the Crown Court at Manchester, he was sentenced to a community order in respect of offences of handling stolen goods, committed in October 2016 and January 2017, and also for possessing cannabis on the latter date. All of those offences preceded the present offending by a matter of months, and the appellant was on bail for them at the time of the present offences. 17. In his sentencing remarks the learned judge summarised the circumstances of the offences. In relation to those charged on indictment 7230, he said this: "Count 3 reflects your role in assisting the theft of the Ford Focus from Liverpool on the 4th January 2018; this was the vehicle that was eventually used by the gunman on the 4th February. You also participated in the theft of a Nissan Qashqai car which was stolen from Liverpool on 1 January 2018, and it is implicit in your plea that you knew that these vehicles were to be used by an organised crime group for a criminal purpose; although at that stage the exact nature of the criminal activity may have been unknown to you. Count 4 reflects the part played by you in setting fire to and destroying the Ford Focus car after the shooting had occurred. This was done in an attempt to evade detection of those responsible for the shooting and was undertaken at a time when you must have been aware not only of the identity of the attackers but also the nature of the criminal activity in which they had been involved." The judge later added, in relation to count 4, that the destruction of the Ford Focus had been carried out by the appellant to impede the investigation by the police and in the knowledge that a shooting had taken place. 18. The judge noted that although the appellant had previously been remanded in custody, he was facing his first custodial sentence. He indicated that credit would be given for the guilty pleas. He emphasised that his overall sentence reflected the principle of totality and would have been the same however the individual sentences were structured. 19. In relation to the offences on indictment 7230 the judge imposed a sentence of 27 months' imprisonment on count 3 and a consecutive sentence of 42 months' imprisonment on count 4. For each of the other three offences he imposed sentences of 9 months' imprisonment, those sentences running concurrently with one another but consecutively to the longer sentences. Thus the total sentence was, as we have said, 6 years and 6 months. 20. In his very helpful written and oral submissions on behalf of the appellant, Mr Jamieson takes no issue with the sentences imposed on the A and B indictments. As to the offences on indictment 7230, he submits that the suggested comparison with the theft guideline is of limited assistance, not least because the maximum sentence for theft is 7 years' imprisonment. In so far as that guideline might be considered, he submits that even on the least favourable application of it, the starting point for count 3, before credit for the guilty plea, would not have exceeded 2 years' imprisonment. He therefore argues that the sentence on count 3, which implies a sentence before credit for plea of 30 months, was too long. 21. As to count 4, recognising the differences between the cases, he suggests it is nonetheless helpful to look at cases of attempting to pervert the course of justice. By reference to two such cases, R v Dowd & Huskins [2001] Cr App R(S) 349 and R v Beaney [2005] EWCA Crim 1127 , he submits that the judge's starting point, presumably in the region of 48 months' imprisonment, was far too high. He further submits that the sentences on counts 3 and 4, whatever their length, should have been ordered to run concurrently, the one with the other, because they represented a course of conduct and the various actions might indeed all have been encompassed in a single count. Mr Jamieson acknowledges that had concurrent sentences been passed, the length of them would have to reflect the overall offending; but he relies on the point to highlight the fact that the effect of the consecutive sentences passed was to impose a total sentence in excess of the statutory maximum for a single offence. 22. Finally, Mr Jamieson submits that insufficient credit was given for the guilty pleas on this indictment, relying on the fact that the appellant had indicated to the prosecution, in advance of the trial date, that he would be prepared to admit assisting the conspirators by burning the Ford Focus. 23. At this stage of the proceedings, we must focus on the overall sentence imposed for the offending as a whole rather than on the precise structure by which that total was reached. The appellant committed three different types of offence on a total of five separate occasions. In principle the judge would have been entitled to impose consecutive sentences on each count provided, of course, that the total sentence was not manifestly excessive. The total sentence had to include appropriate punishment for the offences on the A and B indictments. We well understand why Mr Jamieson has not made any submissions about the sentences imposed for those offences but, as he acknowledges, they are not to be ignored in considering the totality of the sentence. 24. The guilty pleas for those three offences were entered on a basis which limited the appellant's criminality. But they were three distinct offences, committed on separate occasions, by a man who, in the recent past, had committed and was on bail for similar crimes. Having regard to the sentencing guidelines applicable to those offences, we have no doubt that if dealt with in isolation from the offences charged on indictment 7230, they would have merited a total sentence significantly longer than the 9 months' imprisonment which was in fact imposed. 25. There is, as we have said, no definitive guideline applicable to offences contrary to section 45 of the Serious Crime Act 2015. Reference by way of analogy to the theft guideline in respect of the underlying offence charged in count 3, or to fact-specific decisions in respect of offences of perverting the course of justice in relation to count 4, provides, in our view, only very limited assistance. We therefore consider, within the context of the statutory maximum of 5 years' imprisonment, the appellant's culpability and the harm caused, intended or likely to be caused by his commission of these offences. 26. Participating in the criminal activities of an organised crime group is by its nature a serious offence. With regard to the five purposes of sentencing identified in section 142 of the Criminal Justice Act 2003, sentencers dealing with such offences will, in our view, generally wish to focus on punishment, protection of the public and the reduction of crime by deterrence. The offence is by its nature an adjunct to other criminal activity; but that does not mean that the offender necessarily plays only a minor role in the commission of the offence. 27. In relation to the offence charged in count 3 of 7230, the appellant played a part in the theft of two cars within the space of a few days, from a city which is neither his home city nor the base of the organised criminal group for which he was acting. He knew that the cars were intended for use by professional criminals in the commission of crime. The seriousness of the offence therefore went beyond the seriousness of stealing cars for their financial value. The judge rightly accepted that, at that stage, the appellant may not have known the precise criminal purpose for which the cars were intended. The judge appears to have concluded that the appropriate sentence for this offence, before credit for plea, was 30 months' imprisonment. We observe that that is high in the range which, in our view, was open to the judge. 28. The offence charged in count 4 was significantly more serious. It was a determined attempt to impede the inevitable police investigation into the very serious crime which had been committed and of which the appellant was aware. Again, its seriousness went beyond that which is inherent in many other attempts to pervert the course of justice, because it involved such an attempt being made on behalf of an organised crime group. For that reason the offence, in our view, is to be contrasted with offences of the kind illustrated by the cases to which we were referred, where a motorist, involved in a fatal collision, has attempted to conceal his involvement by personally, or with the assistance of family and friends, disposing of or concealing incriminating evidence. The judge was correct to view this offence as requiring a longer sentence than count 3. In our view, he was also correct to order the sentences for counts 3 and 4 to run consecutively. True it is that the same car was involved in the criminal actions on both occasions. But the occasions were a month apart, in different cities and they were quite distinct aspects of the offender's criminality. We take the view that the sentence which the judge imposed on count 4, which implies a sentence before credit for plea of around 4 years' imprisonment, was somewhat too long, particularly when considered as part of the total term of imprisonment for these two offences. 29. It is however then necessary to reiterate that in the interests of overall totality, the judge imposed very low sentences for the offences charged in the A and B indictments. When we take into account that those three offences could properly have contributed significantly more than they did to the total sentence, we conclude that an overall sentence of 6 years 6 months' imprisonment, though certainly a stiff one, was not manifestly excessive. 30. We pay tribute to the cogency with which Mr Jamieson has advanced his submissions. Despite them, this appeal fails and is dismissed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]

2019_06_19-4630.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/1108/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/1108

26eff2c04167b369cedcea47001bb5154e23e3176b5a921242281e86af819f13

[2006] EWCA Crim 3323

EWCA_Crim_3323

2006-12-21

crown_court

No: 200605711/C5 Neutral Citation Number: [2006] EWCA Crim 3323 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Thursday, 21st December 2006 B E F O R E: LORD JUSTICE MOSES MR JUSTICE GOLDRING HIS HONOUR JUDGE MARTIN STEPHENS QC (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - R E G I N A -v- CPS LEICESTER - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications

No: 200605711/C5 Neutral Citation Number: [2006] EWCA Crim 3323 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Thursday, 21st December 2006 B E F O R E: LORD JUSTICE MOSES MR JUSTICE GOLDRING HIS HONOUR JUDGE MARTIN STEPHENS QC (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - R E G I N A -v- CPS LEICESTER - - - - - - - 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 HOUSE appeared on behalf of the APPELLANT MR C KESSLING appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE MOSES: This is an appeal pursuant to section 58 of the Criminal Justice Act 2003 . A defendant, whom we shall call CF, was appearing at Leicester Crown Court facing a charge of causing racially aggravated alarm or distress within section 4A of the Public Order Act 1986 . Mr House, for the defendant, took the point that the offence could not have been committed and no jury property directed could convict her of it because at the time of the alleged offence she was detained in a police cell. He had taken that point properly in his defence statement. 2. Unfortunately, there appears to have been no arrangement made, as there should have been, for that legal issue to be litigated, before the case was listed for trial before a jury. It therefore appeared as a jury trial in the Crown Court at Leicester on 2nd November 2006. It needs no emphasis from us, and particularly not from Goldring J, to say that there ought to have taken place a legal argument to determine this issue, before a jury was available and before witnesses were warned. This was particularly important since the witnesses were police officers. They had not in fact turned up by the time the legal issue was aired in court, but, of course, the matter ought to have been considered and concluded well in advance of any jury being summoned to try it. 3. The issue is one which understandably concerned the prosecution. It is whether an offence contrary to section 4A of the Public Order Act 1986 may be committed in a police cell. At the time of the alleged offence CF was detained there and was alleged to have made a racially obscene remark to one of the police officers who came into the cell. 4. It is necessary to consider the relevant statutory provisions. By section 28 of the Crime and Disorder Act 1998 an offence is racially aggravated for the purposes of section 29 if at the time of committing the offence, or immediately before, or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim's racial group. Section 31 makes specific reference to section 4A of the Public Order Act 1986 . 5. Section 4A of the Public Order Act 1986 provides at subsection (1) as follows: "A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he -- (a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or (b) displays any writing, sign or other visible representation which is threatening, abusive or insulting, thereby causing that or another person harassment, alarm or distress." 6. It continues by identifying the place where such an offence may be committed as follows: "(2) An offence under this section may be committed in a public place or a private place, except that no offence is committed where the words ... are used ... by a person inside a dwelling and the person who is harassed, alarmed or distressed is also inside that or another dwelling." 7. Dwelling is defined by section 8 of the 1986 Act as follows: "'dwelling' means any structure or part of a structure occupied as a person's home or as other living accommodation (whether the occupation is separate or shared with others) but does not include any part not so occupied, and for this purpose 'structure' includes a tent, caravan, vehicle, vessel or other temporary or movable structure." 8. Mr House, with admirable persistence, submits that the police cell is other living accommodation . There are features, so he contends, of a person's accommodation in such a cell which are similar or analogous to that which might be expected in a place where a person lives or which he occupies as a home, for example, eating, sleeping and completing ablutions. It matters not that the person there is under compulsion or only there temporarily. 9. The areas where an offence under section 4A may be committed are not limited to public places. An offence such under section 4A may also be committed in private. The area where a person may indulge in the conduct prohibited by section 4A with impunity are, accordingly, narrowly confined. Such areas are confined to a structure or part of a structure which is occupied as a person's home or other living accommodation. There is no exception in relation to the areas where such an offence may be committed in relation to mere accommodation. The concept of other living accommodation takes its meaning from association with the concept of a person's home. 10. A police cell is not a home. It is not "other accommodation where a person lives", even though a person detained in a police cell may from time to time do the same things which he or she may do in this own home, or in the place where he or she lives. The judge was accordingly wrong to rule that the police cell came within the exception to subsection (2) of section 4A . A police cell is a place where a person is detained in custody, not a place which a person occupies as living accommodation. 11. This case probably went wrong because the judge, in giving his conclusion that the defence were right, did not set out his reasons. Had he done so, he might have appreciated there were no reasonable grounds for his conclusion. A number of problems were canvassed in argument as to whether section 4A , by reason of the terms of section 4A(2), covered different types of places where people might be said to be accommodated. But no elucidation or illumination is achieved by worrying about whether, for example, a hospital ward or a prison cell may be occupied as "other living accommodation". This case does not concern such structures or parts of structures. This case concerns a police cell. It is, therefore, important to concentrate on the words used in subsection (2) and their impact on ordinary understanding. 12. The judge's task was to rule as a matter of law. In other words, whether as a matter of law the structure could be said to be occupied as a person's home or as other living accommodation. That required him to rule whether the structure in question, namely the police cell, was capable of being regarded as falling into that category. If there was scope for any reasonable argument then the issue was a question of fact for the jury. If it was not susceptible to any reasonable argument, then the judge was required to rule as a matter of law. In the instant case the judge ruled as a matter of law that a jury could not conclude other than that the police cell fell within section 8 . Not only did he err in so ruling, in our view he should have ruled that, as a matter of law, the police cell was not capable of being regarded as occupied as a person's home or as other living accommodation. There was no room for any reasonable argument to the contrary, and if the case is contested the jury should be directed accordingly. 13. We respect the achievement of counsel for the defence, Mr House, in convincing the judge that a police cell was a home, but sometimes early forensic success meets its nemesis in this court. When a bright idea strikes counsel as a moment of epiphany it is useful for the advocate to recall the advice of that illustrious member of the Modern Jazz Quartet. Miles Davis advised, "Think of a note. Don't play it." The appeal is allowed. 14. LORD JUSTICE MOSES: What happens about the orders that I should make -- that we should make? 15. MR KESSLING: It is simply, in my submission, to remit the case back to the Crown Court with a direction that the judge rules in accordance with your Lordship's ruling. 16. LORD JUSTICE MOSES: 7-247. Order -- is it a fresh trial or proceedings being resumed? I think it is probably a fresh trial? What do you think? Had a jury been sworn? 17. MR KESSLING: No jury had been sworn. 18. LORD JUSTICE MOSES: And she hadn't been arraigned, so it's a fresh trial. So we will make an order that a fresh trial take place at Leicester Crown Court, or wherever is convenient, pursuant to section 61(4)(b). 19. What is the position about costs? Are you asking for costs from the accused, or she is legally aided? 20. MR KESSLING: She is legally aided. We don't seek costs. 21. MR JUSTICE GOLDRING: She is on bail. 22. MR HOUSE: We have already been given another fixed trial. Obviously someone in the listing office at Leicester reached the same conclusion as your Lordships. 23. LORD JUSTICE MOSES: We don't need reporting restrictions. No juror is going to read the law reports. Anyway, it doesn't affect her guilt or innocence. 24. A LAW REPORTER: My Lord, I believe there are reporting restrictions. 25. LORD JUSTICE MOSES: Then they are lifted, because it doesn't affect guilt or innocence. I certainly did not say what she is supposed to have said, which no doubt she denies.

2006_12_21-998.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/3323/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/3323

14d4b0f8d62d3eff41e08291bf8bd36ced46de0bff259b78fe91302b9f16eecf

[2010] EWCA Crim 257

EWCA_Crim_257

2010-01-26

crown_court

Case No: 20095261/A1 Neutral Citation Number: [2010] EWCA Crim 257 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 26 January 2010 B e f o r e : LORD JUSTICE HOOPER MR JUSTICE WYN WILLIAMS THE RECORDER OF CROYDON (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v DAVID MILLER - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A M

Case No: 20095261/A1 Neutral Citation Number: [2010] EWCA Crim 257 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 26 January 2010 B e f o r e : LORD JUSTICE HOOPER MR JUSTICE WYN WILLIAMS THE RECORDER OF CROYDON (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v DAVID MILLER - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr A Shanahan (Solicitor Advocate) appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. THE RECORDER OF CROYDON: On 6th October 2009 at the Cardiff Crown Court, before Mr Recorder Roddick QC, the appellant was sentenced to a total of two years' imprisonment for three offences of passing or tendering a counterfeit currency note and one offence of having custody or control of counterfeit currency notes, the sentences to run concurrently. He had earlier pleaded guilty to all the offences. He now appeals against sentence by leave of the single judge. 2. The appellant is 27 years of age. On 3rd April 2009 a barmaid, who knew the appellant, was working in a nightclub when he came up to the bar with a £20 note and paid for a drink with it. Shortly afterwards he ordered another drink and rather than pay with the change she had given him, he tendered another £20 note. She thought that that was a bit strange and then recalled that a few days previously the club had been passed a number of counterfeit £20 notes, so she decided to check the two notes that the appellant had given her, and found that they had the same serial number. She informed the manager who went to another bar in the club where the appellant had tendered yet a third £20 note, again with the same serial number. The manager challenged him. The appellant asked how he knew that they were forged and the manager pointed out that they had the same serial number. The appellant responded by saying that he had been given the notes by a person downstairs. When they both went downstairs to look for the person the appellant could not find him. 3. The police were summoned and the appellant was arrested. When his home was searched three more forged £20 notes were recovered. When interviewed the appellant said that he had obtained the notes from someone with whom he had been doing a deal. 4. The appellant has a large number of convictions, including offences of dishonesty. A pre-sentence report suggested a suspended sentence order with requirements of supervision and unpaid work. There were two character references and a medical report on the appellant's mother who had a severe chronic back problem which meant that she was virtually bed-bound, with the appellant as her sole carer. 5. In his sentencing remarks the learned Recorder referred to the poor record of the appellant, although he observed that he had no previous offences for this particular type of offence. He had had numerous community disposals in the past and also served custodial sentences. Account was taken of the content of the pre-sentence report and his personal mitigation, his early guilty plea, his mother's welfare and the fact that he had proved a caring son for his mother over a long time. However custody was, in the learned Recorder's view, inevitable. 6. In his grounds of appeal and briefly before us today, Mr Shanahan submits that the sentence was manifestly excessive being out of kilter with previous sentencing decisions in this class of case. In support of his grounds he has referred us to the following cases: R v Howard (1985) 1 Cr.App.R (S) 320, R v Page [1991] 13 Cr.App.R (S) 426 and R v Wake [1991] 13 Cr.App.R (S) 422, although that said there are no definitive sentencing guidelines issued by the Sentencing Guidelines Council for this type of offence. 7. In the first of the cases, R v Howard , a sentence of two years' imprisonment was passed after a counterfeit £20 note was attempted to be passed and the appellant was subsequently found to have bought counterfeit currency to the value of £3,000. Lord Lane, Lord Chief Justice, in the course of the judgment of the court said: "Perhaps the most important consideration in this type of case is the quantity of the counterfeit notes which are found in the appellant's possession, because that will demonstrate, with some degree of accuracy at least, the proximity to, or the distance from, the source of the notes which the appellant's position occupied. Quite plainly, from the quantity of notes in the possession of this man, he was somewhat near the source of the notes." In R v Page a sentence of 12 months' imprisonment was upheld after an attempt to pass five counterfeit £5 notes, as well as being in possession of 195 such notes with a face value of £795. It is of note that in both these cases the appellants were of previous good character. Finally, in R v Wake 12 months' imprisonment was reduced to three months on a guilty plea, again by a man of good character, where the appellant passed two counterfeit £10 notes. There was here no reference to the appellant having any additional store of counterfeit currency. As the Lord Chief Justice continued in R v Howard : "It is a trite observation made in these cases, but nevertheless correct, that the issue of counterfeit notes undermines the whole economy of the country and is likely to result in great loss being sustained by innocent people who find themselves in possession of these notes only to discover that they are worthless. It follows therefore that this type of offence is one which inevitably, in nearly every case, will require a custodial sentence." We are of the view that an immediate custodial sentence in this case was inevitable. However, to have sentenced the appellant to two years' imprisonment on a guilty plea tendered at the plea and case management hearing, the judge must have taken a sentence in the region of three years' imprisonment as his starting point, which in our view was too high in all the circumstances of the case. Although the appellant had a long history of offending it was far from being the worse case of its type, with the tendering of three £20 notes within a short period of time and with but three additional notes being found at his home. The quantity therefore was low and from which it could hardly be contended, or at least it was unclear that this was an appellant who was close to the source of the notes. Given the low number of notes in this case, the early plea of guilty and the personal mitigation of the appellant which has been further emphasised to us this morning, and despite his long criminal record, we are of the view that the sentence of two years' imprisonment cannot be upheld in this case and is correctly categorised as one which is manifestly excessive. What we propose to do is to quash the sentence of two years' imprisonment and in its place substitute one of 15 months' imprisonment, that is to say on each count concurrent. To that extent the appeal is allowed.

2010_01_26-2232.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/257/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/257

ef374e9dd092fed227b8e85f13104359e3da20ceaf1c217858db5c3734fb09dc

[2014] EWCA Crim 1444

EWCA_Crim_1444

2014-06-11

crown_court

Neutral Citation Number: [2014] EWCA Crim 1444 Case No. 2013/00257/B2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Wednesday 11 th June 2014 B e f o r e: LORD JUSTICE McCOMBE MR JUSTICE SUPPERSTONE and 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 - ARYA BINA ____________________ Computer Aided Transcription by Wordwave I

Neutral Citation Number: [2014] EWCA Crim 1444 Case No. 2013/00257/B2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Wednesday 11 th June 2014 B e f o r e: LORD JUSTICE McCOMBE MR JUSTICE SUPPERSTONE and 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 - ARYA BINA ____________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) __________________ Mr S Kivdeh appeared on behalf of the Applicant Miss S Whitehouse QC and Mr A Chalk appeared on behalf of the Crown ____________________ J U D G M E N T LORD JUSTICE McCOMBE: 1. On 14 December 2012, following a trial in the Crown Court at Kingston upon Thames before Her Honour Judge Coello and a jury, the applicant was convicted of eight offences: one offence under section 1(1) of the Criminal Law Act 1977 of conspiracy to facilitate the commission of a breach of an immigration law of a member state, contrary to section 25(1) of the Immigration Act 1971 (count 1); one offence under the 1977 Act of conspiracy to facilitate the arrival of an asylum seeker into the United Kingdom, contrary to section 25(A)(1) of the 1971 Act (count 2); two specific offences of facilitating the arrival of named asylum seekers into the United Kingdom, contrary to section 25(A)(1) of the 1971 Act (counts 3 and 4); and three offences of converting criminal property, contrary to section 327(1)(c) of the Proceeds of Crime Act 2002 (counts 6, 7, 8 and 9). The applicant was acquitted on the direction of the learned judge on one charge of encouraging or assisting the commission of fraud, contrary to section 45 of the Serious Crime Act 2007 (count 5). It is material to mention that acquittal because of a point taken in relation to the admissibility of evidence primarily relied upon in relation to the other offences. 2. On 18 December 2012 the applicant was sentenced to a total of nine years' imprisonment, made up of concurrent sentences of nine years for the two conspiracy offences, and four years each for the substantive section 25(A) offences and for each of the criminal property offences. 3. There was a co-accused, Monir Asemani (the applicant's wife), who was convicted with her husband on counts 8 and 9. She was sentenced to concurrent terms of 30 months' imprisonment on each count. 4. The applicant now renews his applications for leave to appeal against conviction and sentence following refusal by the single judge. 5. The underlying facts and the main features of the Crown's case against the applicant were as follows. The applicant was born in Iran. Through his first marriage he was related to the first foreign minister of the new revolutionary government of Iran, which set up the new regime in that country in 1979. Subsequently it appears that his family fell out with the regime and suffered mistreatment at the hands of the authorities. He and his wife were sent to jail where, it seems to be accepted, he suffered torture. His wife died shortly after her release from prison. 6. In 1990 he came to the United Kingdom and was afforded refugee status. In this country he and others interested in Iranian affairs founded the United Iran Party ("UIP") and he became its leader. The party campaigned against the regime and its activities. It helped individuals to escape from Iran and to come to the United Kingdom to seek asylum. The co-accused was the applicant's second wife. 7. The prosecution case was that the applicant was the head of a people smuggling enterprise in this country which he had set up with other Iranians working in Europe. The UIP, it was suggested, was a front for that business, the main purpose of which was to offer Iranian Nationals who wanted to come to the country a service whereby the applicant and others acting under his supervision would facilitate their journey from Iran through European countries, including especially Spain, to the United Kingdom using whatever means were at his disposal and avoiding proper immigration controls in the course of the activity. The service that was offered included the provision of accommodation en route, false documents, assistance in travelling to and from airports and through them, and also written accounts setting what had happened to them in Iran so that they could be presented in due course to a United Kingdom immigration officer. The majority of the accounts, said the Crown, were fabricated and for the service it was alleged that the applicant charged those whom he "assisted" significant sums of money. Over a six year period (the duration of the offences) it was alleged that he had made a substantial gain – in excess of £500,000 – passed into various bank accounts including that of Mohammed Hassan Befroei. The last account, it was alleged, was set up by the applicant with the use of a false Portuguese identity card. 8. In contrast, the defence case was that the terrible experiences that the applicant had suffered in Iran, together with friends and family, had provided motivation for him and his organisation to help compatriots in similar peril in Iran, and that this was all that motivated him – not greed or financial gain. The evidence, it was submitted, was open to an entirely different interpretation to that given by the Crown. There was no evidence of an affluent lifestyle and no direct evidence of how any individual had, in fact, entered Spain in transit to this country. 9. With regard to count 1, the applicant said that he had nothing to do with any particular individual's journey to Spain, and no knowledge of how they entered Spain or their circumstances while they were there. His only involvement was to help them to leave Iran for Turkey. He knew nothing for the arrangements made for them in the western parts of Europe. 10. In relation to count 2, he denied acting for financial gain. His motives, he said, in assisting the individuals were entirely humanitarian. He and his organisation only ever acted as guarantor for monies paid by relatives to smugglers. He did not seek or receive payment. The monies in his accounts were membership fees or voluntary donations to the UIP. 11. In relation to counts 3 and 4, he denied acting for financial gain. His motives towards the two individuals named in the indictment were entirely humanitarian. 12. With regard to counts 6-9, he denied any criminal activity and he denied that the proceeds, which were alleged to be criminal property, were of that character at all. 13. In interview with the police on arrest, the applicant declined to answer questions but did provide a prepared statement to the officers. The judge directed the jury that no adverse inference should be drawn against the applicant by reason of his silence in the interview process. 14. The grounds of appeal now sought to be advanced by the applicant on this application are to a substantial extent issues of law following the judge's ruling rejecting a submission of no case to answer on count 1 of the indictment. 15. A ground of appeal was originally advanced as to a challenge to a ruling made by the judge in the course of the trial rejecting the defence submission that the applicant was not fit to stand trial. Mr Kivdeh realistically abandoned that submission shortly before the hearing today. 16. We turn to the arguments, principally of law, raised on the proposed conviction appeal. First, it is submitted that the learned judge erred in failing to accede to the defence submission of no case to answer. Behind that broad submission there are three points. First, it was submitted that the judge was wrong to conclude that the offence in section 25(1) of the 1971 Act can be committed where the individual, whose breach of immigration law is hypothetically facilitated, is an asylum seeker or proposed asylum seeker. It is submitted that the Crown evidence indicated that all the individuals concerned fell into that category. Secondly, it is argued that the judge was wrong in failing to find that the offence in count 1 had been wrongly charged as a conspiracy to commit the section 25(1) offence, rather than as an offence under section 25(A) of the Act (helping an asylum seeker to enter this country). Thirdly, it is said (and this was the second point more firmly advanced by Mr Kivdeh this morning) that the offence in count 1 should have been charged under section 1(A) of the Criminal Law Act 1977, as amended, rather than under section 1(1). 17. The first point can be dealt with in our judgment shortly. There is nothing whatsoever in section 25 of the 1971 Act to indicate that the individual non-national of the European Union, whose breach of the immigration law has been facilitated, needs to be a person who is not an applicant for asylum. In our view it is plain that there is no such limitation. Unfortunately, even persons who in the end are found to have genuine asylum claims have sometimes committed breaches of immigration law on securing entry to a European Union state. The statute, in our judgment, is aimed at those who facilitate such illegal entry. On the face of the statute there is no such limitation as that for which Mr Kivdeh contends. 18. In the course of his robust submissions to us this morning, Mr Kivdeh helpfully referred us to R v Kapoor [2012] EWCA Crim 435 , in which the judgment of the court was given by Hooper LJ. At paragraph 38 Hooper LJ said this: "We … note that, if the Crown is right, then, on the facts of this case, section 25A can simply be bypassed. Section 25A limits the offence of facilitation to someone who knowingly and for gain facilitates the arrival in, or the entry into, the United Kingdom of an asylum seeker and excludes anything done by a person acting on behalf of an organisation which aims to assist asylum seekers and does not charge for its services. Section 25A strikes a careful balance reflecting the obligation of the United Kingdom under the Refugee Convention. It would be strange if a person who facilitated the arrival into this country of an asylum seeker would not be guilty of an offence under section 25A designed specifically to deal with asylum seekers but guilty of the general offence in section 25. Given that an asylum seeker who presents himself to an immigration officer at an airport and claims asylum is not an illegal entrant or, at least for the time being and following temporary admission, not unlawfully in the United Kingdom, section 25 would, on our preferred interpretation, not bite. It would be strange if Parliament, by enacting the 2004 Act intended to interfere with the balance achieved in 2002 when enacting section 25A." 19. As Mr Kivdeh pointed out to us, those cases were specific cases of immigrants who presented themselves on arrival to immigration officers, as the last passage of the judgment in Kapoor indicates. On the contrary, in this case what was alleged by the Crown was not the presentation of individuals to immigration officers in Spain saying "We want to go to the United Kingdom to claim asylum"; the case for the Crown was simply that facilitation was carried out to get people into Spain (as Mr Kivdeh put in his argument on sentence) through the use of forged documents. Therefore the distinction made in Kapoor in our judgment does not apply to the instant case. 20. We turn to the second point. It is, in our judgment, no answer to the offence charged that there may have been a parallel offence of conspiracy to commit an offence under section 25A. That may well have been the case. But it was, in our judgment, no objection to the preferment of a charge of conspiracy to convene section 25(1). 21. Finally, on the third point we do not accept that the offence in count 1 should have been charged under section 1(A) of the 1977 Act as a conspiracy to commit an offence overseas. The applicant was at all material times present in the United Kingdom. The acts constituting his part in the conspiracy were alleged to have occurred here. It is nothing to the point that the immigration law that was proposed to be broken was that of a foreign EU state. The entirely domestic offence of facilitation of a breach of immigration law includes breach of a law having effect in a member state. It is not a foreign conspiracy to do acts amounting to a conspiracy to commit the section 25(1) offence, which was what the applicant was accused of doing in the present case. 22. In R v Patel [2009] 2 Cr App R(S) 475, the offence concerned related to breach of United States immigration control. It appears from the opening words of the judgment, given by Hughes LJ, that the offence with which the court was concerned was a conspiracy to commit trafficking of persons across the world. The United States of America is not a member of the European Union and therefore no charge of conspiracy to commit a domestic offence under section 25(1) in relation to an EU state could be brought. 23. That, in our judgment, deals with the principal ground upon which the applicant challenged the learned judge's ruling on the submission of no case. However, there is a second and subsidiary point. The applicant also challenges the judge's finding that there was sufficient evidence of a breach of the law of the relevant member state because of the absence of any certificate under section 25(3) as to the law in question. 24. Section 25(3) of the 1971 Act provides as follows: "A document issued by the government of a member State certifying a matter of law in that State – (a) shall be admissible in proceedings for an offence under this section, and (b) shall be conclusive as to the matter certified." 25. In our judgment that subsection is an example of a well-known legislative device whereby some fact of foreign law (perhaps of diplomatic or other status) may be admitted or proved in evidence. However, compliance with this particular legislative device is not, in our judgment, the only manner in which the content of a relevant foreign law may be proved. It may be proved by way of expert evidence. Alternatively, as appears in this case, it may be proved by an admission as to what the foreign law is. The Crown had provided details of the provisions of Spanish law, and Mr Chalk (junior counsel for the Crown) has read to us this morning the relevant admission that was made shortly before the close of the Crown's case. It is not suggested that the relevant provisions, as supplied in translation, were not accurate statements of the relevant law for the jury's consideration. Further, as is submitted in paragraph 4.2(ii) of the Respondent's Notice, there was, in fact, significant evidence of the fact of contravention of Spanish law in the course of this conspiracy, not least by the reason that the evidence of arrest in Spain of Iranian immigrants whose entry was being assisted by these alleged conspirators. Compliance with the precise mechanics of section 25(3) is permissive only. It is not, in our judgment, the only manner in which conspiracy to breach the law of a member state could be proved on the facts of the case. 26. The final remaining ground on the conviction appeal relates to the direction to the jury about evidence relating to count 5 (encouraging or assisting the commission of a fraud), which the judge had withdrawn from the jury's consideration. 27. Count 5 related to the fabrication of allegedly bogus asylum histories for potential immigrants. The gain that had to be established for the purposes of the offence under section 2 of the Fraud Act, the underlying offence for the "encouragement or assistance" which was charged in the indictment, extends only to gain or loss in money or other property: see section 5 of the Fraud Act 2006. The prosecution's case was that in a case such as the present the achievement of asylum status opened the doors to a number of financial benefits to the person concerned, which met the statutory test. The judge disagreed. Count 5 was accordingly withdrawn from the jury. 28. It is now suggested, however, by Mr Kivdeh that the evidence of alleged bogus histories and certain other evidence, to which we will refer in a moment, should not have been left to the jury's consideration on the other counts. 29. The evidence about which particular objection is taken concerns the finding of a briefcase in the applicant's office which contained certain materials which might be said to be useful to persons seeking to establish an asylum claim. They were blank summons documents from Iranian Courts, rubber stamps purportedly from the Iranian Courts, and e-mail exchanges about the potential back-dating of histories of individuals involved in potential asylum cases. 30. Mr Kivdeh tells us, in his helpful grounds of appeal, that, after rejecting the defence submission of no case to answer, the judge went on to tell the jury that this evidence was relevant to the remaining counts. With that direction we respectfully agree. The jury was reminded of aspects of it in the summing up of the facts. However, somewhat mysteriously, at page 9E-H the judge is recorded as saying that the fabrication of asylum accounts was irrelevant to the other charges. Mr Kivdeh's objection to the briefcase materials was that the documents were exclusively material to the establishing of an asylum claim (genuine or otherwise) once someone had arrived in the United Kingdom, rather than for the facilitation of any of the breaches alleged in the indictment. 31. We must consider carefully that (on the face of it) somewhat unattractive submission. It seems to us that this material was clearly evidence upon which the jury could rely in establishing the enterprise for which the Crown contended. The fact that part of the enterprise consisted of matters that were to happen here, hypothetically, after arrival does not make them irrelevant to what the course might be before such arrival was achieved. In our judgment all this evidence was clearly relevant to the other charges. No harm was done by the treatment of this aspect of the case in any part of the learned judge's summing-up. 32. It is further submitted by the Crown that, following the submission of no case to answer, time was sought in which to consider whether, in the light of the withdrawal of count 5, the jury should be discharged from considering the other matters. Equally, in the Respondent's Notice the Crown say that it sought to invite any other consequential submissions that ought to be made in relation to the other counts in the light of that withdrawal of count 5. It appears that no such applications were made. 33. In the circumstances, therefore, we consider that for the reasons we have given the evidence was properly admitted. For all these reasons, therefore, we consider that the renewed application for leave to appeal against conviction must be refused. 34. We turn to the application for leave to appeal against sentence. The applicant is now 58 years of age. He was of previous good character. As the medical evidence which we have seen indicates, he had some mental health and other health problems of which, having considered that material for questions of fitness to stand trial, the judge was well aware. 35. In passing sentence on the applicant the learned judge's sentencing remarks included the following: "Aya Bina, you have been convicted after trial of conspiracy to facilitate a breach of immigration law in Spain, conspiracy to traffic asylum seekers to the UK, and of the trafficking of two specific asylum seekers to the UK for gain, and of converting the benefit of your criminal conduct, ie the money you were paid for this enterprise into various bank accounts, including those in your wife's name, and further converting the proceeds of your criminal activity by using it to rent property, to run a hair salon and to purchase and run motor vehicles. The total amount of money involved in counts 6 to 9 amounts to over £500,00 and I am sure that does not represent the total amount that was gained. … … You undoubtedly have been running this criminal business for many years, stretching back, I am sure, long before the earliest dates of the bank accounts that were produced by the prosecution in this case. Indeed, you have said so yourself, as was evident from the telephone transcripts, that you had been doing this for many years. You were controlling the operation using the UK based political party you had set up with others: the United Iranian Party. I accept that the organisation was involved in some political activity against the Iranian regime, but I do not accept that was what drove your activities. I consider that you largely used the UIP as a convenient front for what in reality was a business, the main purpose of which was to offer Iranian nationals who wanted to come to the United Kingdom a service whereby you and others acting under your instruction would facilitate their journey from Iran through European courts, including Spain, to the United Kingdom using whatever means were at your disposal and avoiding proper immigration control, and you knew perfectly well what the situation was in Spain regarding the lack of immigration status of these individuals. These people were your clients, as you described them, in what was clearly a momentary slip in your evidence. … … You charged your clients for this service significant sums of money and it was plain from the evidence that for the last six years, and I say very likely much longer, that you have been earning a very good living from this criminal enterprise. I consider therefore that the whole of the money credited to your accounts should be seen in that context. Over the same period you were claiming council tax and housing benefit to the tune of over £50,000. …" 36. In the proposed appeal against sentence it is argued that the learned judge was wrong to sentence the applicant on the basis that he was the "main man" in the conspiracies. It is said that the judge did not identify how many people's breach of the law was facilitated, although it is recognised that 2,000 files had been seized from the applicant's office. Mr Kivdeh this morning says that there were a great deal more than simply immigration matters, and the 2,000 files could not be treated as involving 2,000 immigrants in the offences of which the applicant by this stage had been convicted. 37. It is said that the judge misdirected herself in concluding that the entire £500,000 must have been derived from criminal conduct. It is further submitted that the judge failed to take due account of the mitigation in terms of the applicant's age, his health, his past history and mistreatment in Iran, his character, and the fact that there was no evidence of injury or threat to life. 38. In refusing the application for leave to appeal against sentence, the single judge said this: "These were offences on a grand scale. The judge was entitled to conclude that you were 'the UK head' of this enterprise, that it had been going on for a long time, that despite your concern for your compatriots, you were motivated by gain, and that you made a great deal of money out of it. Sentences totalling nine years' imprisonment for what you did for a man of your age and background was tough but it was not too long." We agree with those observations. 39. We have been helpfully referred by Mr Kivdeh this morning to a number of authorities, including R v Kao [2010] EWCA Crim 2617 , R v Van Binh Le and Others [1999] 1 Cr App R(S) 422, R v Oliviera and Others [2013] 2 Cr App R 18 , and R v Naillie [1993] 2 WLR 927. 40. To the observations of the single judge we would simply add this. To facilitate the entry of asylum seekers is to obtain gain from the acutely vulnerable. The submission that somehow or other the fact that the people involved were asylum seekers is hardly, in our judgment, a mitigating factor. We would add that the applicant's criminal conduct is, in our judgment, a sad response to the grant of refugee status. He has repaid that grant of status with grossly abusive behaviour in respect of the immigration laws of the European Union and of the country that afforded him sanctuary, and has done so for personal gain. 41. We have no hesitation in refusing this wholly unmeritorious renewed application for leave to appeal against sentence. ___________________________

2014_06_11-3427.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/1444/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/1444

2011551b2fef3ba8c709ff21b1dd044c876f2aca67a124249ccb5b59996054ee

[2009] EWCA Crim 2213

EWCA_Crim_2213

2009-09-04

crown_court

No. 2009/03585/A4 Neutral Citation Number: [2009] EWCA Crim 2213 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Friday 4 September 2009 B e f o r e: LORD JUSTICE RIX MR JUSTICE COLLINS and HIS HONOUR JUDGE PERT QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - - - - - - - - - - R E G I N A - v - DAVID BARRETT - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merril

No. 2009/03585/A4 Neutral Citation Number: [2009] EWCA Crim 2213 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Friday 4 September 2009 B e f o r e: LORD JUSTICE RIX MR JUSTICE COLLINS and HIS HONOUR JUDGE PERT QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - - - - - - - - - - R E G I N A - v - DAVID BARRETT - - - - - - - - - - - - - - - - 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 F P Nance appeared on behalf of the Appellant - - - - - - - - - - - - - - - - J U D G M E N T Friday 4 September 2009 LORD JUSTICE RIX: 1. On 11 May 2009, in the Crown Court at Preston, the appellant, David Barrett, pleaded guilty to burglary with intent to cause unlawful damage. On 12 June 2009 he was sentenced by Mr Recorder Altham to 44 weeks' imprisonment with a direction that six days spent on remand should count towards sentence. 2. The appellant's co-accused, Ricky Kneale, pleaded guilty to the same offence and was similarly sentenced to 44 weeks' imprisonment. He had been in custody on remand for 132 days prior to his sentence and the judge made a direction that those days should count towards his sentence. 3. The appellant now appeals against sentence by leave of the single judge, who gave leave principally so that the argument may be advanced that credit should be given to reflect the time that the appellant had spent on curfew. That was because the appellant had spent 126 days on a 12 hour curfew between the hours of 7pm and 7am. 4. The background facts can be briefly stated because the ground of appeal does not arise out of any aspect of the facts. The appellant and his co-defendant had gone to the home of people who had been involved in the supply of drugs which had led to the death of a friend of the appellant and the co-defendant. They had gone to that home with the intention of causing unlawful damage and hence were guilty of the offence charged of burglary with intent to cause unlawful damage. In fact, £1700 worth of damage had been caused to the house in question. However, ultimately the Crown accepted that that damage had, as the defendants had said, been caused by others before their arrival. In effect, therefore, their offence had not caused the damage to the home which they had targeted. 5. The appellant was born on 8 August 1983. He had thirteen previous convictions for 18 offences, which included four offences of damaging property. However, there had been no previous convictions for burglary. The great majority of his offending had taken place between the ages of 17 and 18, with a very marked reduction in his offending in the last seven years, as a favourable pre-sentence report pointed out. It cited the appellant's co-operation with previous community orders and licence supervision. 6. The sentencing judge took the view that only immediate custody could be justified. Taking full account of the guilty pleas and the record of each defendant, he sentenced them both to 44 weeks' imprisonment and ordered that time spent in custody on remand should count towards sentence. 7. There is today a single ground of appeal advanced by Mr Nance on the appellant's behalf. It relates to the question of whether the judge ought to have made some allowance for the fact that during 126 days before sentence the appellant had been subject to a twelve hour curfew. It is accepted that he complied with that curfew. He was visited on almost every day by the police who found him where he ought to have been. That is all recorded in a schedule of those visits which is before the court. 8. The starting point of this submission is the new provision brought into effect on 3 November 2008 contained in section 240 A of the Criminal Justice Act 2003 . We will not cite the detailed provisions of that section. Their effect is that where an offender has been remanded on bail by a court in connection with proceedings for his offence and the bail is subject to a qualifying curfew condition, defined as a condition which requires the person granted bail to remain at a specified place for a total of not less than nine hours in any given day, then credit should be given for half the number of days during which the bail was subject to that condition. For example, if an offender had been subject to such a bail condition for ten days, he should be given credit for five days against his sentence. 9. The appellant, as is accepted, does not come within the provisions of that section which was in effect at the time of sentence because he was not electronically tagged. That is a further condition for the application for the allowance made by section 240 A. Mr Nance makes the appealing submission that a defendant who is trusted sufficiently to be given bail on a curfew condition, but without the necessity of electronic tagging, should not be in a worse position than a person who is only trusted with that curfew condition on the basis that he is also electronically tagged. Although that is an appealing submission, the fact remains that Parliament has chosen to make the two conditions of a curfew of at least nine hours and electronic tagging as conditions upon which the allowance of half a day for each day spent subject to such a curfew is to be granted. It is therefore not, in our judgment, for the courts to re-write that statute and to say that it is to apply generally in cases which do not meet its conditions, including that of electronic tagging. 10. In those circumstances, in a fall-back submission, Mr Nance has drawn to our attention the fact that in recent years, particularly in the context of very lengthy house arrests imposed upon terrorist suspects, the question has arisen whether some account should be allowed under general common law principles of sentencing, rather than any particular statutory provision, to take account of that deprivation of liberty which is represented by such a severe limitation of freedom. That matter was considered in R v Glover [2008] EWCA Crim 1782 , which is referred to in R v Abdul Sherif [2008] EWCA Crim 2653 ; [2009] 2 Cr App R(S) 33. At paragraph 35(c)(ii) and (iii), the Vice President (Latham LJ) referred to Glover and the consequences of the new provisions of section 240 A of the 2003 Act . Latham LJ referred to Glover as a case in which the appellant had been effectively subject to a 24 hour curfew electronically monitored. We are not sure what is meant by "an effective 24 hour curfew" because we are doubtful that such a curfew can in fact be imposed. Nevertheless, it was in some such context that Hughes LJ, while pointing out that it was wrong to equate time spent under a home curfew with imprisonment because life at home was clearly preferable to life in prison, went on to say: "It is possible that in some circumstances a judge might be persuaded by the facts of a particular case to make some modest adjustment in the final sentence in circumstances of this kind, but it seems to us that that is a question of assessment by the judge in each case." 11. We emphasise that the circumstances of that case appear to have been much more serious than those which we are considering in this case. That was also a case in which there had been a lengthy curfew electronically monitored. Latham LJ went on to say this: "It does not appear as though the court was there addressed on the effect that should be given to the passing of the 2008 Act. In our view, until section 240 A comes into force, a court should deal with the matter in the way suggested by Hughes LJ at least in relation to house arrest. This may justify a modest period of credit in cases such as the present one. The periods spent under house arrest were substantial, in the region of sixteen months. The figure we consider appropriate is three months. But the same considerations do not apply where the curfew is in the night. A curfew period of this sort has been commonplace for many years and whilst the court may of course have had regard to the restriction of liberty, it has not in the past made any formal reduction for such a curfew." Mr Nance rightly addressed us on the basis that those remarks of Latham LJ did not assist him. In particular, we have in mind Latham LJ's comment that a night time curfew is not by any means the same thing as a longer daily period spent under house arrest. 12. In our judgment, despite the limitations of the provisions of section 240 A, it appears to be the position at common law that in an appropriate case and on its particular circumstances a judge could give some allowance for a lengthy curfew, even outside the statute, and particularly in the case of electronic tagging. In this case Mr Nance seeks to draw support from the fact that there were two defendants before the judge, one of whom, because he spent all of his time on remand in prison, was given a full allowance for that time on remand, whereas the appellant, because he was bailed on curfew (albeit not electronic curfew), was not entitled to a partial allowance for that period. Mr Nance submitted that there was an element of unfairness in that comparison. 13. We do not consider that that is so. The fact is that whereas one defendant spent the whole of the 132 days in custody, the other defendant spent only six days in custody and was at liberty for the rest of the 126 days, albeit that his liberty was restricted to the extent of a night time curfew without tagging. The judge did not consider it necessary to make an allowance in such a case of a night time curfew. In our judgment he was right not to do so. 14. We are very far from saying, however, that every example of a curfew without electronic tagging should not be reflected in some allowance. There may be particular circumstances in which a judge might think it right to do so. One example might be where both defendants are bailed on curfew, but for some reason one defendant only is bailed on curfew with electronic tagging and the other defendant is not. In such a case the judge may seek to adjust the effect of his sentence between the two defendants by taking account outside section 240 A of the curfew suffered by that defendant who did not have imposed upon him in addition an electronic curfew. 15. Although it is an appealing submission that a defendant who may be entrusted to be without electronic tagging should not be worse off for that reason, nevertheless, we consider that on the facts of this case we have the typical case of a night time curfew, two defendants, one who spent all of his time in custody on remand and the other who did not. In those circumstances we dismiss this appeal.

2009_09_04-2068.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/2213/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/2213

2926113c575a8322fe85f18ab5ededa3dbd6efbb43b7e68ddf850846d9216248

[2008] EWCA Crim 2454

EWCA_Crim_2454

2008-10-08

crown_court

Neutral Citation Number: [2008] EWCA Crim 2454 No: 200802203/D1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 8 October 2008 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE GRIFFITH WILLIAMS THE RECORDER OF WINCHESTER (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A v PAUL FRANCIS MOSS - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph No

Neutral Citation Number: [2008] EWCA Crim 2454 No: 200802203/D1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 8 October 2008 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE GRIFFITH WILLIAMS THE RECORDER OF WINCHESTER (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A v PAUL FRANCIS MOSS - - - - - - - - - - - - - - - - - - - - - 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 C Griffiths appeared on behalf of the Appellant MR C Convey appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE TOULSON: On 8 December 2005 at St Albans Crown Court, the appellant pleaded guilty to conspiracy to import cocaine and to a large number of drug offences. On 21 December 2005 he was sentenced to a total of 17 years' imprisonment, less 208 days spent on remand, and to a travel restriction order for 25 years, subsequently reduced on appeal to 15 years. 2. On 6 March 2008 a confiscation order was imposed on the appellant by His Honour Judge Plumstead in the sum of £1,433,753 to be paid within 12 months with five years' imprisonment consecutive in default. The judge found that the appellant had a criminal lifestyle and against that finding there is no appeal. He assessed the appellant's total benefit in the sum of £4,357,823, but assessed the appellant's recoverable assets in the lower figure for which he made the confiscation order. 3. A large number of grounds of appeal were advanced. The single judge granted leave in respect of certain grounds and referred others to the Full Court. He drew attention to the unsatisfactory and confusing state of the papers and directed that counsel should prepare a schedule of the judge's findings in order that on the appeal this court could see more clearly what were the issues, what were the findings challenged and what was the material before the judge to support those findings. We are grateful to counsel for their co-operation in preparing an agreed schedule and list of issues. 4. In relation to the grounds on which leave to appeal was granted there remains one substantial contested issue to which we turn first. The benefit found by the judge included the sum of £2,150,0000, described in the schedule as being in respect of cocaine recovered from the yacht Are Nui. The yatch had been used in a drugs enterprise in which the appellant was involved and the yacht had been seized. 5. Although the schedule succinctly and realistically shows the figure as being in respect of the drugs recovered from the yacht, the judge was forced to approach the issue of any benefit which could be ascribed to the appellant's activities respecting that shipment in a circuitous manner as a result of the decision of this court in the case of Hussain [2006] EWCA Crim 621 . In that case it was held that drugs unlawfully held are to be regarded as having a nil market value, whether for the purpose of assessing an offender's benefit from crime or his available assets because "market value" in section 79 of the Proceeds of Crime Act 2002 is to be taken as meaning value in a lawful market. The authorities in this area were considered recently by this court in the case of Islam [2008] EWCA Crim 1740 , in which the court itself to be bound by Hussain but certified that there was an issue fit for consideration by the House of Lords. 6. The judge appreciated that he could not therefore treat the goods in the form of the cocaine, which were the subject of that shipment, as valuable property derived from the appellant's criminality. However, it is possible for a court to infer on appropriate facts that the purchase of such drugs must have come from prior criminal activity and to use market evidence to calculate what the purchase price must have been, so as to infer a prior benefit from other criminal dealings of that amount. The difficulty which faced the judge in this case was that the appellant had been involved with others in the Are Nui enterprise. The appellant's account was that the entire transaction was conducted on a credit basis. Unsurprisingly the judge rejected that implausible suggestion. He found as a fact that the purchase had been funded by one means or another up front, and that this appellant and another had been responsible for providing or securing such payment. He went on to make an explicit finding that he could not say, nor could anyone say, which conspirator had paid what and when. Nevertheless, he considered that it was open to him infer that the appellant had received an antecedent benefit from his general criminal lifestyle, equal to the full amount of the purchase price of those drugs. He did so by applying the assumption in section 10(4) of the Act . That section provides as follows: "(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. ... (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." 7. The judge's reasoning can be summarised as follows. This venture was a joint criminal enterprise. Joint participants in a criminal enterprise are jointly liable for all that they do. The expenditure provided in order to purchase the goods was made pursuant to the criminal venture for the benefit of the conspirators. Accordingly, it was to be assumed against this appellant that it came from property obtained by him as a result of his earlier criminal conduct, regardless of what sum he in fact contributed to the purchase of the goods, as to which, as already recorded, the judge said it was impossible to make any finding of fact. 8. It was submitted on his behalf by Mr Griffiths that the judge was wrong to apply the assumption in that way.Mr Convey for the prosecution submitted that the judge was right. He submitted that when criminals obtain property pursuant to a joint enterprise, each is deemed to obtain the full benefit of the property so acquired. By parity of reasoning, where criminals incur expenditure each is deemed to have had the assets from which the expenditure was incurred. We accept Mr Griffiths' submission that the judge fell into error in the way that he approached this matter. 9. As to the prosecution's submission, the first point requires qualification. There is a clear distinction between criminal culpability for acts done pursuant to a joint enterprise and the benefit obtained by any particular conspirator. In terms of criminal liability all are liable to be punished for what is done by any of them pursuant to the conspiracy. The greater the role of any particular conspirator, the heavier the punishment he may deserve. 10. What benefit has been obtained by any particular defendant is a question of fact. Different conspirators may benefit in different amounts. This subject was considered in the recent trio of cases in the House of Lords, May [2005] UKHL 28 , Jennings [2008] UKHL 29 and Green {2008] UKHL 30, particularly Green at paragraph 15. The matter was summarised more recently in the decision of this court in Sivarman [2008] EWCA Crim 1736 at paragraphs 12, 13 and 19. 11. A statutory assumption should not be applied if to do so would be contrary to common sense. The purpose of the third assumption is plain. If somebody is proved to have had a criminal lifestyle and can be shown to have incurred some particular expenditure, he is effectively put to proof to show that the expenditure came from a lawful source. The underlying common sense assumption is that if an offender has expended the money, he had the money to expend in the first place, and that, if he is a career criminal, the money which he used for that expenditure is likely to represent the proceeds of crime. If not, he should be able to demonstrate to the court the innocent source. But the starting point is a finding that a defendant has incurred expenditure. 12. Suppose that separate amounts of money are expended on a joint venture, let us say, by offenders A, B and C. If A, B and C each contributes £100,000 towards a venture, be it criminal or non-criminal, there is no warrant as a matter of common sense for treating offender A as having previously had £300,000, i.e the total amount of his, B's and C's contributions, from his past conduct. The same must apply when the judge concludes that A and another or others made contributions but he is unable to make any finding as to the amount expended by A. 13. Mr Convey submitted that if the court were to take this approach it would have very severe practical consequences when dealing with criminals like this appellant who do not keep open and honest accounts. 14. There are a number of possible answers to that question. We recognise that the problem stems from the present state of the law which requires the prosecution in a case of this kind to take the rather circuitous route of using market evidence to infer a prior benefit rather than being able to point directly to the acquired drugs as an actual benefit. It remains to be seen whether the law in that respect will be changed. But as things are it would have been open to the prosecution to invite the judge to have taken a different practical approach. It would have been open to the prosecution to invite the judge, for example, to find that if there were two conspirators and the offender elected to give no evidence, or gave evidence which was disbelieved, it could not unfairly be assumed that he provided half the funds. What facts may properly be found by the judge are a matter of evidence. It remains that in this case that the judge made a positive finding that it was impossible to tell how much the appellant had paid for these drugs. 15. At a late stage in the argument Mr Convey sought to advance an alternative argument, that this court should at least make some finding of the amount paid by this appellant to purchase these drugs, and from that finding should infer that this amount came from previous criminal conduct. He suggested that this court should find that the appellant provided 50 per cent. Alternatively, he submitted that this appellant should be found to have provided £600,000, based on evidence about the funding by the appellant of a previous similar drugs venture. 16. There are difficulties about that approach. In the first place, this court is a court of review. If the judge had made such findings this court would have been slow to disturb them. But the judge made an explicit finding that no facts as to the amount of payment could be made, and it is a different matter for this court then to make a finding of fact which the judge found it impossible to make. 17. Furthermore, this point has been raised at a very late hour. It was open to the prosecution to have sought to put its case in alternative ways. Moreover, the appellant wishes also to challenge the basis of the judge's factual findings about the cost of the drugs involved in the relevant venture. 18. We could not fairly allow the prosecution to advance its alternative case at this stage without letting the appellant develop his challenge against the judge's findings and that would involve us having to look at a not insubstantial amount of evidence which is not presently before the court. We note also that the removal of this item from the benefit found by the judge will make no difference to the amount of the confiscation order. Its only possible relevance for the future would be if the appellant were to be found to have some previously undiscovered source of wealth and the prosecution wanted to apply for an increase in the amount of the confiscation order. 19. For those reasons we uphold the appellant's challenge to the judge's ruling on this issue and decline to allow the prosecution to advance an alternative case on it. The consequence of this finding is that the benefit figure found by the judge will be reduced by £2,150,000. The total amount of the assessed benefit will therefore be £2,207,823.22. 20. There was another ground on which leave was granted, but in respect of which there is now no dispute. The order of the court did not as drawn reflect the judge's intention. There is no need for us to say more formally about that issue in the course of this judgment. 21. We turn to the issues on which the appellant has not been granted leave, but seeks leave. We deal with these more shortly. 22. Complaint is made that the judge included as part of the appellant's benefit a sum of £550,000, which the appellant admitted to having paid over to a German co-conspirator, but in evidence said was made on behalf of another person. The complaint is that this sum did not form part of the benefit asserted by the prosecution at the time of the confiscation hearing. The prosecution had earlier sought to advance this as part of the appellant's benefit, but had abandoned that part of the claim. However, the matter emerged during the course of evidence. It was pursued by the judge himself and he found that it did represent benefit obtained by the appellant. 23. We can see no unfairness in the way the judge proceeded. Where an issue arises in the course of a hearing, which was not being advanced as part of the offender's benefit at the start of the hearing, it must always be a question of fairness whether the judge thinks it right to take the matter into account or not. He will obviously have to consider whether the offender has had a fair opportunity of dealing with the matter. In this case the appellant gave his evidence about it. The judge disbelieved him. We can see no injustice in the way that the judge approached the matter. Accordingly, leave on this ground is refused. 24. Next, complaint is made that the judge applied the assumption set out in paragraph 10(3) of the Act . That subsection provides: "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." 25. It is observed that there is no cut-off date as to the date of acquisition of property to which that subsection can apply. Here Parliament has drawn a distinction between property held by the defendant and expenditure by the defendant. Under section 10(4) the assumption in relation to expenditure only applies to expenditure occurred after the relevant day, i.e within a period of six years prior to the commencement of the relevant proceedings. 26. All the provisions of section 10 are subject to section 10(6) , which prohibits a court from making an assumption where there will be a serious risk of injustice if the assumption was made. In this case much of the property held by the appellant had been held by him for a long time. He advanced explanations for it. The judge was unimpressed by those explanations and held that they were insufficient to rebut the statutory assumption. We can see no arguable error of law in the judge's approach to this matter. Accordingly, we also refuse leave to appeal in respect of that ground. 27. Finally, complaint is made about the judge's approach to the valuation of two items of real property. One is a property in Wembley valued by the judge at £284,803. He did so on the basis of Nationwide Building Society website evidence regarding movement in values of properties with the relevant postcode. The appellant wishes to contend that he should have accepted a lower valuation put forward by the appellant. We see no arguable basis for saying that the judge erred in law in taking the approach that he did. 28. The other property about which complaint is made is in Barbados. There the judge went on the figures derived from a land tax office. Again, we can see no arguable error of law in the judge accepting that method of valuation. Accordingly, leave to appeal is refused on that ground also. 29. The result is that the order made by the judge will be varied to the extent indicated in relation to the first item and will also be varied to deal with the issue about which the parties are agreed, where the order does not reflect the judge's intentions. 30. LORD JUSTICE TOULSON: It is rightly pointed, and I do apologise, it is what comes from it being at the end of the day, but I have been taking counsels' names off the previous case. That was very foolish of me and I apologise for the discourtesy to each. None was intended. I ask the shorthand writer please to note that counsel for the appellant in this case is Mr Griffiths and counsel for the prosecution is Mr Convey. 31. MR GRIFFITHS: Your Lordship is very gracious. 32. LORD JUSTICE TOULSON: Judge Broderick thinks I referred by a slip of the tongue to £3,000 rather than £300,000. If I have, and the shorthand writer picks it up, please make the correction. If not, I will keep an eye on that and amend it when the transcript comes through for approval. 33. MR CONVEY: My Lord, two matters, one very short and one a little if I may. 34. I think the figure read out by the court for the final figure may have been very marginally in error by my calculation. I make the final figure £2,207,822. I think it was 823. 35. MR JUSTICE GRIFFITH WILLIAMS: I am at fault for that. I had written down the wrong figure as a starting point. 36. LORD JUSTICE TOULSON: Thank you very much. 37. MR CONVEY: Yes. My Lord, a slightly longer matter under section 33 of the Criminal Appeal Act. I would invite the court to certify a point of public importance. 38. LORD JUSTICE TOULSON: Well, I think your best line on this would be to set it out in writing because one would need to know what exactly is the issue being certified -- to be required to be certified, and it is often overlooked that the requirements for certification are not just that there is a point of law of some general importance, because very often counsel are able to say in a criminal case there is a point of some importance, but that this court considers it desirable that it should be heard by the House of Lords and we would need to be persuaded on both grounds. It may be that in the past this court has tended to concentrate on the first and rather overlook the second. But I think you will find that this court in future is going to be looking very carefully at both grounds. 39. Now, experience generally suggests that these applications are better put on paper when counsel have had an opportunity to think, rather than dealt with on the hoof. 40. MR CONVEY: My Lord, may I say this? I have had the opportunity to draft and not to consider it, and the way your Lordships are dealing with other matters similar next week, I will endeavour to have -- 41. LORD JUSTICE TOULSON: I think we have one more day of confiscation cases. Do we have the pleasure of your company next week? 42. MR CONVEY: No, my Lord. But I can probably get it down in writing and to the court by tomorrow or this evening. If it is suitable to be considered at that juncture -- 43. MR JUSTICE GRIFFITH WILLIAMS: You might make enquire of the Appellate Committee. An application may have been made, or about to be made, in another case. 44. LORD JUSTICE TOULSON: You may want to find out where Islam has gone to. They probably won't have had a chance to consider the leave application yet because it would only have gone in at the end of the summer term. 45. MR CONVEY: This point is simply on joint enterprise and expenditure. 46. LORD JUSTICE TOULSON: I appreciate that, but the reason why you had to go round the houses was because of the problem -- 47. MR CONVEY: Because of the bar on the market value. I will put it in writing. 48. LORD JUSTICE TOULSON: Yes, put it in writing. Thank you.

2008_10_08-1661.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/2454/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/2454

24c85c1558f641499e374abf7e8fd5ee74b5b50a4c45fde0d84e44e5e4120fac

[2019] EWCA Crim 499

EWCA_Crim_499

2019-03-06

crown_court

Neutral Citation Number: [2019] EWCA Crim 499 No. 2016/03007/B2, 2016/03009/B2, 2017/01957/B2, 2016/03012/B2, 2016/03062/B2, 2017/03140/B2,2016/03017/B2 & 2016/03018/B2 IN THE COURT OF APPEAL CRIMINAL DIVISION The Law Courts 50 West Bar Sheffield South Yorkshire S3 8PH Wednesday 6 th March 2019 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Burnett of Maldon ) MR JUSTICE GOSS and MR JUSTICE LAVENDER __________________ R E G I N A - v - KHALID ZAMAN TAUKEER BUTT HEDAR A

Neutral Citation Number: [2019] EWCA Crim 499 No. 2016/03007/B2, 2016/03009/B2, 2017/01957/B2, 2016/03012/B2, 2016/03062/B2, 2017/03140/B2,2016/03017/B2 & 2016/03018/B2 IN THE COURT OF APPEAL CRIMINAL DIVISION The Law Courts 50 West Bar Sheffield South Yorkshire S3 8PH Wednesday 6 th March 2019 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Burnett of Maldon ) MR JUSTICE GOSS and MR JUSTICE LAVENDER __________________ R E G I N A - v - KHALID ZAMAN TAUKEER BUTT HEDAR ALI HAIDER ALI TAHIR MAHMOOD MOHAMMED RAMZAN __________________ 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. ____________________ J U D G M E N T (Approved) ____________________ A P P E A R A N C E S : Mr Khan appeared on behalf of the Appellant Khalid Zaman Mr T Z Khan QC appeared on behalf of the Applicant Taukeer Butt Mr S Uttley appeared on behalf of the Appellant Hedar Ali Miss F Hussain appeared on behalf of the Appellant Haider Ali Miss F Hussain appeared on behalf of the Applicant Tahir Mahmood Mr A Nadim appeared on behalf of the Appellant Mohammed Ramzan Mr R Wright QC appeared on behalf of the Crown __________________________ Wednesday 6 th March 2019 THE LORD CHIEF JUSTICE: 1. There are before us six applicants/appellants who were found guilty in two of a series of trials in the Crown Court at Leeds concerning the serious sexual abuse of vulnerable underage girls. Khalid Zaman, Haider Ali, Hedar Ali and Mohammed Ramzan were convicted on 26 th May 2016 before His Honour Judge Marson and were sentenced by him on the following day. Taukeer Butt and Tahir Mahmood were convicted in an earlier trial on 28 th April 2016 before the same judge and were sentenced by him on 29 th April 2016. 2. At the time of the offending Zaman was aged 36; Ramzan 33; Haider Ali, 38; Hedar Ali, 39; Butt, 28; and Mahmood, 42. 3. Zaman and Ramzan both renew their applications for leave to appeal against conviction following refusal by the single judge. They also appeal against sentence with limited leave from the single judge. Both Haider Ali and Hedar Ali also appeal against sentence with limited leave of the single judge. 4. The common ground of appeal against sentence on which each relies is that the judge, whilst correct to place their culpability at the highest level for the purposes of the relevant definitive guideline, erred in placing the harm suffered by their victim at the highest level. The essence of the argument is that, whilst each readily accepts that the girl in question suffered very severe psychological harm as a result of the cumulative abuse she sustained at the hands of many men, their individual contributions to that was necessarily limited and so should have been reflected in the offending being located in a less serious category. 5. Ramzan has leave to rely upon a discrete point. It is that the judge mistakenly thought, at least until corrected, that at the time of the relevant offending Ramzan was on licence following his conviction for serious drug offences. In fact, he was sentenced for those offences in March 2012 and was not on licence at the time of the relevant offending. Ramzan suggests that the judge did not put that mistaken aggravating feature from his mind. 6. Hedar Ali has leave to pursue an additional argument, namely that the judge placed some of his offending into the wrong category in the relevant guideline. 7. Butt's application for leave to appeal against sentence has been referred to the full court by the Registrar. He relies on personal mitigation in support of his application. 8. Mahmood renews his application for an extension of time (fourteen months) in which to apply for leave to appeal against sentence, following refusal by the single judge. He relies on the general argument that the sentence was manifestly excessive and that the judge failed properly to take account of the principle of totality. 9. The judge had presided over the trials and was deeply familiar with all aspects of the conduct of each of the applicants/appellants, and also with the impact of their offending upon the principal victim. The Applications by Butts and Mahmood for Leave to Appeal against Sentence 10. The common feature between the two trials was that they each involved the serious sexual abuse and exploitation of "A", a girl born in 1995. The global offending covered the period between 2009 and 2011. 11. The provisions of the Sexual Offences (Amendment) Act 1992 apply to the offences with which this judgment is concerned. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during her lifetime be included in any publication if it is likely to lead members of the public to identify her as the victim of the offence. That statutory protection prevents "A" from being identified, as it does a second victim "B", whom we shall mention in due course. 12. Prosecutions were brought against a total of 24 men in a series of trials. The trial involving Butt and Mahmood had eleven co-defendants, although not all had a connection with each other. Butt was convicted on four counts of sexual activity with a child, contrary to section 9(1) of the Sexual Offences Act 2003 (counts 5, 6, 7 and 8). He was sentenced to ten years' imprisonment, concurrent on each count. Mahmood was convicted on two counts of sexual activity with a child (counts 12 and 14). He was sentenced to ten years' imprisonment, concurrent on each of those counts. One of those counts was a specimen count which represented sexual activity on three or four occasions. The child concerned in each of the incidents was A. 13. Mahmood was also convicted of sexual assault, contrary to section 3 of the 2003 Act (count 15). The child concerned was "B". He was sentenced to twelve months' imprisonment, to run consecutively to the sentences for sexual activity with A. Accordingly, his total sentence was one of eleven years' imprisonment. 14. A had a very troubled childhood. In her early years her mother was desperately ill with a progressive, fatal condition from which she died when A was only 13 years old. During the period of her mother's decline, A was left to fend for herself a good deal, along with an elder sibling. After the death of her mother, A's father quickly moved out of the family home and out of the lives of his children when he went to live with a new partner. The result was that A and her sister were effectively abandoned. They quickly found themselves in difficulties. They were picked upon by older men and used for sexual purposes. 15. The local authority became involved and in due course A found herself in care. Unfortunately, her experiences there were not happy ones and the local authority and foster carers were unable to protect her from the attentions of predatory older men. 16. The events relating to A, with which these two applicants were involved, occurred in Halifax. As we have indicated, Butt had sexual intercourse with her on four separate occasions. He was aged 26 at the time of the offending and she was aged 14 or 15. 17. Mahmood's offending occurred in June and July 2011, when A was in temporary foster care. She continually went missing. Mahmood, who was 41 years of age at the time of the offending, had sexual intercourse with her during that period. 18. The offence relating to B occurred when Mahmood was in a car. He touched her, rubbed her leg and squeezed her breasts over her clothing. Mahmood had no previous convictions. 19. In sentencing the applicants, the judge noted that he had observed A over a number of hours when he had watched her Achieving Best Evidence interviews and also recordings of her crossexamination. He had seen reports dealing with A. His conclusion was that she had been sexually abused in the grossest possible way and by very many men. In his sentencing remarks he recorded that A and her sister had been forced to fend for themselves following their mother's death. It was during that period that A began to drink, to take drugs and to fall victim to sexual exploitation. She was, as the judge noted, a deeply damaged child. He considered that the fact she was damaged was obvious to all who dealt with her. The judge rejected any suggestion that any of the defendants involved would not have appreciated her particular vulnerability. He noted the profound damage that she had suffered cumulatively, and that she continues to suffer from chronic post-traumatic stress disorder. She has had to move away from her home area. In reality, it is difficult to imagine a child being more damaged by the sexual abuse to which A was exposed. The judge said that the applicants share the responsibility for the damage done to her. He recorded that it was accepted on behalf of both applicants that the offending fell within category 1A for the purposes of the relevant guideline. That was because of the contribution made to the severe psychological harm suffered by A, her particular vulnerability, the fact that the sexual activity involved penetration of the vagina and also ejaculation. He also noted the impact of her being forced to move away. 20. The judge did not consider that the offending was planned in a significant way, albeit that it was repetitive; but it was at least opportunistic. By that he meant that it was well known that this young girl was available for abuse. In short, the judge concluded that A's availability became common currency amongst a wide group of men who took advantage of her. It was obvious that when she was engaged in sexual activity with the applicants, she was under the influence of alcohol and drugs, although the judge accepted that neither plied her with them. He noted the very significant disparity in ages between A and the two applicants. That was a significant aggravating feature. 21. In Butt's case, the judge had regard to all of the mitigation, of which Mr Khan QC has reminded us this morning, which included that his wife was then about to have a baby and that he had a seriously disabled child from a previous marriage. 22. The judge noted that Mahmood’s conviction on one of the counts was a sample count relating to three or four incidents of sexual intercourse, together with the other count relating to a single event. He regarded the sexual assault of which Mahmood had been convicted as falling within category 2B for the purposes of the guideline. He considered Mahmood's behaviour as involving an element of persistence, as well as an element of grooming. His mitigation included the fact that he provided financial support for his elderly parents who lived in Pakistan. 23. The definitive guideline provides that a single category 1A offence of sexual activity with a child attracts a starting point of five years' custody, with a category range of four to ten years' custody. The maximum sentence available is fourteen years' custody. 24. On behalf of Butt, Mr Khan submits that he is younger than the other offenders in the cases before us; that the family mitigation, to which we have referred, should have weighed more heavily with the judge than it did; that the offending was followed by five years out of trouble; that various features which might have made the offending worse, for example a significant degree of planning or abuse of trust, were absent; and that Butt has no previous convictions. 25. On behalf of Mahmood, Miss Hussain submits that the judge should not have moved to the top of the range when sentencing for sexual activity with a child and that the consecutive sentence of twelve months' imprisonment for the sexual assault was manifestly excessive, given its nature. 26. In refusing Mahmood's application for leave to appeal against sentence, the single judge said this: "Presuming in your favour that count 12 reflected three offences, the ultimate question is whether it is arguable that a total sentence after trial of eleven years' imprisonment for all five offences was manifestly excessive. Your offending was not opportunistic, rather there was an element of persistence to it. You first met the victim when she was aged around 14. It was rightly conceded by counsel then appearing on your behalf that all four sexual activity offences in counts 12 and 14 (all of which took place over a period of time, when the victim was aged 15) fell into Category 1A of the relevant guideline. As to harm, they all involved penile penetration of the vagina. As to culpability, they all involved the victim being specifically targeted because of her particular vulnerability, which was obvious, and because her availability had become known and (in your case) there was a very significant age disparity of around 23 years. There were additional aggravating factors in relation to each of the offences as well – the very severe psychological harm that the victim suffered and for which you shared part of the blame, together with the fact that she had to move away from her home and family on a permanent basis, the fact that the sex was unprotected, and that you ejaculated. Count 14 also involved an element of grooming and of assisting the victim to leave her foster parents' address for the night, and then having sex with her. The victim in count 15 was also a vulnerable teenager who had left school. You got into the back of a car where she was sitting, touched her leg and squeezed her breasts over her clothing. Given the victim's continuing vulnerability, the offence was correctly identified as being within Category 2B. Your mitigation consisted of the fact that you had no previous convictions, that you had been making efforts to support your elderly parents in Pakistan and the fact that you had not served a custodial sentence before. Given that the sexual activity offences each involved penile penetration of the vagina, more than one high culpability factor, and a number of additional aggravating factors, the judge was entitled to take the view that each was a very serious offence in its own right, and that in each case the additional aggravating factors greatly outweighed the mitigating features – such that each (and particularly count 14) required a sentence well above the starting point. He then had to balance the fact that there were four such offences committed over a period of time, and also the sexual assault on the other victim, with the principle of totality." We agree with that reasoning. In those circumstances we refuse the renewed application for an extension of time in which to apply for leave to appeal against sentence. 27. Similar reasoning applies in Butt's case. It was inevitable that a long custodial sentence would be imposed, despite the personal mitigation which flows from his family and other circumstances. We do not consider that the sentence imposed by the judge is arguably manifestly excessive. His application is also refused. Zaman, Ramzan, Haider Ali and Hedar Ali 28. Zaman was convicted of two counts of rape, contrary to section 1 of the 2003 Act (counts 7 and 8), and also one count of supplying a Class B drug to another, contrary to section 4(3)(a) of the Misuse of Drugs Act 1971 (count 6). He was sentenced to seventeen years' imprisonment on each of counts 7 and 8, to run concurrently with each other, and to six months' imprisonment on count 6, to run consecutively. His total sentence was, therefore, seventeen years and six months' imprisonment. 29. Ramzan was convicted of a single count of rape, contrary to section 1 of the 2003 Act (count 5). He was sentenced to fifteen years' imprisonment. 30. Haider Ali was convicted of one count of sexual activity with a child, contrary to section 9 of the 2003 Act (count 1), for which he was sentenced to five years' imprisonment. In addition, he was convicted of one count of causing a person to engage in sexual activity without consent, contrary to section 4 of the 2003 Act (count 2), for which he was sentenced to fifteen years' imprisonment, to run consecutively. His total sentence was, therefore, twenty years' imprisonment. 31. Hedar Ali was convicted of two counts of rape, contrary to section 1 of the 2003 Act (counts 9 and 11). He was sentenced to fifteen years' imprisonment on count 9 and to a concurrent term of seventeen years' imprisonment on count 11. He was also convicted of two counts of trafficking within the United Kingdom for sexual exploitation, contrary to section 58 of the 2003 Act (counts 10 and 12). He was sentenced to six years' imprisonment on count 10 and to eight years' imprisonment on count 12. Those last two sentences were ordered to run concurrently with each other but consecutively to the sentences on counts 9 and 11. His total sentence was, therefore, 25 years' imprisonment. 32. The broad facts surrounding the convictions of these four appellants were these. A went missing overnight in April 2011. On the morning of 12 th April, she called a police officer from where she had been staying in an hotel in Bradford. When the police officer arrived, A was intoxicated and had drugs in her possession. She told the police that she had been alone in the hotel room and that she had gone there to drink vodka and take drugs. The police examined the CCTV footage from the hotel. They saw A arrive in a car driven by Ramzan. It was clear to the police that a good deal of sexual activity had taken place in the room overnight. 33. Ramzan was interviewed. He readily admitted having sexual intercourse with A but said that it was consensual. He also said that he believed A to be 19 years old. His initial account was that she encouraged him to arrange for friends to join them at the hotel and that it was in those circumstances that Zaman arrived and also another man called Ataf Ali. A performed oral sex on both Ramzan and Zaman. Another man, Mohammed Askar, also arrived. 34. Both Ataf Ali and Mohammed Askar were defendants on the indictment. They faced a count of conspiracy to engage in sexual activity with a child (count 4). Their submissions of "no case to answer" were successful. 35. The renewed applications for leave to appeal against conviction of both Ramzan and Zaman flow from the consequences of the discharge of Mohammed Askar. Zaman accepted having had both oral sex and sexual intercourse with A. Neither Zaman nor Ramzan gave evidence at trial, but their defences were that whilst the sexual activity described had taken place, it was entirely consensual. 36. The outline facts concerning the two appellants Hedar Ali and Haider Ali are these. A originally met Haider Ali through her sister. She knew him for some time before anything untoward happened. They were in the habit of going to a flat which she thought belonged to Haider Ali, but in fact it belonged to another man. She was aged 14 or 15 when she started going to this flat with him alone. 37. On one occasion when she met him at the flat he told her that it was not his but owned by a relative. She did not meet the relative until her last visit to the flat. On that occasion Haider Ali gave her a sachet of crystals. They were drugs. She put them into her mouth. That made her feel unwell and (as she described it) "hyper". Haider Ali then had sexual intercourse with her. That was consensual and formed the basis of count 1, sexual activity with a child. 38. After they had had sexual intercourse, Haider Ali left the flat and returned with another man who told A that he owned the flat. Haider Ali insisted that A have sexual intercourse with this man and that if she did not do so, she would not be taken back to the place where she was then staying. He (Haider Ali) pinned her against the wall. The other man then held her down in the bedroom and raped her. The essence of that offence is that Haider Ali coerced A into being raped by this other man and used some violence to achieve it. 39. Hedar Ali was convicted of two counts of rape (counts 9 and 11) and two counts of trafficking for sexual exploitation (counts 10 and 12). These offences were committed in June and July 2011. A was then aged 15 and Hedar Ali was 31. He first met her when she was with her friend B. He encountered her in an area called Witherns. He pulled up alongside her in his car. He offered her a joint and a lift home, which she accepted. They exchanged contact details. 40. Later he contacted her and took her to an hotel in Bradford. She was often taken there by him to have sexual intercourse with many different men. He would take her there in a car with friends. He would then be given money by the men with whom A had sexual intercourse. He passed some of that money on to her to pay for a taxi home. During the course of these visits, A was given vodka and cocaine. On a number of occasions Hedar Ali himself had sexual intercourse with A. She was not capable of resisting or consenting because of the combination of alcohol and strong drugs that she had taken. 41. It is a striking feature of the appeals and applications before us that more than one of those involved had what might loosely be described as a relationship with A. That manifested itself in continuing contact after their arrest, including with the exchange of letters. To our minds, that merely illustrates how vulnerable this child was in becoming emotionally dependent on some of these abuses. It is not something that provides mitigation to any of the appellants/applicants. The Renewed Applications for leave to appeal against Conviction 42. Askar was interviewed by the police. His interviews were read to the jury as part of the prosecution case against him. As one would expect, and in accordance with well-established principles of law, the judge warned the jury at that time that the interviews formed part of the case against Askar but were irrelevant to the cases of the other defendants. The two applicants who were affected by the content of the interviews were Zaman and Ramzan. 43. In the course of his interview, Askar explained that when he arrived at the hotel and went to the room, he was confronted by a naked man and a naked girl. He said that they had obviously been drinking. There was a bottle of spirits in the room, which he described as "about a quarter gone". He said that no one was sober. The point he made was that no one sober would have behaved in such a way in front of (as he put it) his mates. 44. It was submitted on behalf of Ramzan that a fair trial was irredeemably compromised by the giving of that evidence in the course of the prosecution case following Askar's successful application to the judge at half time that there was no case for him to answer. The unfairness was founded upon the fact that the jury had heard the content of the interviews and compounded by the fact that, as a result of the judge-directed acquittal, Askar's potential veracity would have been enhanced in the eyes of the jury. 45. The judge rejected that submission on the basis that he had explained the status of the interview to the jury when it was read. At the invitation of counsel, he arranged for copies of the interviews to be removed immediately from the bundles. When rejecting the submission advanced on behalf of Ramzan by Mr Nadim, the judge indicated that he would remind the jury in the course of his summing-up that they should ignore that evidence. 46. In the course of his ruling, the judge said that he was prepared to proceed upon the basis that the description in the interview was adverse to the applicant's interest. The issue in the trial of the two applicants was consent. The concern which Mr Nadim expressed on behalf of Ramzan was to the effect that the references by Askar to the presence of drink and to behaviour that was influenced by drink might be relied upon by the jury in support of a conclusion that A was insensible, although that is not what Askar described. 47. As the single judge pointed out, the question whether this description was adverse to the applicant's interest was perhaps moot. Whilst Askar certainly suggested that others had been drinking, his account did not suggest that A was so drunk that she was incapable of giving consent. 48. Before us, the same submissions have been advanced eloquently by Mr Nadim on behalf of Ramzan. Mr A Khan, who appears today on behalf of Zaman, has supported those submissions. 49. It was submitted before the judge that, had Askar remained in the trial, he could have been asked when he gave evidence what he meant by the observations recorded in his interview and, to the extent that either of the applicants disagreed with his description of the drinking and the sexual activity which had gone on, could have been cross-examined. He might have been asked about how drunk A was. That assumes he would have given evidence. Had he chosen to give no evidence, as both Ramzan and Zaman did, these applicants would have faced a similar problem, if problem it be. 50. The application to discharge the jury was not supported at the time by Zaman. It was accepted that the passages in the interview to which objection is made, were not sufficiently prejudicial to warrant that course. We make no criticism of Mr Khan for seeking to associate Zaman with the application which was made. His short point is that if the trial became also unfair for Ramzan, then it became unfair for Zaman. 51. In refusing leave to appeal against conviction in Ramzan's case, the single judge noted that the jury were warned that Askar's interviews were evidence in his case alone. He noted that the judge was generous in proceeding on the basis that Askar's comments were not helpful in Ramzan's case. He continued: "Even adopting that approach, however, the judge was plainly entitled to take the view that, if appropriate steps were taken, your trial would still be fair. Clearly, appropriate steps were taken. The interviews were removed from the jury bundle and the jury were directed, both then and in summing up … to put them out of their minds. No more elaborate directions were required. …" The single judge added that he could see no prospect whatsoever of the full court being persuaded that the conviction was unsafe. 52. The reference to the summing-up was to this passage, where the judge said: "The interviews of Ataf Ali and Mohammed Askar. As I said to you earlier, you must put out of your minds what those two defendants said in interview. It is wholly irrelevant to the charges you will have to consider." We agree with the observations of the single judge. We also consider that the direction given in the summing-up was clear and adequate. It repeated something which had been said earlier in the trial. In our judgment, there is no possibility whatsoever that these convictions could be unsafe on account of what was said by Askar in interview. 53. In those circumstances, the renewed applications for leave to appeal against conviction are refused. The Appeals against Sentence 54. In sentencing the four appellants, the judge repeated the general remarks he had made when sentencing Butt and Mahmood a month earlier. He said that the psychological damage caused cumulatively to A was as bad as it could be. He recognised that the four appellants were not responsible for that overall damage, but he repeated that they had contributed to it and bore some responsibility for it. He noted that none of the appellants had the benefit of mitigation arising from remorse. The reality of the position was that this vulnerable and damaged child had been used as a serial sexual plaything by the four appellants and many others. 55. In Haider Ali's case, the judge concluded that the offence of sexual activity with a child fell within category 1, by reason of the vaginal penetration. There was grooming behaviour and the use of alcohol and drugs. The age disparity was substantial. A was obviously vulnerable. For those reasons, culpability was at level A. The circumstances of causing the other man to rape A were also such as to place the offending, in the judge's evaluation, into category 1A. He noted Haider Ali's domestic circumstances and that he had type 2 diabetes. Haider Ali had a previous relevant conviction for possessing extreme pornography with images involving animals. The sentences imposed on both counts were the starting points suggested in the guideline for offending at that level. 56. In Hedar Ali's case, the judge reminded himself that he had been convicted on two counts of rape (counts 9 and 11) and two counts of trafficking for sexual exploitation (counts 10 and 12). The judge summarised the facts that surrounded the conviction. He noted that Hedar Ali had taken A to the hotel for the purpose of having sexual intercourse with other men, as well as with him. The indictment reflected a specimen count covering six occasions of rape and one specific count. The judge considered that this was an example of gross abuse, given how well he (Hedar Ali) knew that A was vulnerable. Condoms were not used and ejaculation had taken place. His previous convictions included one for a sexual assault and one for harassment, which had resulted in a total sentence of three years' imprisonment. Sexual Offences Prevention Orders were made but breached on two occasions. The judge considered such convictions to be seriously aggravating features. 57. In Ramzan's case, the judge had to sentence for one count of rape (count 5). He noted the use of alcohol and cocaine. The judge considered that it was obvious to Ramzan that this child was vulnerable. Initially, A said to Ramzan that she did not want to sleep with him. It was then that he called his friends and continued to ask her for oral sex. She refused. In due course, when others were in the room, Ramzan raped her orally whilst others watched and filmed his actions. The judge accepted that the recording had since been deleted, but it was nonetheless an aggravating feature. Having raped her in the way described, Ramzan then left A in the company of a friend, knowing that something similar was about to take place. The judge accepted that Ramzan was not party to any grooming and that he did not threaten A and did not use force against her. The sentence of fifteen years' imprisonment which he imposed was the starting point in the guideline. 58. In Zaman's case, the judge had to sentence for two counts of rape (counts 7 and 8) and supplying drugs (count 6). He raped A orally and vaginally at a time when it was perfectly obvious that she was vulnerable and incapable of consenting. When he had finished, and with no feelings of concern, he simply left the hotel room and abondoned her. 59. So far as the guidelines were concerned, the drug offence fell within category 3 "lesser role", but the other offences fell within category 1, culpability A, for the reasons given by the judge in the other cases. There was a large disparity in age and in Zaman's case there was the use of alcohol and drugs on A. The judge considered it a further aggravation that Zaman had raped her after she had already been abused by Ramzan. 60. Zaman had previous convictions, but not for sexual offences. He had a series of convictions for violence and dishonesty at the lower end of the scale. The total sentence in his case was seventeen and a half years' imprisonment, seventeen years for the offences of rape and six months consecutive for the drugs offence. 61. The common ground of appeal advanced by each of the appellants centres on the judge's approach to harm. There is no doubt that the effect of the cumulative abuse suffered by A was exceptionally severe – indeed, quite devastating. The judge readily accepted that none of the appellants was individually responsible for all of that harm. But he took into account their contribution to the overall picture when he elevated the harm into category 1 and more generally for the purposes of sentencing. He did so in particular alongside A's extreme vulnerability. 62. On behalf of each appellant it is submitted that their individual, limited contribution to that harm should have resulted in the harm being located in category 2 for the purposes of the guideline. In addition, Ramzan and Hedar Ali have individual grounds, to which we will return. 63. The guideline breaks "harm" down into three categories. It identifies the following factors: "… • severe psychological or physical harm; • pregnancy or STI as a consequence of offence; • additional degradation/humiliation; • abduction; • prolonged detention/sustained incident; • violence or threats of violence beyond that which is inherent in the offence; • force/uninvited entry into victim's home; • victim is particularly vulnerable due to personal circumstances." If none of those features is present, the harm is treated as falling within category 3. If one or more is present, the harm generally falls within category 2. For the harm to fall within category 1, the guideline suggests: "The extreme nature of one or more category 2 factors or the extreme impact caused by a combination of category 2 factors may elevate to category 1." 64. In cases involving multiple offenders, it will rarely be possible to disaggregate the individual contributions made to the overall harm. In looking at the question of severe psychological harm for the purposes of this guideline, in our view, a judge is not required to try to disentangle the causative effect of each offender's contribution. 65. Before concluding for sentencing purposes that the harm crosses the threshold of "severe psychological harm", the judge must be satisfied that the conduct in question was a material or significant contributory cause of that severe harm. The judge in this case did just that. He cannot be faulted for his approach. He was careful to recognise that the appellants contributed to, but were not the sole cause of, A's lasting problems. He took that into account. But in our judgment, and as the judge indicated, the extreme vulnerability of A in the context of her being passed from pillar to post and used as a sex toy by these and other men was a potent factor in taking this offending into category 1A for sentencing purposes. 66. We are very far from persuaded that the judge's approach contained any error. The reality in this case is that the victim was exceptionally vulnerable and was used by these and other men because of that vulnerability. There was grooming behaviour and drink and drugs were often available. Extreme psychological harm was caused to the victim. Her vulnerability was undeniable and obvious. The overall circumstances of the offending transcend the imagination of most people. The judge was required to make an evaluative judgment about where the offending should be located for sentencing purposes. He cannot, in our judgment, be faulted for his conclusion. This point does not assist any of the appellants. 67. That being the only ground in Zaman's case, we dismiss his appeal. 68. Miss Hussain sought to raise a separate argument on behalf of Haider Ali namely that his overall sentence of twenty years' imprisonment was manifestly excessive on grounds of totality. We have treated this as a renewed application on a ground that was rejected by the single judge. 69. The offence of causing a person to engage in sexual activity without consent – in effect, coercing A to submit to rape – was exceptionally serious. When coupled with the other offending, the overall sentence, in our judgment, is not manifestly excessive. We dismiss Haider Ali's appeal. 70. We turn to the discrete points raised by Ramzan and Hedar Ali. As we have noted, on 20 th March 2012, Ramzan was sentenced to six years' imprisonment for serious drug offences. That offending had occurred between October 2010 and May 2011, and also in October 2011. In the course of his sentencing remarks, the judge mentioned what would have been an aggravating feature, namely, that he thought Ramzan had committed the material sexual offences whilst on licence from the six year sentence. The judge had, in fact, mistaken the chronology. Ramzan was not convicted of the drugs offences on his guilty pleas until after the events with which these appeals are concerned. Mr Nadim immediately corrected the judge and the judge immediately acknowledged that counsel was right to have corrected him. 71. Mr Nadim submits, albeit with little enthusiasm, that there is at least a risk that the judge failed to discount this factor from his calculation when he arrived at a sentence of fifteen years' imprisonment. We see no warrant for that conclusion in the sentencing remarks. In those circumstances, Ramzan's appeal against sentence is dismissed. 72. In granting leave to Hedar Ali, the single judge noted the additional aggravating feature of his recent sexual offending. But he gave leave to enable Hedar Ali to argue in respect of the two offences of trafficking within the UK for sexual exploitation (counts 10 and 12) that his culpability should have been regarded for the purposes of the guideline within category B and not category A. 73. We remind ourselves that Hedar Ali's overall sentence was one of 25 years' imprisonment, undoubtedly severe. As Mr Uttley recognised in his careful submissions to us this morning, the ultimate question is whether that sentence is manifestly excessive, given the overall offending. The rape counts included specimen counts. Thus, the judge had to sentence for seven identifiable instances of rape over nineteen days. The reality of the two counts of trafficking was that Hedar Ali provided A for the sexual use of others. The circumstances of this offending do not readily fit within the descriptions found in the guideline. For a category 1A offence, the starting point is eight years' custody, with a range of six to twelve years. For a category 1B offence, the starting point is six years' custody, with a category range of four to eight years. There is a significant overlap between the categories and the sentences. The sentences imposed on Hedar Ali fall at the top of category 1B and in the lower half of category 1A. 74. In his sentencing remarks, the judge said: "You took her to that hotel on a number of occasions, alcohol and drugs were taken, and knowing that [A], a young girl, was incapable of giving consent by reason of her intoxication, you raped her. You took her there knowing not only that you would have intercourse with her, but that others would, and indeed whilst incapacitated she had intercourse with other men. This was repeated on a further six occasions approximately; it was gross abuse. She was incapacitated by reason of drink and drugs, you knew it, and you knew how vulnerable she was. You only admitted having intercourse with her in evidence at the trial, because your semen was found in a pair of her knickers. It is apparent from that that no condom was used and there was ejaculation. There was an age difference of fifteen years. You have a previous conviction for sexual assault for which you received a three year sentence, and you have breached the Sexual Offences Prevention order on two occasions. I regard those convictions as aggravating features. So far as counts 9 and 11 are concerned, for the reasons given earlier, these offences clearly fall into category 1A. So far as counts 10 and 12 are concerned [that is the trafficking counts], these are clearly category 1 offences, because [A] was under the age of 18. I am not persuaded that they are category B offences so far as culpability is concerned. There is, as I say, the aggravating features of your previous convictions and the fact that you were on licence. There is also the use of drugs with alcohol to secure compliance. Those aggravating features, in my judgment, justify elevating these offences to category A." 75. In our judgment, the approach of the judge cannot be faulted. The sentences for each of the offences for which he had to sentence Hedar Ali were within the appropriate range available to him. Standing back, as we must, and looking at the question of totality, given the exceptional nature of his offending, we do not consider that the overall sentence of 25 years' imprisonment can be stigmatised as being manifestly excessive. 76. For all these reasons, Hedar Ali's appeal is dismissed. ______________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]

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supreme_court

C1/2006/1558 Neutral Citation Number: [2006] EWCA Civ 1560 IN THE SUPREME COURT OF JUDICATURE IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION (MR JUSTICE MITTING) Royal Courts of Justice Strand London, WC2 Wednesday, 1 st November 2006 B E F O R E: LORD JUSTICE RIX LORD JUSTICE MOSES - - - - - - - HER MAJESTY’S ATTORNEY GENERAL CLAIMANT/RESPONDENT - v - DOUGLAS DEFENDANT/APPELLANT - - - - - - - (DAR Transcript of WordWave International Limi

C1/2006/1558 Neutral Citation Number: [2006] EWCA Civ 1560 IN THE SUPREME COURT OF JUDICATURE IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION (MR JUSTICE MITTING) Royal Courts of Justice Strand London, WC2 Wednesday, 1 st November 2006 B E F O R E: LORD JUSTICE RIX LORD JUSTICE MOSES - - - - - - - HER MAJESTY’S ATTORNEY GENERAL CLAIMANT/RESPONDENT - v - DOUGLAS DEFENDANT/APPELLANT - - - - - - - (DAR Transcript 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) - - - - - - - THE APPELLANT APPEARED IN PERSON. THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED. - - - - - - - J U D G M E N T 1. LORD JUSTICE MOSES: This is an application for permission to appeal against an order pursuant to Section 42 of the Supreme Court Act 1981, made by the Divisional Court on 8 June 2006. It is, as will be apparent from a reading of that judgment and as has been made clear to us today, an extremely sad case. The defendant to the proceedings brought by the Attorney General under Section 42, Paula Douglas, is an intelligent, clearly-spoken, persuasive young woman who is a law graduate. She brings her appeal on two grounds. Firstly, that the decision to make the order on its merits failed properly to grapple with the underlying causes of the proceedings which the Divisional Court identified, and exhibited bias towards her. There was in short, she submits, no basis for reaching any conclusion that the previous proceedings that she had sought to bring, which from time to time she withdrew, were vexatious. 2. The second ground relates to the effect upon her of the order which the Divisional Court made and I will turn to that shortly in a moment. Maurice Kay LJ, in a full judgment, set out the history of the litigation. It is therefore, in my view, quite unnecessary to spend time setting it out all over again. If anyone wants to know the details of the proceedings on the basis of which the order was made, they have only to read that judgment. The significant aspect of the history, however, is that it fell within two phases, the first phase between September 1998 and December 2000 culminating in proceedings before the Divisional Court in July 2001. In those proceedings the Divisional Court, headed by Brooke LJ, made no order but adjourned the proceedings brought by the Attorney General for a year to see whether this applicant would make good her stated intention to desist from the vigorous litigious activity consisting of at least some 41 proceedings, which had led to the proceedings being brought against her in 2001. 3. It is plain that, given that opportunity, this applicant took advantage of it and did not bring proceedings during the year. Therefore, by the time of the second judgment, when no order was made, this applicant had, as Maurice Kay LJ, put in a clean bill of health. But the trouble was what happened thereafter. As she herself accepts, this applicant brought some further 28 proceedings. The Divisional Court records slightly fewer and it was on the basis of that renewal of litigious activity that the Attorney General returned to the court and the Divisional Court made the order that it did. 4. In my judgment, looking at that history of proceedings dating back, as it did, to grievances which she had against those with whom she had come into contact during her legal practice course, there was no alternative but to make the order that was made. 5. The order that was made was designed to protect courts up and down this country from being plagued with proceedings which this applicant sought to bring. What is important to realise is that the order made did not prevent justifiable proceedings being brought. As this applicant is well aware, it allows her to bring proceedings but only once they have been vetted by a judge. Thus, if she has a reasonable grievance which can properly be aired through proceedings in court, she will be allowed to bring them. Nothing that she has said in her voluminous written arguments, or in the oral arguments that she advanced today, in any way indicates that the Divisional Court was wrong to make the order that it did. Having been given one chance, which she took in 2001 to 2002, it would have been idle, in my judgment, of the Divisional Court to consider giving her another chance. When there is no threat of an order hanging over her, she has shown herself unable to resist the temptation to bring proceedings. 6. However, she argues, by way of a second argument, that the order interferes with her wish to pursue an active career as a lawyer, either in a different jurisdiction as a solicitor or the equivalent, or as a barrister. That she says has a particularly discriminatory and unfair impact upon her because she says she labours under difficulties of dyspraxia and dyslexia. Certainly, both in her written arguments and in her oral arguments, she exhibits no signs of being affected by those grievous disabilities. But it is important for us, in my judgment, to consider whether the effect upon her chosen career is such that some alternative order should have been made. 7. It is clearly right that any court considering making an order pursuant to section 42 should bear in mind the impact it will have upon the particular individual. It will plainly have a far greater impact upon someone who is qualified as a lawyer and seeks to pursue a legal career, should those who set the standards for such legal career learn that an order pursuant to section 42.1 has been made. That we accept and we have been given evidence, which again we accept from Miss Douglas, that she has laboured under great difficulty in pursuing a legal career as a result of the order made by the Divisional Court. This is not the place nor these the appropriate proceedings to consider the legality or lawfulness of the attitude of those bodies such as the Law Society, the Faculty of Advocates in Scotland and other similar bodies. The question for us of an application for appeal is whether that impact was such that the court should not have made the order it did. 8. It has to be recalled that the purpose of these orders is to protect the courts from having to deal with unjustified litigation, expensive as it is, not only in time and money but in filling the space that would otherwise be taken by more deserving litigants. Having regard to that purpose of protection, in my judgment it does not avail this applicant that it will have a particularly adverse effect upon her. The adverse effect is wholly understandable, but nevertheless it could not lead to this applicant escaping from the consequence of the vigorous litigation she has pursued time and again. 9. The final point I believe it necessary to deal with relates to an argument she has sought to advance which she says ought to lead to a reference to the European Court in Luxembourg. She says that making such an order, with the impact that it does have upon her livelihood, constitutes interference with her freedoms of association and movement enshrined in the European Union Treaty. It has to be recalled that this court, in a decision binding upon us, has already decided in a case called Ebert v The Official Receiver [2001] EWCA Civ 340 , [2002] 1 Weekly Law Reports 320 , that such an order does not infringe rights enshrined in the European Convention on Human Rights, still less any provision of the Human Rights Act 1998 . Such an order does inhibit access of Miss Douglas to the courts but the courts in every jurisdiction are entitled to protect themselves from the flurry of litigation as is evidenced in this case. We reiterate that which is well-known to this applicant, that there can be proceedings brought with leave of a judge. Moreover, the absence of any limitation of time can be rectified when and if the time comes for Miss Douglas to apply to the court to have the order removed, but I, for my part, am quite satisfied that the Divisional Court had no realistic alternative other than to make the order it did without limitation of time. 10. In those circumstances I would refuse this application. 11. LORD JUSTICE RIX: I agree. I agree that the Divisional Court had no realistic alternative to that of making the order that it did and that there is no realistic prospect of success such as might entitle this court to give Miss Douglas permission to appeal here from the order of the Divisional Court. I also agree with my Lord, Lord Justice Moses’s opening remarks that this is a sad case, and perhaps every case of a section 42 litigant is a sad one, but this case is perhaps particularly sad in that Miss Douglas is a lady of obvious charm and ability, if I may say so, as she has shown in her written and oral submissions. It is sad because, as my Lord has explained, Miss Douglas was given a chance by the Divisional Court in 2001 and she, in a sense, took that chance or half took it; half took it in the sense that once she had an order in her favour dismissing by consent the Attorney General’s earlier section 42 proceedings, she then fell back into her earlier ways of vexatious litigation. But it is also sad because Miss Douglas is not only a lady of ability, as I have said, but also one who had already graduated in a law degree before the whole series of events which has given rise to today’s hearings took place, and obviously would like to pursue a career in the law, and these matters present her with grave difficulties in pursuing that ambition. 12. I can only express the hope that, with the assistance of the restraint imposed upon her by the section 42 order which, as my Lord has explained, nevertheless permits her to go to the court at any time, as she has done, for permission to bring litigation if the court gives her leave, Miss Douglas will in due course find it possible to put her grievances, such as they may be, which have brought her to this position by causing her to issue prolific litigation, behind her to overcome her past vexatious litigation and enable her, with her abilities, to help other people rather than simply to concentrate upon her own woes. It is, as I have said, a sad case, but I hold out hopes for the future in that way. Order: Application refused.

2006_11_01-956.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/1560/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/1560

ff7ffd4aa01c9eb736627869caa78090be2bb601bb1cd2798589789a6f7450e7

[2018] EWCA Crim 547

EWCA_Crim_547

2018-03-20

crown_court

Case No: 2017/0306/B5 AND 2017/1190/B5 Neutral Citation Number: [2018] EWCA Crim 547 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BIRMINGHAM CROWN COURT HIS HONOUR JUDGE WALL T20151390; 20160337 Royal Courts of Justice Strand, London, WC2A 2LL Date: 20/03/2018 Before: LORD JUSTICE TREACY SIR DAVID CALVERT-SMITH and HER HONOUR JUDGE MUNRO QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Humza Ali Appellant - - - - - - -

Case No: 2017/0306/B5 AND 2017/1190/B5 Neutral Citation Number: [2018] EWCA Crim 547 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BIRMINGHAM CROWN COURT HIS HONOUR JUDGE WALL T20151390; 20160337 Royal Courts of Justice Strand, London, WC2A 2LL Date: 20/03/2018 Before: LORD JUSTICE TREACY SIR DAVID CALVERT-SMITH and HER HONOUR JUDGE MUNRO QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Humza Ali Appellant - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment. Copies of this transcript are available from: WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7414 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Ms Anne Whyte QC (instructed by Crown Prosecution Service ) for the Respondent Mr Paul Hynes QC and Ms Sultana Tafadar (instructed by Arora Lodhi Heath ) for the Appellant Hearing date: 27 th February 2018 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Treacy: 1. This matter comes before the court as an appeal against conviction and an application relating to sentence. The appellant was convicted on 15 December 2016 at Birmingham Crown Court of six offences. Count 1 involved engaging in the preparation of terrorist acts contrary to s.5 of the Terrorism Act 2006 . Counts 2-4 related to dissemination of a terrorist publication contrary to s.2(2) (d) of the Act . Counts 5 and 6 were offences of sending an electronic communication with intent to cause distress or anxiety contrary to s.1(1) (a) of the Malicious Communications Act 1988 . 2. For Count 1, the offender was sentenced to an extended determinate sentence of 13 years comprising a custodial element of 8 years and an extension period of 5 years. For Counts 2-4, concurrent terms of detention in a young offender institution for 3 years were imposed. On Counts 5 and 6 two consecutive sentences of 6 months’ detention of a young offender institution were imposed so that the overall term was an extended determinate sentence of 13 years plus a determinate sentence of 12 months’ detention in a young offender institution. It was also ordered that the appellant be subject to Counter-Terrorism notification requirements for 15 years. The appeal against conviction relates only to Counts 2-4 and is a single ground of many initially advanced on behalf of the appellant. Those other grounds were rejected by the single judge and have not been renewed. 3. The sole remaining ground asserts that the judge in summing up failed or failed adequately to read down (pursuant to s.3 of the Human Rights Act 1998 ) the s.2 dissemination offence, pursuant to R v Faraz [2012] EWCA Crim 2820 in order to prevent the engagement of Article 10 (Freedom of Expression) of the European Convention on Human Rights and Fundamental Freedoms. There is a secondary point raised asserting that the judge misdirected the jury in the way he dealt with the definition of a “terrorist publication” by reference to the potential audience. 4. The appellant’s submissions are that the judge should have directed the jury to read down s.2 as follows: a) “acts of terrorism” means “criminal offences” ( s.2(1) ); b) “with a view to” means “with intent to” ( s.2(2) (f)); c) “some or all” ( s.2(3) ) and “one or more” ( s2.(6) ) means “a significant proportion of those who read the publication”; d) “likely” means “probable” ( s.2(3) ); and e) “indirect encouragement” is in relation to publications the “necessary implication” of which is the encouragement of terrorism ( s.2(3) ). 5. Section 2 of the 2006 Act provides as follows: “Dissemination of terrorist publications” (1) A person commits an offence if he engages in conduct falling within sub section (2 ) and, at the time he does so— (a) he intends an effect of his conduct to be a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism ; (b) he intends an effect of his conduct to be the provision of assistance in the commission or preparation of such acts; or (c) he is reckless as to whether his conduct has an effect mentioned in paragraph (a) or (b). (2) For the purposes of this section a person engages in conduct falling within this subsection if he— (a) distributes or circulates a terrorist publication; (b) gives, sells or lends such a publication; (c) offers such a publication for sale or loan; (d) provides a service to others that enables them to obtain, read, listen to or look at such a publication, or to acquire it by means of a gift, sale or loan; (e) transmits the contents of such a publication electronically; or (f) has such a publication in his possession with a view to its becoming the subject of conduct falling within any of paragraphs (a) to (e). (3) For the purposes of this section a publication is a terrorist publication, in relation to conduct falling within sub section (2 ), if matter contained in it is likely — (a) to be understood, by some or all of the persons to whom it is or may become available as a consequence of that conduct, as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism; or (b) to be useful in the commission or preparation of such acts and to be understood, by some or all of those persons, as contained in the publication, or made available to them, wholly or mainly for the purpose of being so useful to them. (4) For the purposes of this section matter that is likely to be understood by a person as indirectly encouraging the commission or preparation of acts of terrorism includes any matter which— (a) glorifies the commission or preparation (whether in the past, in the future or generally) of such acts; and (b) is matter from which that person could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by him in existing circumstances. (5) For the purposes of this section the question whether a publication is a terrorist publication in relation to particular conduct must be determined— (a) as at the time of that conduct; and (b) having regard both to the contents of the publication as a whole and to the circumstances in which that conduct occurs. (6) In sub section (1 ) references to the effect of a person's conduct in relation to a terrorist publication include references to an effect of the publication on one or more persons to whom it is or may become available as a consequence of that conduct. (7) It is irrelevant for the purposes of this section whether anything mentioned in sub sections (1 ) to (4) is in relation to the commission, preparation or instigation of one or more particular acts of terrorism, of acts of terrorism of a particular description or of acts of terrorism generally. (8) For the purposes of this section it is also irrelevant, in relation to matter contained in any article whether any person— (a) is in fact encouraged or induced by that matter to commit, prepare or instigate acts of terrorism; or (b) in fact makes use of it in the commission or preparation of such acts. (9) In proceedings for an offence under this section against a person in respect of conduct to which subsection (10) applies, it is a defence for him to show— (a) that the matter by reference to which the publication in question was a terrorist publication neither expressed his views nor had his endorsement (whether by virtue of section 3 or otherwise); and (b) that it was clear, in all the circumstances of the conduct, that that matter did not express his views and (apart from the possibility of his having been given and failed to comply with a notice under sub section (3 ) of that section) did not have his endorsement. (10) This subsection applies to the conduct of a person to the extent that— (a) the publication to which his conduct related contained matter by reference to which it was a terrorist publication by virtue of sub section (3 )(a); and (b) that person is not proved to have engaged in that conduct with the intention specified in sub section (1 )(a). (11) A person guilty of an offence under this section shall be liable— (a) on conviction on indictment, to imprisonment for a term not exceeding 7 years or to a fine, or to both; (b) on summary conviction in England and Wales, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or to both; (c) on summary conviction in Scotland or Northern Ireland, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum, or to both. (12) In relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003 (c. 44), the reference in subsection (11)(b) to 12 months is to be read as a reference to 6 months. (13) In this section— • “lend” includes let on hire, and “loan” is to be construed accordingly; • “publication” means an article or record of any description that contains any of the following, or any combination of them - (a) matter to be read; (b) matter to be listened to; (c) matter to be looked at or watched.” We have emphasised the words above which the appellant contends should have been read down so as to protect the appellant’s Article 10 rights. 6. Before we turn to those grounds we set out briefly the facts of the case which were not in dispute. Between December 2013 and January 2015 the appellant had sought advice from a man named Alexander Nash, obtained a passport, attended a paintballing day, planned to travel to Amsterdam, and in fact travelled to Turkey via Scotland, Belfast and Dublin, all in preparation for joining Islamic State (IS), a proscribed organisation, in Syria. Those were the matters relied on in relation to Count 1. The appellant, who was born in September 1996, had been 17 at the outset of the offending but the judge was satisfied that his preparations had continued in the way described after he had attained his 18 th birthday. 7. The Crown’s case was that the appellant had become radicalised at the time he was leaving school and entering college. He had become fixated with the cause of IS and as a result took positive steps to advance its aims. He had initially planned to go to Syria to fight for IS and did so by consulting with Nash who himself was subsequently convicted of an offence contrary to s.5 of the 2006 Act . As part of the preparation he had met and trained with like-minded individuals on a paintballing trip in the UK. Thereafter, he made two attempts to get to Syria, the latter of which culminated in the refusal of entry at Istanbul airport by Turkish border security. Following those failures the appellant instead worked for the cause of IS in the UK and committed the offences set out in Counts 2-6. 8. He had tried to encourage others to act in support of IS. Counts 2-4 related to the dissemination of three videos supporting IS to a chat group called BOIS, consisting of himself, a co-accused, Zeb (who admitted three counts of dissemination of a terrorist publication and was sentenced to 21 months’ detention in a young offender institution), and a man called Ibrahim Sharif who was called as a witness for the prosecution. All of them had been students at a college in Birmingham. 9. In addition, Counts 5 and 6 reflected the appellant’s sending of messages to a local councillor designed to cause fear and distress. In May 2015 and April 2016 the appellant sent messages of an offensive and threatening nature because of the appellant’s objection to the councillor’s participation in the democratic process. 10. The appellant was of previous good character. The acts proved against him as set out above were not challenged. The issues at trial essentially concerned the appellant’s intentions. As to Count 1, he denied doing any of the relevant acts with the intention of preparing to travel in order to fight with or for IS. In relation to Counts 2 to 4 he said he had no intention for the videos to be an encouragement to terrorism and did not acknowledge that they were “terrorist publications” as defined by the Act . In relation to Counts 5 and 6 the issue was whether he intended to cause distress or anxiety and whether the messages were grossly offensive or threatening. 11. The videos in Counts 2 and 3 were ISIS propaganda videos with the audio and subtitles in Arabic showing prisoners confessing “sins” against IS prior to being executed. The executions are clearly shown. In the first video six men are decapitated with their severed heads being deposited on or by their bodies. In the second, a man is shot in the head. These videos were, the prosecution said, designed in part to encourage others to kill or harm the enemies of IS and to justify and glorify such acts. The third video was a recruitment video, said to be designed to glorify the death or martyrdom of a Canadian convert who had travelled to Syria to fight for IS and who was said to have been killed in battle. The Crown’s case was that fighting for IS and physically attacking or killing the enemies of IS are acts of terrorism requiring little elaboration. 12. The appellant’s defence to the s.2 offences was twofold. He denied that the videos were terrorist publications (that they were capable of encouraging acts of terrorism) and he denied having the necessary state of mind when sending them. He asserted that he was ignorant of the content of the videos in Counts 2 and 3. As to Count 4, he said that he had only watched the opening 2 minutes of an 11-minute video. He had thought that the video simply concerned Islam and the situation in Syria, and he had sent it in order to raise awareness. In convicting the appellant the jury must have been satisfied to the criminal standard that he had viewed each of the videos and was aware of what they contained. 13. The submission that the judge failed to direct the jury in relation to Counts 2 to 4 in a manner which protected his Article 10 rights is based on the decision of this court in R v Faraz . In that case this court rejected a challenge to the adequacy of directions given by Calvert-Smith J (as he then was) which had sought to protect that defendant’s Article 10 rights by defining the terms set out in bold in s.2 above in the way in which it is now contended the judge at the trial of the present matter should have done. That case was very different in context. It was a prosecution of a bookseller under s.2(2) (f). It involved different dissemination, different material and a different potential readership 14. We have considered the judgment in Faraz and are satisfied that, in dealing with that case and rejecting a submission that the judge’s summing up had not gone far enough to protect that defendant’s Article 10 rights, this court was not prescribing a form of words which was required to be used in every case. The decision on the ground in question was that the conviction was not unsafe because of the directions given to the jury. At no point did the court state that those directions should be employed in any other case. 15. At [54] the court said: “We are concerned only with the definition of the offence as it was left by the judge to the jury and with the terms in which he guided them as to their legitimate approach. We are satisfied that in the judge’s own words he defined the offence in a way which could not arguably offend the appellant’s Art. 10 right to freedom of expression. It was perfectly obvious to the jury that they could not convict the appellant merely because his publication expressed a religious or political view, controversial or not. We do not consider it arguable that a publication which to the knowledge of the appellant carried a real risk that it would be understood by a significant number of readers as encouraging the unlawful commission of terrorist offences (as defined by the judge) is entitled to exemption (in consequence of Art. 10) merely because it expressed political or religious views.” 16. Turning to the submission that the judge in the present case should have directed the jury that the expression of “acts of terrorism” should be interpreted as meaning “criminal offences” in a s.2 case in order to protect Article 10 rights, we begin by observing that the judge did not do this, despite being urged by the appellant’s counsel to do so. Terrorism is defined in s.1 of the 2000 Act and includes the use of threat or action which involves serious violence against a person or endangers another’s life where the use of threat is designed to influence a government or to intimidate the public and the use of threat is made for the purpose of advancing a political, religious or ideological cause. That definition is imported into the 2006 Act by s.20 . As can be seen, the definition involves broadly described types of activity carried out for certain specified purposes. In relation to Count 1 the judge had said: “…fighting for [IS] is a terrorist act as a matter of law…In this country, to fight for IS has been declared by Parliament to be an act of terrorism, and you must not go beyond that.” 17. The Article 10 right guaranteeing freedom of expression is not an absolute right, but is qualified by Article 10(2) which provides that “the exercise of the right may be subject to such restrictions 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”. It is in our view clearly a legitimate objective to criminalise conduct which intentionally or recklessly encourages others to commit acts of terrorism, including acts of violence on behalf of proscribed organisations. The terms of s.2 do not prevent a person such as the appellant from holding offensive views or personally supporting a terrorist cause or communicating the fact that he supports such a cause. What s.2 prohibits is the intentional or reckless dissemination of a terrorist publication where the effect of an offender’s conduct is a direct or indirect encouragement to the commission, preparation or instigation of acts of terrorism. The aim of s.2 is clearly lawful, proportionate and necessary, but we need to examine whether, in summing up, the judge did sufficient to protect the appellant’s rights of expression so that he was not in danger of being convicted for conduct which fell short of the statute and represented a legitimate exercise of his rights. 18. In summing up the judge made plain that the basis upon which the prosecution was put was that the videos were calls for others to take up arms in support of IS and that thus they were a call to commit acts of terrorism. This was repeated on a number of occasions and thus made clear that that is what was meant by “acts of terrorism”. In so doing, the judge was careful to spell out to the jury what would not come within the phrase “acts of terrorism”. Having stated the Crown’s suggestion that the videos were propaganda to encourage people to fight for IS, he continued: “It is not a crime to support ISIS. The crime is in doing something illegal to further their cause.” Later, he said: “Whether a video is likely to be understood by those who might see it as a result of the defendant’s conduct as direct or indirect encouragement of them to commit a terrorist act is for you to decide. The video must, however, encourage the commission, preparation, or instigation of a terrorist act or acts. Encouragement to agree with the aims of an organisation, or express or show agreement and support, is not sufficient. That is because passive support of those organisations without more is legal and not a terrorist act.” 19. The judge told the jury that terrorism meant the use or threat of action involving serious violence against the person or endangering life in a way which was designed to influence the government and was done for the purpose of advancing a political, religious or ideological cause. However, the judge had also stated: “…you should be aware that merely agreeing with the views of IS, or, conversely disbelieving in things such as Western democracy, are not crimes in our country. We are all free here to believe what we will, but what we are not free to do is to cross the line and commit crimes just because we hold those views. Your task, therefore, is not to decide what beliefs the defendant held, but whether holding the beliefs that he did he overstepped the permissible line and committed criminal acts.” 20. In those circumstances we are amply satisfied that the judge’s directions to the jury made plain to them what acts came within the definition of “acts of terrorism” and what did not. It was clear that “acts of terrorism” in this case referred to unlawfully fighting for IS, a proscribed organisation. It was equally clear that the jury could not convict the appellant merely because the videos expressed a religious or political view. 21. In any event we agree with the submissions made by Ms Whyte QC on behalf of the Crown that in relation to Counts 2 and 3, where the appellant claimed ignorance of the contents of the videos, it is hard to see how his Article 10 rights were engaged in respect of those videos. As to Count 4 where the appellant’s case was that he had only viewed the opening part of the video and thought that it concerned Islam and the situation in Syria, and that he had sent it in order to raise awareness, his Article 10 rights were potentially engaged. However, his factual defence in this respect was left to the jury and was rejected. 22. For these reasons, we are unpersuaded that there was, as asserted, a failure adequately to take account of the appellant’s Article 10 rights. None of the other points raised as to a reading down of s.2 has any force. “Likely” in s.2(3) is an ordinary, comprehensible word; replacing it with “probable” would not have assisted the jury further. “Indirect encouragement” in s.2(3) (a) does not, in our view, need to be replaced by “necessary implication”, a phrase which is arguably less clear. In directing the jury on this point the judge said: “Things which are likely to be understood by members of the public as indirectly encouraging them to commit, prepare, or instigate acts of terrorism are likely to include things which glorify the commission in the past, future, or generally of terrorist acts, and encourage that act to be copied. You decide whether that is what appears in these videos.” That explanation seems to us as being perfectly clear and adequate. 23. As to “some or all” in s.2(3) and “one or more” in s.2(6) we do not think that in the circumstances of this case where the dissemination had been to two individuals, that any further explanation was required. Finally, the suggestion that “with a view to” should have been explained as meaning “with intent to” overlooks both the fact that the suggested phrase provides no meaningful additional explanation and the fact that in any event, the Crown was relying on s.2(2) (d), not s.2(2) (f). 24. As to the subsidiary argument that the judge wrongly permitted the jury to consider the definition of “terrorist publication” by reference to a wider audience than the two men to whom he had distributed the videos, the Act requires a jury to consider the likely effect on some or all of those to whom a video may become available as a result of a person’s dissemination. Once the appellant had distributed the videos as he had, he had no control over onward dissemination by others, and it was clear that Sharif had made plain his desire to open up the BOIS group to others. We find no fault with the judge’s directions in this respect. Accordingly, the appeal against conviction must be dismissed. 25. We turn next to sentence. The grounds of appeal submit that the judge was in error in concluding that this appellant was a dangerous offender and further submit that the judge failed to identify the correct staring point for a custodial sentence, pursuant to R v Kahar and Others [2016] EWCA Crim 568 . It was also submitted that the sentence failed properly to reflect the features of the case and to take sufficient account of the appellant’s age at the start of the offending behaviour. It was said additionally that the judge failed to have regard to totality. 26. The judge’s sentencing remarks were careful and informed by the evidence he had heard at trial. As already stated, the judge was sure that the appellant had committed the last three identified acts of preparation for terrorism (paintballing and two attempts to travel to Syria) after he had turned 18. That did not mean that he was not alive to the offender’s relative youth; he was aged 20 at the time of sentence. That was a factor which the judge clearly and expressly bore in mind in assessing dangerousness and in deciding the custodial term. 27. The judge was satisfied that this offender was dangerous. He commented on the strength and depth of the appellant’s views and that his involvement had been over a protracted period. The judge’s assessment was that even in the light of the appellant’s current position he had shown, in giving evidence, that he still adhered to his extremist views. Whilst on the one hand the pre-sentence report had concluded that the appellant posed a substantial danger to members of the public, a report of a Mr Karmani had suggested that the appellant was open-minded and potentially prepared to change. The judge took full account of Mr Karmani’s report but said that he could not accept that the appellant was open to change in the way suggested, based on what he had seen and heard. It could not be an answer that the appellant no longer posed a risk because he was on the radar of the police and security services. Nor could reliance be placed on the fact that the appellant’s mother had confiscated his passport – he had still managed to go abroad after that had happened. 28. It is clear to us that the judge approached the question of a finding of dangerousness with care and we reject the submission that he can be criticised for his finding. It was one which was fully open to him in the circumstances of this case. As to the submission that this case should have fallen within Level 6 as identified in Kahar , we do not think that there is any credible argument. The appellant had done his level best to prepare for travel and to get to Syria in order to fight. This would squarely put him within Level 5 of Kahar , and the judge was entitled to have additional regard to the appellant’s continued activities in this country after he had failed to get to Syria. In the circumstances, where a concurrent term was imposed for Counts 2-4, the custodial term of 8 years is unassailable. For these reasons, we refuse the application in relation to sentence.

2018_03_20-4228.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/547/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/547

7c4eecbe845dbe1def4516c69fceb61d51111c7bc3f36f511286bafabea630e5

[2015] EWCA Crim 1515

EWCA_Crim_1515

2015-07-16

crown_court

No: 201302466 B4 Neutral Citation Number: [2015] EWCA Crim 1515 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday 16th July 2015 B e f o r e : VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION LADY JUSTICE HALLETT DBE MR JUSTICE JEREMY BAKER MR JUSTICE KNOWLES - - - - - - - - - - - - - - - - - - - - R E G I N A v KYRONE DALEY - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Li

No: 201302466 B4 Neutral Citation Number: [2015] EWCA Crim 1515 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday 16th July 2015 B e f o r e : VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION LADY JUSTICE HALLETT DBE MR JUSTICE JEREMY BAKER MR JUSTICE KNOWLES - - - - - - - - - - - - - - - - - - - - R E G I N A v KYRONE DALEY - - - - - - - - - - - - - - - - - - - - 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 Moloney QC & Mr K Missouri appeared on behalf of the Appellant Mr W Boyce QC & Miss K Robinson appeared on behalf of the Crown J U D G M E N T 1. THE VICE PRESIDENT: Introduction On 16th April 2013, at the Central Criminal Court before His Honour Judge Kramer QC, the appellant was convicted unanimously of the offence of murder. On 17th April 2013 he was sentenced to custody for life with a minimum term of 22 years. His co-accused, Sanchez Thomas, was also convicted of murder and sentenced to life imprisonment with a minimum term of 25 years. The appellant appeals against conviction by leave of the full court. An application for leave to appeal against sentence has been adjourned to this court. 2. Prosecution case 3. Amir Tufail is the younger brother of the deceased Umar Tufail. They lived with their mother at Wharncliffe Road, Thornton Heath. Amir knew the co-accused Sanchez Thomas and had allegedly stabbed him during an argument. 4. On Sunday 15th July 2012, at about 4.30 in the afternoon, Umar, who looked remarkably similar to his brother, had just arrived back home, having been to the shops. He had delivered his purchases and was sitting in his red Vauxhall Corsa outside his home. A second Vauxhall Corsa, grey in colour, drew alongside. It was driven by Thomas. The appellant was the front seat passenger. Thomas and the appellant were very close friends. A shot was fired through the open front passenger window of the grey Corsa. The bullet went straight into the side of the head of Umar Tufail. The emergency services attended and he was taken to hospital, where he died the following day. 5. Expert evidence provided limited assistance on whether the shooter was the front seat passenger or the driver. A senior forensic scientist confirmed the shot came from within the grey Corsa and from the area of the nearside front passenger seat, but she could not say in which seat the person firing had been sitting. A pathologist stated that the gun would have been at least a foot away from the victim. 6. Following the shooting, the appellant turned off both his mobile telephones and disposed of them, his clothing and his footwear to thwart the police investigation. He travelled with Thomas by taxi to the home of Kyle MacDonald, where they remained for two hours or so. He then travelled with Thomas to the home of his girlfriend, Natasha Henry. 7. On numerous occasions after the shooting the appellant telephoned and met up with Thomas. He also resigned from his employment at JD Sports and obtained and partially completed an application for a passport. 8. The prosecution alleged that the shooting was an execution, a deliberate shot fired at almost point blank range, carried out in furtherance of an ongoing dispute between two rival gangs. Whoever was the gunman both men in the car were fully involved in the criminal enterprise to shoot and kill Mr Tufail. 9. Defence case 10. Although the appellant answered no questions in interview following his arrest on 6th August 2012, he did give evidence at trial. He denied any knowledge of the gun or of Thomas' intention. He claimed that Thomas had agreed to give him a lift. As they got into the car, Thomas slid something under the seat and placed a bag in the front passenger foot well. There was no-one else in the car. The two men set off. On the way, they stopped for petrol and he paid £5 towards it. To his surprise, Thomas then drove off their route and down Wharncliffe Road. He drove slowly and said "I swear that's Rems' brother's car". He drew alongside the red Corsa and spoke to the driver. Thomas worked himself up into a rage and moved the car so they were virtually touching. The next thing he saw was Thomas holding something black, which he realised was a gun. He froze and Thomas shot Umar in the head. This was the first he was aware there was a loaded firearm in the car. Had he known there was a gun, he would have got out and walked away. He would not have informed the police but he would have distanced himself. Thereafter he did as Thomas told him to distance themselves from the shooting because he was scared of Thomas. 11. Thomas' defence was that there was a third person in the car called Pauser and that it was he who leant forward and fired the shot through the open passenger window. Unfortunately for Thomas' defence, CCTV footage of the grey Corsa and DNA evidence undermined this version of events. 12. Trial Judge’s Directions on the law 13. The trial judge invited submissions as to the law before closing speeches. He had drafted provisional directions entitled "Murder and Joint Enterprise" and a separate document entitled "Guidance on steps to verdict". The judge proposed two routes to verdict, one for the gunman and one for the companion. The jury could convict the gunman of murder if he pulled the trigger intending to kill or cause really serious bodily harm, and the jury could convict the companion of murder if he was in the car with the gunman knowing the gunman had a loaded gun, helped or encouraged the gunman to fire it and intended to kill or cause grievous bodily harm. 14. The prosecution persuaded the judge to leave a third route to verdict, referred to as the Smith route after the decision in R v Smith (Dean Martin) and others [2009] 1 Cr App R 36 . The judge directed the jury in the following terms: They could convict the companion of murder if satisfied that he had (i) voluntarily joined or remained with the gunman; (ii) knowing that the gunman was armed with an illegal and loaded gun; iii) assisted or encouraged him to commit an offence other than murder, in this case the unlawful possession of a firearm and ammunition; and (iv) while doing so knew there was a realistic possibility that he, the gunman, might commit murder by firing the gun. The judge then expressly directed the jury that there must be knowing participation of some sort in what was expressly or tacitly agreed as joint enterprise, so that if the companion did not know the gunman was armed that person would be not guilty of murder. 15. Mr Moloney QC on behalf of the appellant, has argued three grounds in detail and mentioned a fourth in passing during today’s hearing. 16. Grounds 1 and 2 17. Grounds 1 and 2 were very much intertwined. Mr Moloney believes there is a very strong case that the jury must have chosen the third route to verdict and therefore convicted the appellant on the basis of ‘parasitic accessory liability’ and has focussed almost entirely upon it. He observed that the jury retired to consider their verdicts at 14.59 on 15th April 2013. At 15.34 on 16th April 2013 they retired to continue their deliberations after being given the answer to this question: i. "We seek clarification regarding route 3, 6(1). Does the question ask whether the companion assisted or encouraged the gunman to OBTAIN or possess the gun, i.e. did he help provide the murder weapon in the first place OR does the question ask whether the companion assisted or encouraged the gunman whilst they were in possession of the gun, i.e. they had the murder weapon already and was assisted in some way by a companion." 18. At the time no-one picked up on the jury's terminology. The judge understood the question to be focused on the point in time at which route 3 to verdict might be triggered. He believed the jury wanted to know whether they should focus on the issue of the companion’s role in obtaining the gun or his role in the car after the gun had been obtained. 19. The judge repeated his directions in full. He informed the jury that the second of the two alternatives they had posed in their question was the correct one for route 3. He directed them to focus on the time when the appellant and Thomas were in the car. 20. Mr Moloney, with the benefit of further reflection, now argues that the jury's question indicates confusion in the jury's mind as to route 3 to verdict, and claims the judge's answer to the question did nothing to resolve that confusion. The confusion, he says, is highly significant because of the timing of the question. If they followed the judge’s directions, the jury should only have considered route 3 if they were not convinced of the appellant's guilt under the first two routes. About half an hour after receiving the judge’s answer the jury returned their verdicts. This means they must have chosen the third route: parasitic accessory liability. 21. We spent some time during the course of oral submissions, and counsel spent some time in preparing their written submissions in addressing that issue. Here it was said that the crime of murder, crime B, flows from the joint commission of crime A, the possession of an illegal firearm and illegal ammunition. Mr Moloney advanced what he conceded was a novel proposition, namely that an offence of ‘Possession’ (be it drugs, firearms etc.) is unique because it is based on custody and control. If the Crown wished to found their case upon secondary accessory liability, it was not enough to prove that a defendant had assisted or encouraged the principal in possession of the gun, the prosecution had to go a stage further. They had to prove either that the defendant was a joint principal or that the defendant was an accessory and both the principal and he were in possession of the gun as part of a common purpose going beyond mere possession, for example, joint possession of the gun as part of a common plan to commit a robbery or to threaten. 22. Further, he insists, that the judge gave no guidance to the jury on how to determine whether an offence of joint possession has been committed. He complains that neither the concept of possession, let alone joint possession, was explained to the jury. The judge directed the jury that assistance or encouragement to the gunman to possess the gun was enough. Mr Moloney argued that was wrong in law. 23. On the directions given, Mr Moloney suggested it would be entirely possible that the jury equated assisting or encouraging the gunman in his possession with joint possession as a principal. Accordingly the appellant might have been convicted on the basis of his failure to denounce the possession, as opposed to his knowing participation in a crime. He postulated that the jury might have reached the conclusion that by remaining in the car, once he knew of the presence of the gun, and perhaps by saying, "It's your car, it's up to you", the appellant was thereby offering assistance or encouragement to Thomas in the possession of the gun. If so he was guilty of joint possession and became vulnerable to a conviction for murder. 24. Accordingly, he argued that the judge's directions were deficient in a number of respects. The jury should have been instructed: 25. That knowledge alone was not enough to establish joint possession. He referred us to the decisions in Searle [1971] Crim LR 592 and Montague [2013] EWCA Crim 1781 , where the court provided examples of what level of participation might be required for the offence of joint possession. 26. That presence, even with knowledge, is not enough to establish possession. (See Jacobs [2002] EWCA Crim 610 ). 27. That the passenger would be under no legal duty to get out of the car in circumstances where he was aware of the presence of the gun ( Jacobs). 28. That any assistance or encouragement had to be intentional. He relied upon a passage in Lord Kerr's dissenting judgment in Gnango [2012] 1 AC 827 , which he described as uncontroversial: i. "... for parasitic accessory liability to arise, Gnango and B would have to have a common intention to commit an affray, if affray is the crime on which Gnango and B are to be said to have jointly embarked. Whether or not a common intention is required for a joint offence of affray, it is most certainly required for parasitic accessory liability ... The essence of parasitic accessory liability is that there is a common purpose , and in the course of furthering that common purpose , the principle goes beyond what was agreed but the secondary participant foresaw the possibility of this occurring. The sine qua non of parasitic accessory liability, therefore, is the existence of a common purpose". 29. We have added emphasis to the words common purpose because Mr Moloney relied upon them, claiming that there must be a common purpose over and above mere possession of the firearm which the Crown has here failed to establish. 30. Mr Moloney also took exception to the examples that the judge gave the jury on what might constitute participation by the companion, for example keeping a look-out, preventing people leaving or intervening, and being present encouraging and ready to join in as and when required. Such examples may be relevant to the standard direction on joint enterprise but Mr Moloney would have preferred the judge to choose examples ‘better tailored’ to the facts of this case. 31. He claimed that at most the jury may have found the appellant guilty of possession of a firearm on "a legitimate journey with no target or additional crime in mind" and this is insufficient in itself to found a conviction for murder. He relied on another passage from Gnango . Lord Phillips, President of the Supreme Court, and Lord Judge CJ observed at paragraph 41: i. "We would consider it undesirable, however, if a practice developed of relying on the doctrine of parasitic accessory liability to charge with murder parties to an affray who had not themselves intended that it would result in serious injury." 32. Mr Moloney submitted it must be undesirable to extend parasitic accessory liability to the facts of this case and convict a man of murder who did not intend to commit any crime, let alone one of violence, beyond the joint possession of a firearm. Even in what he called the “foundational case of parasitic accessory liability”, Chan Wing-Siu [1985] AC 168 , the Privy Council did not envisage the doctrine being extended that far. At 177D-E Sir Robin Cooke observed: i. "Where a man lends himself to a criminal enterprise knowing that potentially murderous weapons are to be carried, and in the event they are in fact used by his partner with an intent sufficient for murder, he should not escape the consequences ..." 33. Mr Moloney interpreted those remarks to mean that they were limited to criminal enterprises such as robbery undertaken whilst carrying dangerous weapons, not criminal enterprises whose beginning and end was the possession of the weapon. Expanding the doctrine of parasitic accessory liability to include this appellant in this case would, he argued, cause enormous injustice and real public concern. 34. Ground 3 35. This ground was based on what is said to be a factual misdirection by the judge. In his summing-up the judge reminded the jury that the appellant had said that had he known of the presence of the firearm, he probably would not have told the police and he probably would not have got out of the car. This was based on the following passage from Mr Boyce’s cross-examination of the appellant: 36. Q: "Would you have got out, gone to a police station [to report]?". 37. A: "Probably not no". 38. In re-examination, the following questions and answers were recorded: a. Q. And you were asked if you would have reported Sanchez's comments to the police if you had found the firearm and you said no? b. A: Yes, that's correct. c. Q: Would you have done anything? d. A: I would have got him [sic] out of the car and I would've left him. I would've distanced myself from him." 39. Both Mr Boyce and Mr Moloney, for perfectly understandable reasons, misremembered Mr Boyce's entire question. They believed he had restricted his question to the one: ‘Would you have reported the gun to the police?’ Mr Moloney was, therefore, concerned about the way in which the judge left this evidence to the jury. He informed the judge that the appellant had said in cross-examination that he probably would not have told the police about the gun. He insisted, supported by Mr Boyce, that the appellant had not been asked about getting out of the car. 40. The judge then called the jury back in, as he thought, to correct the misdirection. He told the jury that in cross-examination the appellant had said that he knew about the gun, he probably would not have got out of the car and he probably would not have told the police, and in re-examination he had said he would have got out of the car. 41. Mr Moloney was not satisfied. He again invited the judge to amend the direction because he considered it to be important to the issues in route 3. The judge refused to do so because he felt the difference between what Mr Moloney was asking him to do and what he had already done was insignificant and the summary that he had given reflected his note of the evidence. 42. Mr Moloney maintains that this was a misdirection of fact which is highly significant: it had central relevance to the issue of whether the appellant was in joint possession of the firearm. The jury were incorrectly told that the appellant would have willingly travelled in a vehicle that contained a loaded firearm when his evidence was that he would have got out of the car. The jury may have noticed an inconsistency on a highly material matter; an inconsistency that they may have taken as a lie. Consistency is an important feature of credibility and the judge undermined the appellant’s consistency and therefore credibility on a false basis. 43. Ground 4 44. Somewhat belatedly, Mr Moloney sought leave to add an additional ground of appeal, namely that where “encouragement to a joint enterprise” is alleged, the judge should direct the jury not to convict unless they are sure that the defence knew the use of a fatal weapon was a “real probability”. He acknowledged that he had no arguments to advance under the present state of the law and he did not seek to develop this ground in his oral submissions. He wished "to preserve the position of the appellant whilst awaiting the decision of the Supreme Court in Jogee ". For those who are unaware, the Supreme Court will be considering an appeal in which the issue of the appropriate scope of the doctrine of joint enterprise may arise for determination. 45. Conclusion 46. We are indebted to Mr Moloney and Mr Missouri for their submissions, and to Mr Boyce and to Miss Robinson for their very full response. We do not need to refer in detail to the latter, but it was of great assistance. 47. Our conclusions can be summarised as follows: (i) The judge's directions on the law were sufficient. (ii) This was an appropriate case in which to leave open to the jury a verdict on the basis of parasitic accessory liability. (iii) Any misdirection, if there was one, on the facts was not significant in the overall context of the summing-up. (iv) Ground 4 is simply not arguable on the present state of the law. 48. Grounds 1 and 2 49. We are concerned only with the judge’s directions on the third route to verdict, parasitic accessory liability. We were not persuaded that route 3 was necessarily the route chosen by the jury but for the purposes of the appeal against conviction, we are prepared to accept that it may have been. 50. In our view, the judge’s directions on route 3 cannot be criticised. The judge left the route to them expressly on the basis that the companion knew the gunman was armed with an illegal loaded firearm and foresaw that he might use it to kill with murderous intent; nevertheless, he remained with the gunman and he encouraged him in its possession; the gun was then used to murder. Such a direction is in line with the relevant definitions of parasitic accessory liability in Gnango and its formulation follows Smith (Dean Martin) . 51. It is true that the judge did not specifically and in one sentence direct the jury that mere knowledge of the existence of the firearm was not on its own sufficient to establish joint possession, that the companion was under no legal duty to get out of the car, and that encouragement had to be intentional, in the way that Mr Moloney now wishes. It is also true that he did not separate out the concept of ‘possession’ and ‘joint possession’. But what he did do was set out in clear terms the elements of the offence and the findings of fact the jury must make to convict the companion. His directions, taken as a whole, were clear: the elements were cumulative and ‘passive participation’ namely knowledge of the existence of a firearm and voluntary presence would be insufficient to support a guilty verdict. 52. The examples the judge gave of what might properly amount to assistance or encouragement were pertinent because they were ways in which Mr Boyce had argued the appellant may have helped the gunman. The appellant may have been there as a look out so that it was no coincidence that the shooting occurred in broad daylight on a residential street at a time when there were no witnesses. We are satisfied the judge did tailor his directions and his examples to fit the facts of the case. 53. As far as the jury's question is concerned, we are not persuaded that it indicates any confusion. The use of the word "they" may have been referring to an individual and the use of the word "possession", as Mr Moloney appeared to concede, may well have been used loosely. We believe the judge was correct in his interpretation of the question. The jury wanted to know whether they should focus on the obtaining of the gun or on what happened in the car when considering route 3. The judge's answer was clear: the relevant time was when the two men were in the car and the weapon was in the car. 54. In any event, as Mr Boyce observed, there was ample evidence that the appellant had embarked upon a joint venture of possession of the loaded firearm and knowingly and voluntarily aligned himself with the gunman. He had a close and long-standing friendship with Thomas, he got into the car at the same time as Thomas placed the firearm and the ammunition into it, he knew there was a feud with Amir and that Thomas desired revenge, he and Thomas tracked the route taken by the victim for several miles, going out of their way to do so, they arrived on the same street within a matter of seconds or minutes of the victim and they ensured that the murder scene was free from potential witnesses. The appellant continued to associate with Thomas after he had witnessed, at close quarters, a cold blooded execution and they both then went to some lengths to cover their tracks. Finally, he told a large number of significant lies, including lies in relation to a memory card associated with his telephone, upon which there were images of a hand pointing a gun at someone's head. 55. In truth Mr Moloney’s complaint is not so much about the judge’s directions but about the very existence of parasitic accessory liability and its extension to cases involving possession of weapons. We reject the argument that ‘possession’ is a unique offence so that to found parasitic accessory liability the prosecution must go further and establish that both the gunman and the companion are joint principals in a criminal enterprise and or involved in a criminal enterprise above and beyond that of possession of the gun. There is no support for this novel proposition, either in the authorities or in logic. The examples given in Searle were merely examples of how, on the facts of that case, those involved might be said to be in joint possession of drugs. Montague is a very different case, as Mr Boyce pointed out, because the offence itself required not only possession of articles, but possession of articles with intent to use them to further fraud. 56. Further we reject the assertion that the principle of parasitic accessory liability should not be applied to cases involving possession of deadly weapons. Far from extending the principle too far, as it seems to us, this is exactly the kind of offence to which the principle (as long as it exists) should be applied. On the jury’s verdict the appellant lent himself to a criminal enterprise knowing a lethal weapon was to be carried and foreseeing it might be used to murder, as it was, and in his presence. 57. Whether or not the individual members of the court would have chosen to add a third route to verdict, of one thing we have no doubt, and that is that the judge was entitled to leave it on these facts. The significant feature of this case is that it involves a loaded gun. It should be remembered that the jury has rejected the appellant's case that he first knew of the gun when it was taken out and fired. They were satisfied that he was involved in a joint enterprise to shoot, or at the very least that he was involved in a joint enterprise to possess a loaded and unlawful firearm which was used to murder just as he had foreseen it might be. This was not some separate frolic of Thomas' own. The killing was very much linked to the crime of possession. There was here proved a joint unlawful venture from which the murder flowed. If, as Mr Moloney claims, (but about which we have our doubts) the prosecution could not prove that the victim of the murder or the time and place of the shooting had been identified, it would not undermine the appellant’s parasitic accessory liability. This appellant is in a very different position from those postulated by Mr Moloney who are either entirely innocent or have involved themselves in some low level criminal enterprise that they could never have foreseen would lead to murder. 58. Ground 3 59. In respect of the third ground, again we have our doubts as to whether or not there was an error in the direction. If there was, we note that when Mr Moloney first raised it, he considered it to be “a very small matter”, and it was only as his submissions developed that its importance seemed to grow. Further and most importantly, the judge summed up accurately the rest of the appellant's evidence on his knowledge of the existence of the firearm and what he would have done had he known of its existence elsewhere in the summing up. The judge reminded the jury that had he known of the firearm, the appellant claimed he would have left Thomas immediately. The part of the summing-up to which objection is taken must not be read in isolation but in the context of the summing up as a whole. 60. If there was an error, therefore, it was neither significant, nor material. It certainly does not undermine the safety of the conviction. 61. Ground 4 62. The present state of the law is clear: the prosecution do not have to prove the encourager knew that the use of a lethal weapon was a real probability. We refuse leave. 63. For all those reasons, the appeal against conviction is dismissed. 64. (Submissions followed on sentence) 65. Ground of Appeal against sentence 66. THE VICE PRESIDENT: We now turn to the application for leave to appeal against sentence. 67. The appellant is now 21. In 2009 he was cautioned for offences of criminal damage and assault. In 2010 he received a referral order for a public order offence. 68. The ground of appeal, as advanced by Mr Moloney in writing, is that the judge sentenced the appellant on the basis that he was culpable by way of route 2, rather than route 3. This interpretation, Mr Moloney argued, was at clear odds with that of the jury. Mr Moloney submitted that there could be no doubt that the jury must have convicted of route 3, in which case he was convicted on the basis he was in joint possession of the firearm with Thomas and foresee a possibility that Thomas might use the firearm with intent to kill during the journey. The judge was bound to honour that factual finding in sentence and, had he done so, he would have significantly reduced the culpability of the appellant and this would have resulted in a substantial reduction in sentence. He reminded us of the decision in Cairns [2013] EWCA Crim 467 , in which the court re-stated the recognised principle that a judge must honour the verdict of a jury after trial. 69. Conclusion on sentence 70. We considered those submissions before coming into court and Mr Moloney has not put anything further before us this afternoon. This is not a case where the jury has clearly followed one less culpable route. In any event, the evidence showed that this appellant lent himself to a criminal enterprise knowing that a potentially murderous weapon was to be carried, foresaw it might be used with intent to kill or cause grievous bodily harm and, far from disassociating himself, stayed with the gunman, even as the gunman became angrier and angrier, and encouraged the gunman in possession of the gun. He was involved in a gangland execution. The consequences for those who become involved in this kind of offence are severe. As young as this appellant was, we are satisfied that there is no arguable basis for concluding that the sentence imposed upon him of custody for life with a minimum term of 22 years was in any way excessive. Therefore the application for leave to appeal against sentence is also refused.

2015_07_16-3639.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/1515/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/1515

bd5dc5f69d63f9d2f9a173330137f2e4e675b9a43195fc4b34c75c77db95ec79

[2006] EWCA Crim 362

EWCA_Crim_362

2006-02-14

crown_court

Case No: 2006/0158/A9 Neutral Citation Number: [2006] EWCA Crim 362 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Tuesday, 14 February 2006 B E F O R E: LORD JUSTICE KEENE MR JUSTICE STANLEY BURNTON MR JUSTICE SIMON - - - - - - - R E G I N A -v- PAUL GREGORY - - - - - - - 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 Wr

Case No: 2006/0158/A9 Neutral Citation Number: [2006] EWCA Crim 362 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Tuesday, 14 February 2006 B E F O R E: LORD JUSTICE KEENE MR JUSTICE STANLEY BURNTON MR JUSTICE SIMON - - - - - - - R E G I N A -v- PAUL GREGORY - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR S WILD appeared on behalf of the APPELLANT - - - - - - - J U D G M E N T 1. MR JUSTICE STANLEY BURNTON: On 8th December 2005 at Manchester Crown Court, Minshull Street, the appellant pleaded guilty on rearraignment to three counts of racially aggravated threatening behaviour. He was sentenced by His Honour Judge Lakin to nine months' imprisonment on each count concurrent and in respect of his breach of a conditional discharge he was also sentenced in that case to two months' imprisonment concurrent. The total sentence was therefore one of nine months' imprisonment. That was ordered to be served consecutively to a sentence of seven months' imprisonment which had been imposed on 22nd September 2005 for offences committed against the same complainant. Mr Gregory, who is aged 50, appeals against sentence by leave of the single judge. 2. The object of the racially aggravated threatening behaviour in question was a family of neighbours of the appellant. Mr Taj lived in Pitt Street, Oldham, with his wife and two children and had lived there for some 24 years. The appellant was a neighbour and the two houses overlooked each other. 3. There were no problems between them for some 20 years but in March 2005 the appellant used an axe to cause damage and assaulted Mr Taj. On 30th August 2005 at the Crown Court at Manchester, Minshull Street, for two offences of racially aggravated criminal damage, one of possessing an offensive weapon and one of common assault, the appellant was sentenced to 12 months' imprisonment. On 22nd September 2005 that sentence was varied to seven months' imprisonment. 4. Whilst the appellant was on bail for those offences he committed the index offences. On three occasions in May 2005 the appellant shouted racist abuse at Mr Taj as he left his home. The Crown's case was that whilst the offences were not of the utmost gravity, they had to be seen in the context of the appellant's previous convictions in general and by reference to the offending against Mr Taj in March 2005. 5. On 8th May 2005, as Mr Taj left his home, the appellant was in his garden. The appellant shouted things such as "Paki bastard, fucking stupid Paki" and stuck up two fingers to Mr Taj. Mr Taj did not respond to the abuse and he carried on his way. He heard the appellant continuing to swear and shout. That episode was the subject of count 1 on the indictment. 6. On 24th May 2005, as Mr Taj left his home, the appellant shouted several times "You fucking Paki bastard". On 29th May 2005 Mr Taj was leaving home whilst talking to his wife. Again the appellant shouted "Paki bastard" and put up two fingers. 7. The appellant was arrested on 3rd and 6th June 2005. When interviewed he denied the offences. In his statement Mr Taj explained that in the light of these offences, and the more serious offences in March, he viewed the offences as a form of harassment against him and his family, which caused fear for their safety. In particular he said that his daughter feared leaving the house. 8. In sentencing the appellant, the judge described him, accurately in view of the incidents which formed the subject of the indictment on which he had previously been convicted, as a racist. He had on a number of occasions hurled abuse at Mr Taj. The offences were aggravated because they occurred whilst he was on bail for other racially aggravated offence and whilst he was subject to a conditional discharge for a racially aggravated offence. Only a custodial sentence could be justified. 9. In considering what the proper sentence for these offences was, we of course accept that they were serious offences, being racially aggravated, and they clearly passed the custody threshold. They were, however, offences which did not involve any use of violence, unlike the previous offence to which the judge referred, and they had been committed before the sentence in the previous offence and could well have been dealt with at the same time. Had they been dealt with at the same time we consider that they would have resulted in an addition of two or three months to the sentence which had been passed on the previous occasion. 10. Approaching the matter in that way, it seems to us that the sentence passed in this case, notwithstanding the racial element, was manifestly excessive. The appropriate sentence in the circumstances of this case was one of three months' imprisonment consecutive to the existing sentence. In the circumstances this appeal is successful to the extent indicated and the sentence passed by the judge will be quashed and a sentence of three months' imprisonment will be substituted.

2006_02_14-717.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/362/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/362

101c091acfba37b0f950b82bd7b19ac28513daf310f808c7796d1b2d4b7af57b

[2008] EWCA Crim 1480

EWCA_Crim_1480

2008-06-06

crown_court

No: 2008/01389/A2 Neutral Citation Number: [2008] EWCA Crim 1480 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 6th June 2008 B E F O R E: LORD JUSTICE SCOTT BAKER MR JUSTICE BURNETT HIS HONOUR JUDGE ROBERTS QC ( sitting as a judge of the Court of Appeal, Criminal Division ) - - - - - - - - - - - - - - R E G I N A -v- STEVEN SIBULA - - - - - - - - - - - - - - Computer Aided Transcript of the Palantype Notes of Wordwave International Limited A Merrill

No: 2008/01389/A2 Neutral Citation Number: [2008] EWCA Crim 1480 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 6th June 2008 B E F O R E: LORD JUSTICE SCOTT BAKER MR JUSTICE BURNETT HIS HONOUR JUDGE ROBERTS QC ( sitting as a judge of the Court of Appeal, Criminal Division ) - - - - - - - - - - - - - - R E G I N A -v- STEVEN SIBULA - - - - - - - - - - - - - - Computer Aided Transcript of the Palantype Notes of Wordwave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - Mr J Janes appeared on behalf of the Appellant - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE SCOTT BAKER: Steven John Sibula is aged 31. On 18th January 2008 in the Crown Court at Nottingham, he pleaded guilty to administering a poison or noxious substance with intent. On 8th February 2008 Judge Teare sentenced him to 3 years' imprisonment, with a direction that the 105 days spent on remand should count towards his sentence. 2. He appeals against his sentence with the leave of Silber J, who granted an extension of time of three days. 3. The facts of the case can be quite shortly stated and they are these. Shortly before the close of business on 30th November 2004, Ms Mann, who was a customer adviser at a branch of the NatWest Bank in Nottingham, was asked by one of her colleagues if she could speak to the appellant, who had asked for some financial advice. Ms Mann invited the appellant into her office at the rear of the bank, and she took him through the process of financial advice as he informed her that he had some £5,000 he wished to invest. He appeared articulate and well spoken and the interview was progressing quite normally, although she noted, with hindsight, that some of his answers had been rather short. 4. As the interview was coming to an end, Ms Mann was momentarily distracted. Whilst she dealt with some papers, the appellant produced a bottle and sprayed fluid on to her face and clothes. The fluid smelt of lighter fuel and she was not surprisingly absolutely terrified. The appellant then held up a cigarette lighter and told her to, "Stop screaming, sit down and shut up", and that if she was not quiet he would burn her. Ms Mann decided to run past him out of the room and did so, screaming for help as she did. 5. One of her colleagues intercepted the appellant in order to give Ms Mann the opportunity of getting away. He noticed that the appellant's eyes seemed to have a vacant expression and also there was a strong smell of petrol. He retreated from the appellant, together with other members of the staff, to a more secure area of the bank. They were able to get behind a secure door and contact the police. The appellant remained in the bank for a while before leaving. The staff were able to leave the bank safely. 6. The appellant's fingerprints were found at the scene, but he himself was not traced until he was arrested in 2007. When interviewed, he claimed it must have been his twin brother who had committed the offence. 7. The appellant is a man of previous good character, save for one motoring matter. He had apparently fled from Zimbabwe and was an asylum seeker in this country. As far as we understand it, his claim for asylum remains unresolved at the present time. 8. The court had a pre-sentence report from a Mr White, a probation officer in Leeds. He drew attention to the fact that what was particularly disturbing about the offence was the apparent randomness of the appellant's actions. He attacked the victim for no apparent reason. 9. The appellant claimed that there had been no pre-planning, yet he was carrying the fuel and lighter. The reason that he gave for that was that he was going to attend a barbecue. That was unconvincing bearing in mind the time of year, namely November. He could not give any reason for why he behaved as he did, other than to say that it was a cry for help and that alcohol had acted as a disinhibitor on his behaviour. But there was no evidence apparent to the bank employees that he had been drinking, at any rate significantly. 10. The appellant claimed to be deeply sorry for what he had done and that he had considered going back to the bank and apologising, but did not feel brave enough to do so. It is to be noted that despite his protestations of remorse, he did not hand himself in to the police. He claimed to be depressed due to a build-up of problems. He was living with a partner and child in privately-rented accommodation in east Leeds. He claimed also to have a fiancée and a son born in 1999 in Africa, but to have no knowledge of their whereabouts. He also told the probation officer that he was heavily involved with a community group. 11. The assessment of the probation officer was that the randomness and the extreme behaviour raised concerns about the appellant's state of mind whilst under stress. On the other hand, this appeared to be an isolated incident and there was no evidence of any further offences during the 3 years that he had been at large since 2007. 12. In passing sentence the judge said that he was confident that it was not a cry for help, nor was the offence brought on by the consumption of excess alcohol. Nor was he persuaded the offence was unpremeditated. He found it difficult to accept that the appellant was remorseful, bearing in mind what he had been doing over the 3 years and that he told the police lies when first questioned about the offence. He made no recommendation for deportation, leaving it to the immigration authorities to decide what action was appropriate. 13. We have given anxious consideration to this appeal. It seems to us that the most pertinent factor is that the maximum penalty for the offence for which the appellant fell to be sentenced was one of 5 years' imprisonment, and further, that the indictment had been amended by the Crown and they elected not to proceed on an offence involving a more serious intent. 14. Bearing in mind that there was a plea of guilty in this case and that the appellant required some credit for that, we have come to the conclusion that the sentence of 3 years' imprisonment was in the circumstances manifestly excessive. 15. We note in passing that section 20 of the Offences Against the Person Act 1861 , dealing with inflicting grievous bodily harm and unlawful wounding, a section with which this court is very familiar, likewise imposes a maximum penalty of 5 years. We think that in the circumstances the level of penalty for those offences is of some relevance to what ought to be imposed for the present offence. That said, there can be no doubt that this was a terrifying incident from the viewpoint of the victim and there is no real explanation for why the appellant committed this offence, which was uncharacteristic and a single offence. 16. We have come to the conclusion that in all the circumstances the right sentence would be one of 2 years' imprisonment. Accordingly, the appeal is allowed to that extent. 17. MR JANES: My Lord, I am grateful.

2008_06_06-1529.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1480/data.xml

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900658232731cb36d1f8a9c9d8d93b4ad77c37b3c7fe8763366aed9092e0cd7a

[2011] EWCA Crim 80

EWCA_Crim_80

2011-01-19

crown_court

No: 2010/1137/C1 Neutral Citation Number: [2011] EWCA Crim 80 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 19 January 2011 B e f o r e : LORD JUSTICE PILL MR JUSTICE OWEN THE RECORDER OF DOVER (HIS HONOUR JUDGE PATIENCE QC) (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - R E G I N A v MERRICK BROWN - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Commun

No: 2010/1137/C1 Neutral Citation Number: [2011] EWCA Crim 80 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 19 January 2011 B e f o r e : LORD JUSTICE PILL MR JUSTICE OWEN THE RECORDER OF DOVER (HIS HONOUR JUDGE PATIENCE QC) (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - R E G I N A v MERRICK BROWN - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - Mr G Trembath QC appeared on behalf of the Appellant Miss S Whitehouse appeared on behalf of the Crown - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE PILL: On 20th November 2009 in the Central Criminal Court before His Honour Judge Barker QC, the Common Sergeant of London and a jury, following a 10 day trial, Merrick Ainsworth Brown was convicted of murder. He was sentenced to imprisonment for life with a specified minimum term of 33 years, less 127 days spent on remand. Brown appeals against conviction by leave of the single judge. 2. On 16th October 2001 Shaun Fray was shot in the back of the head with a single bullet. On 2nd November 1990 he had pleaded guilty to an armed robbery in which a security van had been held up. A large quantity of cash had been taken, over a quarter of a million pounds, along with cheques. Of that something over £100,000 was recovered, but the balance was never found. Fray was sentenced to 10 years' imprisonment for his part in the robbery and was released on licence in 1994. He returned to run a small car hi-fi business with other men and was believed to have received a modest wage. He met Miss Amoy in 2000 and they married the following year. On 16th October 2001 she was 22 weeks pregnant. 3. A number of discarded papers were found near the victim's body when a search was conducted. Drawers in his bedroom had been disturbed. The room was examined for fingerprints and fingerprints were found on three documents to which we will refer. They were the appellant's fingerprints. 4. The prosecution case was that this was a deliberate contract killing. Remarks were made suggestive of the connection with the earlier armed robbery and the missing £130,000. At the trial evidence was based on scientific appraisal, which could not be challenged, that the appellant's fingerprints were on three documents found at the place where he was killed. Reliance was also sought to be placed on the victim's wife's evidence as to what she saw in the room and on evidence of previous firearms offences by the appellant which was said to show propensity. 5. The defence case was that the appellant was not responsible for or in any way involved in the murder. Documents could have been transported from elsewhere. The identification evidence, such as it was, was unreliable and aspects of Mrs Fray's description were at odds with the appellant's appearance. 6. In breach of licence the appellant had gone to the United States and he was not extradited from there until March 2009. That, in part at any rate, explains the very long gap between the death and the trial. 7. Mrs Fray said that her husband had a regular routine. He usually arrived home between 7.00 and 7.30 in the evening. He was very neat and tidy with his papers. She never saw rubbish or papers anywhere. He was concerned about the low level of his earnings. She had spoken to him during the day on 16th October and he returned home at his usual time. She then heard him talking and assumed he was on the telephone. She went to investigate and an armed man appeared in the kitchen doorway. He was armed with a gun and indicated to her where she was to go. She described him (at trial known as male 1) as a dark-skinned black man with short Afro hair of average build. While in the hallway of her home, Mrs Fray heard a scuffle and a gunshot. She was taken into the bedroom where the victim was lying motionless on the floor. Two men were standing over him, one of whom (described at the trial as male 2) had a handgun. The Crown's case was that male 2 was the appellant. He ordered her to lie on the floor but then said to her: "Where's the money. Where's the gold." She gave him a pouch containing £2,000, credit cards and other documents such as the victim's passport and birth certificates. Three men were present at that stage. Male 2 repeated his demands, breaking an inexpensive chain which she was wearing around her neck. She said there was no more money. He took his gun from his waistband, led her to the bedroom and rummaged through some clothes. She was then told to get on the floor and when she did so the men then left. She summoned help from neighbours and a 999 call was made at 19.44 hours. 8. In her evidence she described male 2 as darker skinned than male 1 who had been described as darker skinned than her. He was over six feet tall and could have been as tall as the victim, who she said was six feet seven inches tall. He was a big man with short black Afro hair, scruffy beard and possibly a moustache. His two front teeth were large and yellowish-brown in colour. She put his age at 35 to 40. She also gave descriptions of male 3 and male 1 - a description which she had given years earlier at interview on 19th October 2001. In some respects the descriptions of male 2 were similar but they were not consistent with the appellant's skin tone, height, hairstyle or build. She had produced an E-fit description in October 2001. This was put to her and it depicted male 2 again with short Afro hair. In cross-examination she said that the hair was not intended to be exact, but she reiterated her earlier description. 9. A video identification procedure was conducted in July 2007, that is over six years after the offence was committed. Neither the appellant nor his legal advisers were aware of that because he was in the United States. The usual notification of the solicitor and other formalities were not therefore followed. No point is now taken on behalf of the appellant by Mr Trembath QC who appears for him, and no allegation of a breach of the Code for such procedures, is taken. We are not at all surprised at that having regard to the appellant having deliberately absented himself from the jurisdiction for a long time. We will refer in somewhat more detail to the evidence she gave in relation to the procedure. 10. Evidence of the fingerprints was given and the forensic scientist had no doubt that the appellant had left marks on three documents which were found at the scene. One of those was dated 1st September 2001 - that is only a matter of weeks before the killing occurred. That was a Woolwich Bank statement of account. The second document was a further statement several months earlier and the third a magazine. 11. On behalf of the appellant Mr Trembath takes two points. The first is that Mrs Fray's evidence of the VIPER procedure in 2007 should not have been given. Even if contrary to that submission it was admissible, her post-procedure comments should not have been admitted in evidence. It would follow that her evidence at trial in which she described the procedure and gave her up-to-date view on it should also have been excluded. That of course was a further two years or so after the procedure had been followed. 12. Mr Trembath submits that the issue was identification. He relied on the marked differences between the descriptions given by the witness and the appearance of the appellant. The appellant had dreadlocks at the material time, very different from the short cropped hair with which the witness described the assailant. The appellant was five feet ten or five feet eleven inches tall, considerably less than the six feet five to six feet seven which she described the assailant as being. The witness was herself of West Indian extraction and familiar with dreadlocks. There was a discrepancy as to the colour of skin also between the description she gave and the skin of the appellant. 13. At the trial, not surprisingly, counsel cross-examined the witness about these differences and the appellant in his case relied on the differences in description between the man present and the appellant. Mr Trembath submits that the procedure in 2007 being so long after the killing should not have been admitted. Moreover, the remarks made by the witness afterwards were highly speculative and should not have been admitted. It is submitted that their effect on the defence was devastating. 14. The images used at the 2007 procedure were photographs. The photographs were cropped to face only with floating head to eliminate the red bandanna scarf which the appellant, in one of the photographs of him, was wearing. Having viewed the video parade twice, the witness asked to see image three again - that was the image of the appellant. It was played to her twice. She was then asked whether one of the persons she had seen in the house was shown on the film. Her reply was: "I am not sure." However, on the same day after the procedure the witness made a statement in respect of image number three, stating: "I did ask to see number three twice as I wasn't sure. If I could have seen the face longer and the mouth open then yes I could have possibly identified the male shown at number three as the male involved." That is so speculative, submits Mr Trembath, that it should have been excluded, as should have the whole procedure, notwithstanding the appellant not being able to complain of it being followed in his absence because he had gone to the United States and had to be extradited from there to face the charge. 15. Mr Trembath relies on the case of George [2002] EWCA Crim. 1923 where there were a number of potentially identifying witnesses and an issue arose as to the admissibility of the evidence of one of them. The Lord Chief Justice at paragraph 34 stated that the court recognised the dangers involved in wrong convictions occurring in identification cases. He added: "We also agree that prosecuting counsel must be cautious and avoid conducting his examination of a witness who has failed to make a positive identification in a manner which suggests to the witness that but for this fact or that fact that the witness would have made a positive identification. An identification which is qualified cannot be transformed into one which is unqualified by careful questioning." Mr Trembath submits the principle applies more strongly here because this was not even a qualified identification; it was a non-identification. As the judge himself put it when summing-up, it gave rise to no more than a "qualified suspicion". By admitting the comments which the witness made after the procedure had been followed and by permitting the witness to give evidence about it years after the killing had occurred, the prosecution had breached the principle which had been stated by the Lord Chief Justice. At paragraph 37 it was accepted that: "... where a witness makes a spontaneous remark at a parade and it is recorded we are satisfied that such a remark is admissible in evidence if relevant and probative subject to the trial Judge's discretion to exclude it pursuant to S.78 of PACE." At paragraph 36 the court stated that the judge was required to decide whether the evidence "is more prejudicial than relevant and probative bearing in mind the importance of protecting the position of a defendant against unfairness." In that case the court concluded (75): "... when the identification evidence is looked at as a whole, it provides compelling evidence that the appellant had been at the scene of the crime at the relevant time." The court referred to an underlying unity of description at paragraph 76. 16. The present case is quite different. There is no such underlying unity. There are no other potentially identifying witnesses. The case is of an entirely different nature and the question arises whether in this case it was right for the judge in his discretion to admit the evidence from Mrs Fray of what happened in 2007. 17. For the prosecution, Miss Whitehouse refers to the broad discretion available to judges in this context, one with which this court should be reluctant to interfere. Moreover, she submits that there is strong evidence against the appellant, not in this case other potentially identifying evidence, but the evidence of the fingerprints. There was in this case, to cite the term used by the Lord Chief Justice at paragraph 36 of George , "highly probative evidence". The judge was entitled to admit, on the basis that the jury were entitled to see it, the entire potentially identifying procedure by the witness. 18. Before commenting further we refer to the evidence given at the trial in relation to the later identification or non-identification or qualified suspicion, as the judge called it. In his summing-up the judge described what had happened at the parade. He went on to summarise the witness's evidence about it. At page 47: "When she gave evidence she told us about that procedure and what was going through her mind at the time, and she told us that when she saw number 3 for the first time she said: that was the image that was left in my mind. When I had contact with him his mouth was always open and his teeth were showing. His teeth were one of the features that I had in my mind, what I saw in the E-fit was just a part. What I created in the E-fit was just a part. If I had been able to see the teeth in the course of the video procedure that would have given me a better picture. Without the teeth, it would be very difficult to be sure." The witness had mentioned teeth as a distinctive feature of her description when she had first given one to the police years earlier. The judge continued with his summary: "The image that I had on the initial contact was the one I used on the E-fit. As I looked at the parade, bits and pieces came back of the image of him. ... I looked at that person twice as I thought it fitted the image that I retained in my mind. I could not be sure as the teeth were not there and the whole head was not full, so all I had was part of the picture and tried to fitted it in with what I know to see if it matches." The judge then summarised it and stated that it was at best a "partial identification". He also used the expression already cited, "qualified submission". The question is whether that evidence should have been admitted. 19. We bear in mind the strong evidence against the appellant constituted by the presence of the fingerprints, especially of one on a document which had clearly been disturbed by the assailants from the drawer, when, it was suggested, they were looking for money which they believed the deceased had kept to himself. That was a recent document and the appellant's fingerprint was on it. It is suggested that notwithstanding the short interval of time since the document's creation, the appellant might have touched it, for example, in a coffee shop. It is possible that the two Woolwich documents had been placed inside the magazine and had been taken to a public place where the appellant had touched them. No doubt this point was made to the jury and its weight assessed by the jury. 20. This was, in the view of the court, powerful evidence that the appellant was one of the assailants. There was evidence of man number 2 being in the bedroom disturbing the contents and it is on those contents that his fingerprint is found. There was evidence that the deceased was a tidy man who looked after his documents carefully. We also bear in mind that at the trial, and rightly so in what was clearly a very difficult case for the defence having regard to the fingerprint evidence, counsel attempted to make use of the differences between the description given initially and during a more formal interview the following year by the witness, and the appellant's own appearance. They were significant differences and counsel was of course right to require the jury to consider them. However, once that approach is taken, in our judgment it is difficult for the defendant to claim that the entire evidence of the witness should not be given. If the defence were seeking to rely on parts of it, the jury were entitled to consider the entire sequence of events and to do so notwithstanding the very significant delay which arose from the appellant's absence from the jurisdiction. 21. We acknowledge the danger identified by the court in George of attempting to convert a qualified into an actual identification. This was neither actual nor qualified and what weight if any the jury gave to it was a matter for them. But in our judgment and having regard to the strength of the fingerprint evidence, they were entitled to have the opportunity, and the judge was entitled to give them the opportunity, to consider the entire investigative procedure in relation to identification. That involved questioning rightly conducted about the early descriptions. In our judgment it also entitled the admission of material in relation to a procedure followed years later, in an approved manner. It entitled the post-procedure comments to be made. The jury were entitled to know the entire approach of the witness. Moreover, she was entitled to give evidence about it so that the jury were in the best position they could be. 22. There could be cases where the difference between a description of events at the scene and the presence of the appellant was such that there was an irresistible inference to be drawn that it was not the appellant who was present. This is not one of those cases. We have considered the argument that, because it was no more than a qualified suspicion, the evidence ought not to have been given about later procedures, but once the defence challenged the earlier parts of the procedure the judge was entitled, in our judgment, to ensure that the jury knew of the whole of the procedure so that they could bear the evidence, such as it was, in mind when coming to their conclusion. 23. The second point taken is in relation to the bad character of the appellant. He had two convictions for possessing firearms without a certificate in October 1992 and May 1997. After release from a sentence of six years' hard labour he arrived in the United Kingdom shortly before the murder. In February 2003 he was sentenced to four years' imprisonment for an offence of possessing a loaded firearm at a railway station. In September 2003 he was sentenced to four years' imprisonment for an offence involving his discarding a bag containing a loaded pistol. Mr Trembath submits that the admission of these convictions had a devastating effect on what otherwise was a weak case and accordingly should not have been admitted. 24. We do not accept that this was a weak case. The strength of it was in the fingerprint evidence which, to adopt the expression used by the court in George , was highly probative. The prosecution relied on section 101(1)(d) of the Criminal Justice Act 2003 : "Evidence of a defendant's bad character is admissible if, but only if- ... (d) it is relevant to an important matter in issue between the defendant and the prosecution. Section 103(1)(a): "... the question whether the defendant has a propensity to commit offences of the kind with which he is charged is a matter in issue between the defendant and the prosecution within the meaning of the section." Mr Trembath submits that the evidence should have been excluded under section 101(3), because "the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it." It is submitted that the convictions referred to do not demonstrate a propensity to commit a quite different offence of entering someone's house and cold-bloodedly killing them. 25. We do not accept that submission. It appears to us that the record of the appellant in relation to firearms was capable of demonstrating a propensity to commit the offence charged. Moreover, as we have said, this was not a weak case where an attempt was being made to create a case out of nothing by putting in evidence of bad character. It is the distinguishing feature of the present case, in spite of the forceful and attractive submissions made on behalf of the appellant, that the fingerprint evidence was, it appears to us, devastating. No explanation was given of any plausible kind as to how the fingerprints could have been left there, other than by the appellant, and they were found close to the body. 26. Of course it was for the jury to make a decision but in the context of this case we consider first that the entire evidence of the witness was admissible and secondly that the judge was entitled to admit the evidence of previous convictions involving firearms offences. The summing-up clearly was a careful one and no criticisms are made of it. We should add a further point made in relation to the fingerprints, that the appellant's fingerprints were not found on any static as distinct from mobile surface. Mr Trembath referred to documents as being mobile. The jury asked a question about this and it appears that no expert evidence was given as to whether fingerprints on hard surfaces in this context were likely to have been left and the judge stated that he could not help, save to point out that no other fingerprints were found on those static surfaces. That point does not in our judgment significantly weaken the effect of the fingerprint evidence. 27. In the event we have no doubts about the safety of this conviction and the appeal is dismissed.

2011_01_19-2601.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/80/data.xml

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e2c1cb9c837d98900e58197aa8dca4fb190eb02a179fef2bbfd81e34e4b8f03b

[2006] EWCA Crim 175

EWCA_Crim_175

2006-02-23

supreme_court

Case No: 2005/03157 D2 Neutral Citation Number: [2006] EWCA Crim 175 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT ISLEWORTH HIS HONOUR JUDGE McGREGOR-JOHNSON T20050167 Royal Courts of Justice Strand, London, WC2A 2LL Date: Thursday, 23 rd February 2006 Before : LORD JUSTICE MOORE-BICK MR. JUSTICE LLOYD JONES and HIS HONOUR JUDGE FINDLAY BAKER Q.C. - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - LILIANE MAKU

Case No: 2005/03157 D2 Neutral Citation Number: [2006] EWCA Crim 175 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT ISLEWORTH HIS HONOUR JUDGE McGREGOR-JOHNSON T20050167 Royal Courts of Justice Strand, London, WC2A 2LL Date: Thursday, 23 rd February 2006 Before : LORD JUSTICE MOORE-BICK MR. JUSTICE LLOYD JONES and HIS HONOUR JUDGE FINDLAY BAKER Q.C. - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - LILIANE MAKUWA Appellant - - - - - - - - - - - - - - - - - - - - - (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. Ian Macdonald Q.C. and Ms N. Ini Udom (instructed by Aston Clark ) for the appellant Mr. Alper Riza Q.C. and Mr. John Hulme (instructed by the Crown Prosecution Service ) for the respondent - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Moore-Bick: 1. On 20 th May 2005 at the Crown Court at Isleworth before His Honour Judge McGregor-Johnson the appellant, Liliane Makuwa, was convicted of using a false instrument with the intention of inducing somebody to accept it as genuine contrary to section 3 of the Forgery and Counterfeiting Act 1981 and two counts of facilitating an illegal entrant contrary to section 25(1) of the Immigration Act 1971 . The two illegal entrants were the appellant’s children and the instrument in question was a passport issued in the Democratic Republic of Congo (“DRC”) to a friend of the appellant which had been altered by the removal of the original photographs and the insertion of photographs of the appellant and her children. The appellant was sentenced to 12 months’ imprisonment on each count concurrent. She now appeals against conviction by leave of the Single Judge. 2. At about 4.30 p.m. on 15 th January 2005 the appellant arrived at Heathrow airport from the DRC with her two children. She presented herself to an immigration officer, Mr. McMahon, who asked her why they had come to this country and how long they would be staying. Their conversation was conducted in French which the appellant appeared to speak reasonably well, although her mother tongue is Lingala. It did not take him long to discover that the passport she had tendered had been tampered with, but the appellant insisted that it was hers until she was confronted with evidence to the contrary in the form of a photograph of her friend that had been attached to her application for an entry visa. 3. The next morning after spending the night at the airport the appellant was arrested and taken to the police station where the services of a Lingala interpreter were made available. She was seen by a doctor and later that day was interviewed. It was not until well into the course of the interview that she explained that she had fled the DRC out of fear for her personal safety and claimed asylum. She did not tell the doctor that she had been raped, nor did she mention it during the interview. 4. In evidence the appellant said that the danger she faced in her own country drove her to present false documents in an attempt to gain entry to the UK. Her desperate position and her language difficulties accounted for what she had said at the airport and was the reason why her claim for asylum was not made until a Lingala interpreter was available. She was reluctant to mention the rape when she was interviewed because the interpreter, the solicitor and the immigration officials present were all male. She had not mentioned it to the doctor for the same reason. 5. In relation to the charge under the Forgery Act the appellant relied at trial on the statutory defence provided by section 31 of the Immigration and Asylum Act 1999 which provides as follows: “(1) It is a defence for a refugee charged with an offence to which this section applies to show that, having come to the United Kingdom directly from a country where his life or freedom was threatened (within the meaning of the Refugee Convention), he— (a) presented himself to the authorities in the United Kingdom without delay; (b) showed good cause for his illegal entry or presence; and (c) made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom. . . . . . . . . . . . . . . . . . . . . (6) “Refugee” has the same meaning as it has for the purposes of the Refugee Convention.” 6. The Refugee Convention is, of course, the Convention Relating to the Status of Refugees of 28 th July 1951 as extended by the Protocol of 31 st January 1967 (“the Convention”), Article 1 of which defines a refugee as a person who “. . . . . . . owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.” 7. Having given the jury the standard directions on the law, including a direction on the burden and standard of proof, and having directed them on the ingredients of the offence of using a false instrument with intent, the judge told them about the statutory defence. He directed them as follows: “First of all in relation to count 1 there is what is called a statutory defence. It only applies to count 1 and this is where the exception to the general rule comes in. As I say, the general rule is that the prosecution must prove the defendant’s guilt, prove all of the elements of the charge so that you are sure. There are some occasions, and this is one, where there is a particular defence put forward where it is for the defendant to prove the defence. But there is an important difference here. Where it is on the defendant to prove something, he or she does not have to prove it to the same high standard the prosecution have to prove things. They have to prove it on what is called the balance of probabilities, that is to say, they must show that it is more likely than not to be true.” Then, having handed the jury a sheet of written directions, he continued as follows: “The defendant must show the following five matters on a balance of probabilities, that is to say, that they are more likely than not to be true. Firstly, that her genuine reason for coming to the United Kingdom was to claim asylum. Secondly, that she left the Congo owing to a well-founded fear of being persecuted for reasons of membership of a particular social group, i.e. her family, her husband having been arrested, or for reasons of her political opinions. Thirdly, that she presented herself to the authorities in the UK without delay. There is no dispute about that; she went straight to Mr. McMahon. Fourthly, that she showed good cause for her illegal entry into the United Kingdom in that she was reasonably travelling on false papers in order to come to the United Kingdom to claim asylum. Just pausing there, members of the jury, for a moment, you will understand that if somebody is a genuine asylum- seeker they are unlikely to be able to travel on proper documents. That is what this paragraph is directed towards. And fifthly, that she made a claim for asylum as soon as was reasonably practicable after her entering into the UK. Now I emphasise that word or those words “reasonably practicable”. It is for you to judge in the circumstances.” 8. It will be seen that the judge’s direction followed closely the language of section 31 with the addition of a requirement for the appellant to show that she had a genuine reason for coming here to claim asylum and a reference to a well-founded fear of persecution which was clearly intended to reflect the Convention definition of a refugee. 9. The grounds of appeal in this case give rise to four related issues. The first is whether the judge was right to direct the jury that the burden of establishing all the facts giving rise to a defence under section 31 , including the fact that he is a refugee, rests on the defendant. The second is whether, if the defendant does bear the burden of proving that he is a refugee, the judge should have directed the jury that it is sufficient for him to show only that there is a serious possibility that, if returned to the country of his nationality (or, in the case of a stateless person, his former habitual residence), he will be persecuted for a Convention reason, not that he must establish that on the balance of probabilities. The third, which is closely related to the second, is whether the judge failed properly to explain to the jury what is meant in this context by a “well-founded” fear of persecution, membership of a social group or political opinions. The fourth is whether, insofar as the defendant bears the burden of proof in relation to matters other than his status as a refugee, that burden is legal (i.e. persuasive) or evidential in nature. What facts give rise to a defence under section 31 ? 10. It is convenient to begin by considering the second of these question first because it raises issues of principle relating to the meaning and effect of section 31 . Mr. Macdonald Q.C. submitted on behalf of the appellant that section 31 of the Immigration and Asylum Act 1999 was enacted to give effect in relation to a limited range of offences to the provisions of article 31 of the Convention and should therefore be construed and applied in the same way as the courts have construed the requirements of the Convention. 11. Article 31 of the Convention provides as follows: “The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.” 12. In order to be considered a refugee within the terms of the Convention a person must be outside the country of his nationality or former habitual residence and unwilling to avail himself of the protection of that country by reason of a well-founded fear of persecution. For such a fear to be well-founded there must be sufficient grounds for it of a kind that are capable of objective verification. In R v Secretary of State for the Home Department Ex parte Sivakumaran [1988] 1 A.C. 958 Lord Keith said at page 994F “In my opinion the requirement that an applicant's fear of persecution should be well-founded means that there has to be demonstrated a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country. In Reg. v. Governor of Pentonville Prison, Ex parte Fernandez [1971] 1 W.L.R. 987 , this House had to construe section 4(1)(c) of the Fugitive Offenders Act 1967 , which requires that a person shall not be returned under the Act if it appears “that he might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions.” Lord Diplock said at p. 994 “My Lords, bearing in mind the relative gravity of the consequences of the court's expectation being falsified either in one way or in the other, I do not think that the test of the applicability of paragraph (c) is that the court must be satisfied that it is more likely than not that the fugitive will be detained or restricted if he is returned. A lesser degree of likelihood is, in my view, sufficient; and I would not quarrel with the way in which the test was stated by the magistrate or with the alternative way in which it was expressed by the Divisional Court. ‘A reasonable chance,’ ‘substantial grounds for thinking,’ ‘a serious possibility’ - I see no significant difference between these various ways of describing the degree of likelihood of the detention or restriction of the fugitive on his return which justifies the court in giving effect to the provisions of section 4(1) ( c ).” I consider that this passage appropriately expresses the degree of likelihood to be satisfied in order that a fear of persecution may be well-founded. ” 13. Lord Goff expressed similar views at page 1000B-F where he said “But once it is accepted that the Secretary of State is entitled to look not only at the facts as seen by the applicant, but also at the objective facts as ascertained by himself in relation to the country in question, he is, on the High Commissioner's approach, not asking himself whether the actual fear of the applicant is plausible and reasonable; he is asking himself the purely hypothetical question whether, if the applicant knew the true facts, and was still (in the light of those facts) afraid, his fear could be described as plausible and reasonable. On this approach, the Secretary of State is required to ask himself a most unreal question. His appreciation is in any event likely to be coloured by his own assessment of the objective facts as ascertained by him; and it appears to me that the High Commissioner's approach is not supported, as a matter of construction, by the words of the Convention, even having regard to its objects and to the travaux préparatoires. In truth, once it is recognised that the expression "well-founded" entitles the Secretary of State to have regard to facts unknown to the applicant for refugee status, that expression cannot be read simply as “qualifying” the subjective fear of the applicant - it must, in my opinion require that an inquiry should be made whether the subjective fear of the applicant is objectively justified. For the true object of the Convention is not just to assuage fear, however reasonably and plausibly entertained, but to provide a safe haven for those unfortunate people whose fear of persecution is in reality well-founded.” 14. As Mr. Macdonald pointed out, it is not necessary for a person seeking asylum to satisfy the authorities on the balance of probabilities that his fear of persecution is well-founded; something less than that will suffice. 15. The purpose and effect of article 31 of the Convention was considered by the Divisional Court in R v Uxbridge Magistrates’ Court Ex parte Adimi [2001] Q.B. 667 . In that case the court considered the position of three asylum seekers who were being prosecuted for being in possession of false passports at a time when their applications to be accorded refugee status had yet to be determined by the Home Secretary. In each case the applicant sought judicial review of the decision to prosecute him and in two cases the applicants also sought judicial review of the policy of prosecuting asylum seekers holding false papers whose claims had yet to be determined. Each of them relied on article 31 of the Convention. Simon Brown L.J., with whom on this question Newman J. agreed, described the position as follows at page 677G-678A: “What, then, was the broad purpose sought to be achieved by article 31? Self-evidently it was to provide immunity for genuine refugees whose quest for asylum reasonably involved them in breaching the law. In the course of argument, Newman J. suggested the following formulation: where the illegal entry or use of false documents or delay can be attributed to a bona fide desire to seek asylum whether here or elsewhere, that conduct should be covered by article 31. That seems to me helpful. That article 31 extends not merely to those ultimately accorded refugee status but also to those claiming asylum in good faith (presumptive refugees) is not in doubt. Nor is it disputed that article 31’s protection can apply equally to those using false documents as to those (characteristically the refugees of earlier times) who enter a country clandestinely. ” 16. The parties in that case made conflicting submissions about the steps that should be taken to ensure that the United Kingdom complied with its obligations under international law as expressed in article 31 of the Convention. The applicants submitted that there should be no prosecution until the Home Secretary had determined the claim for asylum and that his decision should be determinative of the question whether article 31 applied. The respondents submitted that the proper course was for the defendant to apply for a stay of any proceedings against him. Simon Brown L.J. did not consider either course entirely satisfactory and it is interesting to note that one of his reasons for rejecting the respondents’ submission that the issue be determined in the context of an application to stay for abuse of the process was that it would place on the defendant the burden of proof on the balance of probabilities: see page 683E-F. In the end, however, he concluded in the light of the respondents’ assurances that they intended to give full effect to article 31 that the abuse of process jurisdiction was able to provide a sufficient safety net for those wrongly prosecuted. Newman J. took a different view. He noted that article 31 had not been incorporated into domestic law and was therefore unable to accept that the court could grant or refuse relief by reference to it. It was in his view entirely a matter for the executive: see pages 694F-695B. 17. The Immigration and Asylum Act 1999 was passed a little over three months after the decision in Adimi . Section 31(1) is closely modelled on article 31 of the Convention with the addition in paragraph (c) of the requirement that the defendant must have made a claim for asylum as a soon as reasonably practicable after his arrival in the United Kingdom. It is reasonable to conclude, therefore, that the purpose of enacting section 31 was to meet the difficulties exposed by the judgments in Adimi by incorporating into domestic law, with certain modifications, the principles contained in article 31 in the form of a defence to the charges most likely to be brought against asylum seekers entering the country on false passports. In our view Mr. Macdonald was right, therefore, to submit that section 31(1) of the Act is to be construed against the background of article 31 of the Convention. 18. The responsibility for determining whether a person is to be recognised as a refugee rests exclusively on the Home Secretary: see Sivakumaran per Lord Templeman at page 996. On that ground, and on the grounds that article 31 of the Convention was intended to afford protection to those whose claims for asylum have yet to be determined, Mr. Macdonald submitted that anyone who has claimed asylum and invokes the defence provided by section 31 of the Immigration and Asylum Act 1999 must be assumed to be a refugee until the Home Secretary has determined his application for asylum. In further support for the argument he sought to rely on a passage in the speech of Lord Bridge in R v Home Secretary Ex parte Bugdaycay [1987] A.C. 514 at page 525H in which he said that it was to be assumed that the applicant in that case, Mr. Musisi, was a refugee. 19. We are unable to accept that submission. If Parliament had wished to exclude from the jury’s consideration the issue of the defendant’s refugee status, no doubt subsection (1) could have been worded to provide that it was a defence for a person charged with a relevant offence who claimed to be a refugee to show that he satisfied the requirements of paragraphs (a) to (c), but that is not how the legislation is drafted. (We do not think that any assistance can be derived from Lord Bridge’s comment in Bugdaycay which simply reflected the nature of the argument before the House and the fact that Mr. Musisi’s refugee status was not in dispute.) It is clear from the terms of subsection (1) that whether the defendant is a refugee in Convention terms is one of the matters that the court has to consider as an essential element of the defence, as well as the question whether he has come directly from a country where his life or freedom was threatened. Moreover, it is clear that the decision of the Home Secretary whether to grant or refuse refugee status is not final for these purposes since by virtue of subsection (7) the refusal of an application for asylum does not prevent the defendant from showing that he does in fact fall within the terms of subsection (1). In our view, therefore, one is brought back to the terms of section 31 itself. 20. The first thing one notices about section 31 is that instead of referring to a “person” charged with an offence to which this section applies it refers specifically to a “refugee”. Moreover, subsection (6) defines a refugee in terms of the Convention, not simply as a person who has claimed asylum. In the light of what was said by their Lordships in Sivakumaran we are satisfied that one of the essential characteristics of a refugee as defined by the Convention is that it can be said of him that there is a serious possibility, a reasonable degree of likelihood, or a real and substantial risk (the expressions are interchangeable) that if he is returned to the country of his nationality or former habitual residence he will suffer persecution for one of the Convention reasons. That is reinforced by the use of the words “(within the meaning of the Refugee Convention)”. They cannot have been intended to govern the word “refugee”, both because they do not naturally relate to it within the structure of the subsection, and because the meaning of the word “refugee” is defined separately in subsection (6). They must therefore have been included to make it clear that the reference to a country where his life or freedom was threatened are to be understood in the same sense as they are to be understood in the context of the Convention. 21. The first question, therefore, to which section 31 gives rise is whether the defendant is unwilling to return to the country of his nationality or former habitual residence because he is afraid of persecution. If he is, the next question is whether there is a serious possibility that if he were returned to that country he would suffer persecution. If there is, it is then necessary to ask whether the risk is of persecution for one of the Convention reasons. If it is, he is a refugee for the purposes of subsection (1). At that stage it becomes necessary to enquire whether he came to the United Kingdom directly from a country where his life or freedom was threatened and whether he satisfies the requirements of paragraphs (a) to (c). 22. It follows that in our view, if the defendant bears the burden of proving that he is a refugee (a question to which we will return in a moment), it is sufficient for him to show that there is a serious possibility that he would suffer persecution for a Convention reason if he were returned to the country of his nationality or former habitual residence. We consider that adequately reflects both the conventional standard of proof where the burden is on the defendant and also the appropriate criterion for establishing refugee status. The burden of proof 23. We turn next to consider the burden of proof. Mr. Riza Q.C. on behalf of the Crown submitted that the burden of proving all the matters giving rise to a defence under section 31(1) lies on the defendant who must establish them on the balance of probabilities. In this connection two questions arise for consideration: (a) whether subsection (1) imposes on the defendant the burden of proving all or any of the facts necessary to establish the defence; and (b) insofar as it does, whether that burden is legal or only evidential. (i) Refugee status 24. It is convenient to consider first the question of the defendant’s refugee status. In Sheldrake v D.P.P. [2004] UKHL 43 , [2005] 1 A.C. 264 Lord Bingham (citing Lord Griffiths in R v Hunt [1987] A.C. 352 , 374) reaffirmed that if the language of the statute in question does not make it clear whether the ground of exoneration must be established by the defendant or negatived by the prosecutor, the court should consider the mischief at which the statute was aimed and practical considerations affecting the burden of proof, in particular the ease or difficulty that the respective parties would encounter in discharging the burden. 25. In the present case section 31 provides a defence to charges made under various statutory provisions relating to the use of false documents, but in view of the specific nature of that defence, the particular mischief which Parliament had in mind when enacting that section must have been the use of false passports or other identity papers to obtain entry to this country. As to the practical considerations relating to the ease or difficulty of establishing refugee status, the defendant is in the best position to know whether he is afraid of persecution in the country of his nationality or former habitual residence, but it may be difficult for him to show that his fear of persecution for a Convention reason is objectively well-founded because he is unlikely to have access to the wider country information relevant to that question. Moreover on the face of it the language of subsection (1) draws a distinction between the defendant’s status as a refugee and what, as a refugee, he has to show. Further support for the appellant’s position can be gained from subsection (7) which provides as follows: “If the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under subsection (1), that person is to be taken not to be a refugee unless he shows that he is.” The fact that the statute casts a burden on the defendant under these circumstances to show that he is a refugee tends to support the conclusion that he does not bear that burden under other circumstances. 26. In the light of these matters we have come to the conclusion that, as in the case of other more commonly raised defences, such as self-defence or alibi, provided that the defendant can adduce sufficient evidence in support of his claim to refugee status to raise the issue, the prosecution bears the burden of proving to the usual standard that he is not in fact a refugee. (ii) Other matters 27. Different considerations apply, however, in relation to the other matters which have to be established under section 31(1) . In the first place the words “It is a defence for a refugee . . . . to show that . . . .” are themselves sufficient to make it clear that a burden of some kind is being imposed on the defendant and the expression as a whole strongly suggests that the burden was intended to be legal rather than merely evidential. A similar question arose in R v Johnstone [2003] 1 W.L.R. 1736 , although admittedly in a different context. In that case the provision under consideration was section 92(5) of the Trade Marks Act 1994 . This provides a defence to a charge of counterfeiting in the following terms: “It is a defence for a person charged with an offence under this section to show that he believed on reasonable grounds that the use of the sign in the manner in which it was used, or was to be used, was not an infringement of the registered trade mark.” Lord Nicholls, with whom the other members of the House agreed, did not think that the subsection could be read as imposing an evidential rather than a legal burden on the defendant. Although the subject matter of the legislation in that case was different, the terms in which the defence was expressed are identical to those of section 31(1) . We are left in no doubt it was the intention of Parliament not merely to place the burden of proof on the defendant but to impose on him the legal burden of proving the remaining matters to which subsection (1) refers. We do not find that surprising given that they are all matters of which the defendant is likely to be at least as well, if not better, informed than the prosecution. 28. The question then arises whether in this case the imposition of a legal burden of proof involves an unjustifiable infringement of the presumption of innocence which, although historically part of the common law, is now also enshrined in article 6(2) of the European Convention on Human Rights. Since the burden ordinarily lies on the prosecution to prove all the elements of the offence with which the defendant is charged, it may be said that the presumption of innocence is infringed whenever there is imposed on the defendant the legal burden of proving matters which, if established, provide him with a defence. Almost all the exceptions to the presumption are statutory, a matter which has assumed greater significance since the passing of the Human Rights Act 1998, section 3(1) of which requires both primary and subordinate legislation to be read and given effect in a way which is compatible with Convention rights. The question therefore arises whether it is necessary in this case to read section 31(1) as imposing an evidential, rather than a legal, burden of proof to ensure compatibility. 29. In Sheldrake v D.P.P. Lord Bingham reviewed a number of decisions of the European Court of Human Rights in which the presumption of innocence had been considered in the context of provisions imposing a reverse burden of proof. In paragraph 21 of his speech he expressed the following conclusions: “From this body of authority certain principles may be derived. The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirement of mens rea. But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. Security concerns do not absolve member states from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case.” 30. Having then considered a number of decisions of the courts in the United Kingdom, including R v D.P.P. Ex parte Kebilene [2000] 2 A.C. 326 , R v Lambert [2002] 2 A.C. 545 and R v Johnstone he said in paragraph 31: “The task of the court is never to decide whether a reverse burden should be imposed on a defendant, but always to assess whether a burden enacted by Parliament unjustifiably infringes the presumption of innocence. It may none the less be questioned whether (as the Court of Appeal ruled in para 52d) “the assumption should be that Parliament would not have made an exception without good reason”. Such an approach may lead the court to give too much weight to the enactment under review and too little to the presumption of innocence and the obligation imposed on it by section 3 .” 31. In R v Johnstone Lord Nicholls said in paragraph 50: “All that can be said is that for a reverse burden of proof to be acceptable there must be a compelling reason why it is fair and reasonable to deny the accused person the protection normally guaranteed to everyone by the presumption of innocence. …. A sound starting point is to remember that if an accused is required to prove a fact on the balance of probability to avoid conviction, this permits a conviction in spite of the fact-finding tribunal having a reasonable doubt as to the guilt of the accused: see Dickson CJ in R v Whyte (1988) 51 DLR (4th) 481 , 493. This consequence of a reverse burden of proof should colour one’s approach when evaluating the reasons why it is said that, in the absence of a persuasive burden on the accused, the public interest will be prejudiced to an extent which justifies placing a persuasive burden on the accused. The more serious the punishment which may flow from conviction, the more compelling must be the reasons. The extent and nature of the factual matters required to be proved by the accused, and their importance relative to the matters required to be proved by the prosecution, have to be taken into account. So also does the extent to which the burden on the accused relates to facts which, if they exist, are readily provable by him as matters within his own knowledge or to which he has ready access.” 32. The offences in respect of which section 31(1) provides a defence are those set out in Part 1 of the Forgery and Counterfeiting Act 1981 (making, copying, possessing and using false instruments, including passports), offences under sections 24A of the Immigration Act 1971 (obtaining or seeking to obtain entry by deception) and offences under section 26(1)(d) of that Act (falsification of documents and possession of a false passport for use for the purposes of that Act). In each case the prosecution is obliged to establish to the usual standard all the ingredients of the offence just as it would if the defendant were not a refugee. The effect of section 31(1) is simply to provide a defence to a defined class of persons in prescribed circumstances. It does not therefore impose on the defendant the burden of disproving an essential ingredient of the offence. 33. The mischiefs at which these statutory provisions are aimed are many and various, but the principal mischief that Parliament must have had in mind when enacting section 31(1) was the use of false passports and other identity papers by those who are not entitled to enter the United Kingdom in order to obtain entry. It has been recognised both in Strasbourg and in this country that there is a legitimate public interest in the implementation of a lawful immigration policy which may provide a justification for measures that would otherwise involve an infringement of Convention rights, provided that their effect is not disproportionate to the aim which they seek to achieve: see, for example, see R ( Ullah) v Special Adjudicator [2004] UKHL 26 , [2004] 2 A.C. 323 and R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27 , [2004] 2 A.C. 368 . The fact that the claims to refugee status of many of those who seek asylum in this country are ultimately rejected as unfounded underlines the importance of maintaining effective immigration control. 34. Mr. Riza Q.C. submitted on behalf of the Crown that the matters which the defendant is required to prove in order to take advantage of the statutory defence are all largely, if not entirely, within his own knowledge. Moreover, they are matters in relation to which it will usually be difficult, if not impossible, for the Crown to adduce positive evidence. He submitted that if the defendant bore no more than an evidential burden in relation to them, the Crown would be at a serious disadvantage and the effectiveness of the legislation relating to the use of false passports to obtain entry would be seriously undermined. In support of this argument he referred us to the recent decision of this court in R v Embaye and others [2005] EWCA Crim 2865 (unreported). 35. In Embaye the court was concerned with section 2 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 which makes it an offence to attend a leave or asylum interview without being in possession of a valid immigration document. Subsection (4) provides a number of defences, one of which is for the defendant to prove that he has a reasonable excuse for not being in possession of a document of that kind. One question that arose was whether the defendant bears the burden of proof in such cases and, if so, whether the burden is legal or evidential in nature. In the light of the wording of the subsection (“It is a defence for a person . . . . to prove . . .”) the court had no difficulty in holding that the defendant bears the burden of proof. Nor did it have difficulty in holding that the burden is legal rather than evidential. Kennedy L.J. said in paragraph 29: “For that same reason, namely that the defendant alone is likely to have all of the relevant information, and bearing in mind the importance of maintaining an effective immigration policy, and the limitation on the penalties which can be imposed under the Act, we see no reason to conclude that the burden of proof should be interpreted as being anything less than a legal burden. An evidential burden would do little to promote the objects of the legislation in circumstances where the prosecution would have very limited means of testing any defence raised. ” 36. The maximum sentence for most of the offences under Part I of the Forgery and Counterfeiting Act 1981 , including the offence created by section 3 under which the appellant in this case was charged, is ten years’ imprisonment following conviction on indictment. That is a considerably greater penalty than the maximum of two years’ imprisonment provided for an offence under section 2 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. In other respects, however, the considerations are little different from those which weighed with the court in Embaye . In almost all cases it would be very difficult, if not impossible, for the Crown to prove that the defendant’s life or freedom had not been threatened in the country from which he had come; in most cases it would be difficult, if not impossible, for the Crown to prove that he had not presented himself to the authorities in the United Kingdom without delay; in many cases it would be difficult to show that he had not shown good cause for his illegal entry or presence or that he had not made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom. If the burden on the defendant were no more than to adduce sufficient evidence to raise an issue in relation to matters of that kind, the statutory provisions to which section 31 relates would be rendered largely ineffective in the case of all those who came to this country claiming a right to asylum here. We recognise that imposing a legal burden of proof on the defendant engages the presumption of innocence and we recognise that the consequences of conviction, at any rate for an offence under Part I of the Forgery and Counterfeiting Act, are severe. Nonetheless, we regard these as sufficient reasons for imposing a legal burden of proof on the defendant. We are accordingly satisfied that the infringement of article 6(2) is justifiable in this case since it represents a proportionate way of achieving the legitimate objective of maintaining proper immigration controls by restricting the use of forged passports which are one of the principal means by which they are liable to be overcome. We should add that we do not consider that the existence of the reverse burden of proof provided for in section 31(1) will prevent the defendant who seeks to rely on its provisions from receiving a fair trial. How should the jury be directed? 37. In the light of our conclusions we return to the way in which the judge should direct the jury in a case where the defendant seeks to rely on section 31(1) . The first thing they should be told is that section 31 provides a special defence to a person who is a refugee. It may well be that, in many cases where the defendant claims to be a refugee, the Crown, while not accepting the claim, will not seek to establish that he is not. In such cases there will be no issue for the jury to decide and no need to explain the term. Where the Crown disputes the defendant’s claim it will be necessary to explain what a refugee is for the purpose of s.31. We would suggest that is best done by drawing on the language of the Convention itself, using words of the following kind: “a refugee is a person who has left his own country owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.” 38. It will also be necessary to give the jury some assistance on the meaning of a “well-founded fear”. We would suggest that the concept can best be conveyed by directing them that a fear of persecution is well-founded if there is a serious possibility that the defendant will suffer persecution if returned to his own country. Finally, it will be necessary to direct their attention to the fact that in order to be a refugee the defendant must fear persecution for one of the reasons mentioned in the Convention, that is, race, religion, nationality, membership of a particular social group or political opinion. In most cases there will be no need to give the jury further directions on the meanings of those expressions, but there may be cases when it will be necessary to do so. In such cases the judge should discuss the proposed directions with counsel before he begins his summing-up. 39. Having thus defined a refugee, the judge should then tell the jury (if the matter is disputed) that the burden is on the prosecution to prove that the defendant is not a refugee. If they are sure that he is not, that is the end of the matter as far as this defence is concerned. However, if they think he may be a refugee, they must go on to consider the other matters that have to be proved. These should be separately identified and the jury should be told that it is for the defendant to satisfy them of each matter on the balance of probabilities. The remaining requirements of subsection (1) are couched in ordinary language and will not normally call for further directions. However, in some cases it may be necessary to give specific directions about certain matters: for example, if there is evidence that the defendant spent any length of time in another safe country on the way to the United Kingdom, it may be necessary to explain what is meant in this context by coming directly from a country where his life or freedom was threatened. In our view it may be helpful to the jury to give them directions on all these matters in writing. 40. In the present case the judge did give the jury directions in writing, but he did not direct them correctly on the burden of proof in relation to the issue of the appellant’s refugee status. Nor, in our view, did he give them a proper direction on what is required to render a fear of persecution “well-founded”. The jury rejected the appellant’s defence and may have done so because, although they accepted that there was a real possibility that she would suffer persecution if she were returned to her own country, they were not satisfied that it was more likely than not that she would do so. In a matter of this kind the application of the appropriate test for refugee status and the correct burden of proof have a significant part to play in the protection of those seeking asylum from the imposition of penalties under the criminal law. For the reasons we have given we are satisfied that the judge’s directions were defective. Is the appellant’s conviction unsafe? 41. On the face of it the judge’s failure to give the jury appropriate directions as to what constitutes a refugee and as to the burden of proof in relation to that issue is sufficient to render the conviction unsafe. However, Mr. Riza submitted that despite those shortcomings the appellant’s conviction can nonetheless be considered safe because, even if the judge had directed the jury in the manner we have suggested, her defence was bound to fail since she did not adduce any evidence capable of establishing the matters set out in paragraphs (a)-(c). 42. In the present case there was evidence that the appellant had changed flights in Paris on her way from Kinshasa to London, but although in his summing-up the judge mentioned that the appellant had passed through Paris, he said nothing at all to the jury about the requirement in section 31(1)(a) that the defendant must have come to the United Kingdom directly from a country where her life or freedom was threatened. The obvious explanation for that omission is that it was not a matter in issue at the trial. In those circumstances is it not open to the Crown to rely on it at this stage. 43. Next Mr. Riza submitted that the appellant had not presented herself to the authorities in the United Kingdom without delay. However, there does not appear to have been a dispute about that either and again it is too late to raise the point at this stage. 44. Finally he submitted that the appellant had not made a claim for asylum as soon as was reasonably practicable after her arrival in the United Kingdom. Whether she had done so or not was a question of fact for the jury which called for the exercise of a degree of judgment and the judge directed the jury correctly in relation to it. The circumstances were not in the appellant’s favour since she had failed to claim asylum until the day after her arrival and after she had been interviewed twice by the immigration officer, but she said that she had language difficulties and she was not provided with the services of a Lingala interpreter until she was interviewed by the police the following day. (It was during the course of that interview that she first sought to claim asylum.) Despite these obvious difficulties, we are not confident that the jury must have rejected her defence on this ground and that they would therefore have convicted her in any event. 45. In those circumstances we are satisfied that the appellant’s conviction is unsafe and must be quashed.

2006_02_23-734.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/175/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/175

b347736d81390b0d2afa74b763d5e8c28b1884db284c462349714c734d8661dd

[2008] EWCA Crim 365

EWCA_Crim_365

2008-02-07

crown_court

No: 200702965 B1; 200703470 B1 Neutral Citation Number: [2008] EWCA Crim 365 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 7th February 2008 B e f o r e : LORD JUSTICE LATHAM (Vice President of the Court of Appeal Criminal Division) MR JUSTICE FIELD SIR PETER CRESSWELL - - - - - - - - - - - - - - - - R E G I N A v "B" "S" - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merri

No: 200702965 B1; 200703470 B1 Neutral Citation Number: [2008] EWCA Crim 365 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 7th February 2008 B e f o r e : LORD JUSTICE LATHAM (Vice President of the Court of Appeal Criminal Division) MR JUSTICE FIELD SIR PETER CRESSWELL - - - - - - - - - - - - - - - - R E G I N A v "B" "S" - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Miss C Ryan appeared on behalf of the Appellant "B " Mr T Bowden appeared on behalf of the Appellant "S " Mr R Miric appeared on behalf of the Crown Mr H Keith appeared as Advocate to the Court - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE LATHAM: We have before us today appeals against sentence from both of the appellants and an appeal against conviction by one, that is "B". As far as the appeals against sentence are concerned, both have now been abandoned and we say no more about those. We turn then to the appeal against conviction by the appellant B. 2. He, together with the co-appellant "S" and one other, appeared for trial at the Wood Green Crown Court, where on 4th May 2007 the appellant B was convicted of attempted robbery, the appellant S was convicted of affray and a co-accused, "D", was also convicted of affray. The co-appellant S and the co-accused D were both acquitted of the count of attempted robbery which they faced in conjunction with the appellant B. B appeals against conviction by leave of the single judge. 3. The facts out of which the charges arose concerned events on a bus on 7th February 2006. Both the appellants were school boys. On 7th February 2006 they were on the top deck of a bus together with the victim in relation to the attempted robbery, who was a 14 year old boy. The victim was sitting with his cousin and his sister a few seats away. B, S and D were also on the top deck of the bus. 4. The prosecution case was that B approached the victim and his cousin and asked if he had any music on his phone. The victim said he did not have a phone on him. B then searched his pockets to verify it and took out from the pocket a bus pass, which the victim then took back and put back in his pocket. There was then an argument. The victim stood up. B then headbutted him; and it was after that that B threatened, according to the prosecution, the victim that he would suffer violence if he did not hand over his belongings. The threats, it was said, were that S and D would harm him. That was essentially the basis of the prosecution case. 5. The incident ended when the victim managed to get up and get off the bus. He was in fact followed off the bus by B and others and there were further altercations, but they add nothing to the important part of the story which related to the allegation giving rise to the charge of attempted robbery. 6. The defence was simply that, whilst accepting that there had been an incident involving an altercation between the appellant and B during the course of B had headbutted the victim, he had only done so because when the victim stood up he, B, was concerned that he might be attacked and he was therefore simply acting in self-defence. He denied that there was any question of his having threatened the victim so as to justify a count of attempted robbery. 7. As far as the prosecution case was concerned, it was essentially based on the evidence of the victim, the victim's cousin and the victim's sister. 8. As far as the other evidence in the case was concerned, it included evidence relating to the appellant S, who had been the first of the three eventual defendants to have been interviewed by the police. In the course of that interview, which was recorded, the appellant S talked about a conversation which suggested that B was interested in knowing what the victim had on him and described during the course of the incident "the boy [referring to B] that was robbing the next boy", who was the victim. There were other answers in which the appellant S indicated that there was violence on the part of B against the victim. 9. During the course of the appellant S's cross-examination he was not surprisingly asked about those parts of his interview in which he appeared to have been saying that B had indeed been seeking to rob the victim and had been violent towards him. The appellant S, whilst admitting that he had said those things (which he could hardly deny because they were on the recording), said that was not his recollection now. He could not remember anything that had happened before B headbutted the victim and that nothing thereafter had happened which could have been construed as robbery. 10. The question then arose, apparently at the instigation of the co-accused D but also with the support of Miss Ryan acting on behalf of the appellant B, as to how those questions and answers and the contents of the interview should be treated by the judge. The judge made a ruling, it would appear not having heard full argument, in the following terms: "Let me make it absolutely plain by way of ruling, Mr [S] has given evidence. What he says in his interview becomes evidence in the case against all defendants, in those circumstances, because he's adopted his interview, in the sense that he has accepted that he said to the police what he is recorded as saying; there is no dispute about that, there hardly could be." 11. In those circumstances, when it came to summing-up the case to the jury, the judge directed them in accordance with his ruling to the effect that what the appellant S had said to the police was evidence which they were entitled to consider in the prosecution case both against the appellant B and the co-accused D, and it was entirely a matter for the jury to determine the extent to which it supported the prosecution's case. At a subsequent stage the judge then repeated that direction but in the following terms: "[S], of course, knew he might be a potential defendant in this case, that he might have his own interests in distancing himself from these events. So, even then when I told you when dealing with the prosecution case that it's all evidence in the case, what [S] said to the police in his interview, and you can consider it against and for all defendants, take special caution in using it in any way against [D]; and exactly the same goes for [B], because of the possibility that [S] would have had his own interests in distancing himself from [D] and [B] so as these events are concerned." 12. The first and main ground of appeal to this court in relation to this conviction is that the judge was not entitled to make the ruling that the contents of the interviews were admissible, and that, if and insofar as he was entitled to make that ruling, he failed to direct the jury adequately as to the dangers of relying on the contents of the interview. 13. It is and always has been trite law that if in a trial a particular defendant adopts, in the sense of agrees to and accepts, the contents of an interview to the police, that immediately makes the contents of the interview part of his evidence. That is pure common sense; it is part of his oral evidence to the jury. But when one uses the phrase "adopting his interview", that does not mean, as the judge appears to consider here, accepting that that is what he said; it means making the contents of the interview part of his evidence, in the sense of agreeing that that is what happened. 14. What does not appear to have happened in this case was a proper appreciation of the status of the contents of the interview in the light of the provisions of the Criminal Justice Act 2003 . The statements made by the appellant S in interview constitute hearsay evidence under section 114 and could be considered for admission before the jury in the context of the code contained in section 114. Further, because the appellant stated that he could not remember the events which he had talked about in interview, the contents of the interview also constituted previous inconsistent statements within the meaning of section 119 of the 2003 Act and were accordingly admissible in accordance with the provisions of that section, but subject always to the provisions of section 78 of the Police and Criminal Evidence Act and section 126 of the 2003 Act . 15. It follows that there is validity in the criticism made by Miss Ryan on behalf of this appellant as to the way in which this evidence was admitted by the judge, in particular the fact that because he did not consider the provisions of section 114, section 119, section 126 and section 78 of the Police and Criminal Evidence Act, he did not apply his mind to the safeguards contained within that code relating to the admissibility of, on the one hand, hearsay evidence and, on the other hand, previous inconsistent statements. 16. The question therefore arises as to what we should do about that failure by the judge to deal with the matter properly. In full submissions which have been put before us by Mr Keith as the Advocate to the Court, for which we are extremely grateful and which, if we may say so, set out impeccably the history of the provisions with which we are concerned, he submits that the judge was clearly wrong as a matter of law in believing that the material could be admitted on the basis that he set out in his ruling. He submits that the material was clearly admissible under section 119 and also under section 114, subject to the fact that the judge neither considered section 114(2) nor the other provisions to which we have referred which provide the safety net for admissibility of what are essentially hearsay statements. He submits, however, that in the context of this case there was really only one answer if one applied those safeguards, and that was that it was appropriate to admit those statements. 17. We entirely agree. It follows that insofar as the statements were admitted on the wrong basis, that does not affect and cannot affect the safety of this conviction. Accordingly, we dismiss the appeal insofar as it is based upon that ground. 18. We turn then to the second ground upon which Miss Ryan relies in support of the appeal against conviction, which is to the effect that the judge failed to give to the jury any proper or sufficient help in order to determine the extent to which they could and should rely on that material. We have already set out a significant passage in the summing-up in which the judge did give, in our view, a proper warning to the jury as to the dangers of relying upon that material, and there is no basis upon which we could say that the verdict of the jury was unsafe on the basis that the judge had not properly provided such a warning. 19. The third basis upon which Miss Ryan seeks to support this appeal against conviction is that, in the course of dealing with the interview and its contents, the judge considered that it was appropriate to give to the jury a Lucas direction on the basis that they might conclude that the appellant S had been lying in relation to the account that he gave to the jury that he did not know what had happened before the victim had been the subject of the headbutt. Miss Ryan submits that, looking at it at least from the perspective of the appellant B, that produced potential unfairness to him in that it might have redounded to his discredit. 20. The fact is that the judge was perfectly entitled to, although not necessarily in these circumstances bound to, give a Lucas direction in relation to the two inconsistent accounts that the appellant S had apparently given. The direction that he gave was clearly intended to indicate to the jury that the mere fact that they had come to the conclusion that the appellant S had been lying to them, in saying that he did not know what happened before the headbutt, that was not in itself to be taken as justifying a finding of guilt. That is and was a proper direction intended to prevent the mischief which the Lucas direction is intended to prevent, that is the jury concluding that merely because a defendant has lied, that of itself means that he must be guilty. It was not intended to and properly and fairly read does not in fact in any way affect the jury's consideration of the guilt of B. It is inevitable that on occasions there will be directions given by a judge perfectly properly in the course of the summing-up which may have a knock-on effect in relation to another co-defendant, but that is the consequence of joint trials, but in this case, as we say fairly read, we do not consider that the direction that the judge gave was in any way detrimental to the appellant B's case. 21. It follows that there is nothing in the grounds of appeal which have been argued by Miss Ryan which in any way, in our view, undermines the safety of this conviction. We dismiss the appeal accordingly.

2008_02_07-1360.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/365/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/365

28c3adaea6d4e47ff25823fce499ff821747a96ee84651ea3c78b9f98486ff96

[2005] EWCA Crim 530

EWCA_Crim_530

2005-03-09

supreme_court

Neutral Citation Number: [2005] EWCA Crim 530 Case No:(1) 2002/7211/X4 (2) 2004/5542/A5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE QUEEN’S BENCH DIVISION (1) HER HON JUDGE M-J MOWAT OXFORD CROWN COURT AND (2) HIS HON JUDGE COTTLE EXETER CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/03/2005 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE GRIGSON and MR JUSTICE GROSS - - - - - - - - - - - - - - - - - - - - - Bet

Neutral Citation Number: [2005] EWCA Crim 530 Case No:(1) 2002/7211/X4 (2) 2004/5542/A5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE QUEEN’S BENCH DIVISION (1) HER HON JUDGE M-J MOWAT OXFORD CROWN COURT AND (2) HIS HON JUDGE COTTLE EXETER CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/03/2005 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE GRIGSON and MR JUSTICE GROSS - - - - - - - - - - - - - - - - - - - - - Between : (1) DAVID TOVEY & (2) PETER JOHN SMITH Appellant - and - R Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (1) Mr Edward Fenner (instructed by Coninghams Solicitors, Twickenham ) for the Appellant Tovey (2) Mr Stephen Mooney (instructed by ) for the Appellant Smith Mr Mark Ellison (instructed by the Crown Prosecution Service) for the Respondent Hearing dates : 7 February 2005 - - - - - - - - - - - - - - - - - - - - - Judgment Background 1. There are, before this court, two appeals. The first is made by Peter John Smith. His case has been referred to this Court by the Criminal Cases Review Commission (“CCRC”). He was convicted on 4 January 2002 after a trial on three counts of a four-count indictment. The counts for which he was convicted were counts of indecent assault, contrary to s.14 (1) of the Sexual Offences Act 1956 on the victim, a child called CD, on different dates when she was respectively aged under eight, under nine and under eleven years of age. He was acquitted of a fourth count, which alleged indecency with the same child, contrary to s.1(1) of the Indecency with Children Act 1960 . He was sentenced to three years’ imprisonment on count 1, five years’ imprisonment on count 2 and three years’ imprisonment on count 4. All the sentences were concurrent. When sentencing, the trial judge, His Honour Judge Cottle, said: “Count 2 is the count that sets the tariff, it is the sample count of repeated indecent assaults over a substantial period of years. On that count the sentence will be five years.” 2. There was an application for leave to appeal against the sentence on the ground that the length of the sentence was manifestly excessive. This was refused by the single judge on 17 June 2002 and not renewed. 3. The reference is made by the CCRC because it is contended that, as a matter of law, HHJ Cottle was not entitled when sentencing Smith to treat count 2 as a “sample count of repeated indecent assaults”. 4. The second appeal is made by David Tovey. He pleaded guilty to 9 counts (counts 1 to 9) charging offences of possessing and making explosive substances, contrary to ss.1 and 5 of the Explosive Substances Act 1883 (counts 1 to 3) and unlawful possession of prohibited, disguised and altered weapons and ammunition contrary to s.1 and s.5 of the Fire Arms Act 1968 (counts 4 to 9). He was also convicted, after a trial on 3 October 2002, of two further counts (counts 10 and 11) of racially aggravated criminal damage to property contrary to s.30 of the Crime and Disorder Act 1998 . 5. Counts 1 to 3, charged under s.4 of the 1883 Act, were said by the prosecution to be sample counts to reflect the substantial body of explosive substances that were found at Tovey’s home as specified in appendix A to the prosecution’s note on sentence. In addition, the prosecution presented counts 4 to 9 as sample counts, reflecting the substantial quantities of firearms and ammunition specified found in his home as specified in appendix B to the same note. In relation to those counts, it was apparently accepted by Tovey that counts 1 to 9 were sample counts of the wider offending described in appendices A and B, and no issue is raised on the appeal as to the judge’s right to sentence on that basis. 6. Counts 10 and 11 were counts alleging racially aggravated criminal damage, on two specific occasions. The prosecution’s case was that there had been a total of 17 separate, but strikingly similar, incidents of criminal damage involving racist graffiti in public lavatories in the Witney area of Oxfordshire between 6 August 2001 and 9 January 2002. Each occurrence was racially motivated and part of a campaign intended to engender hatred by white against black-skinned people. During the trial before Her Honour Judge Mowat, evidence of all the instances of damage was called as part of the prosecution case, and the prosecution presented counts 10 and 11 as sample counts. The appellant denied being responsible for any criminal damage and made no admission of any such offences after he was convicted by the jury. However, no objection was taken to evidence of occasions not covered by the two counts being given at the trial. In respect of counts 1 to 9, Tovey was sentenced to different periods of imprisonment to run concurrently, which totalled 8 years’ imprisonment. In respect of counts 10 and 11, he was sentenced to three years’ imprisonment to run concurrently with each other, but consecutively to the sentence on counts 1 to 9. 7. In her sentencing remarks in respect of counts 10 and 11, the trial judge said: “The trial proceeded on the uncontested basis that the evidence of all 17 incidents was relevant and admissible. There really was, in my view in this case, a striking similarity between all the offences – that phrase much used by lawyers was utterly apt in this particular case. I am well aware of the authority that says a man may be sentenced only for crimes he has admitted or crimes of which he has been convicted, but in my view to sentence on that basis in this particular case for just two out of 17 incidents would be such an affront to common sense that I am not prepared to do it, and I sentence on the last two counts on the basis that they are two specimens of the 17.” 8. The appellant’s application for leave to appeal came before this Court on 23 September 2004 presided over by Lord Justice Hooper. He said, when giving leave to appeal, that he would not have been “minded to grant leave to appeal but for one point made by Mr Fenner on behalf of David Tovey.” He then referred to the sentencing remarks of the trial judge and added that it is submitted that the judge was wrong to take that approach, particularly in the light of, R v Canavan [1998] 1 Cr App R 70 and R v Clark [996] 2 Cr App R (S) 351. Hooper LJ added that “it appears to us on this renewed application, it was common ground that the same person was responsible for all the graffiti found in the different premises. Nonetheless it seems to us arguable that the judge was not entitled to take the other 15 (offences) into account”. 9. In these circumstances, Hooper LJ thought that the appeals of Smith and Tovey would provide useful vehicles to enable this Court to look again at the proper method of sentencing where sample offences are charged and it is alleged that there has been multiple offending by the defendant, this being a subject which has caused very considerable practical problems for the prosecution and trial judges when sentencing. The problem has received the attention of the Law Commission and is the subject of a report by the Commission entitled “Effective Prosecution of Multiple Offending” (presented to Parliament in October 2002 - Law Commission No. 277, CM 5609). 10. In their report, the Commission considered the relevant authorities, including the cases of Clark and Canavan to which we have made reference. The report of the Commission has an executive summary. Paragraphs 2 to 4 of the summary state: “2. The problems which we have sought to address here arise in cases where the offending conduct of the defendant is repeated many times – too many individual offences to be accommodated in a single trial. Formerly, such offending was dealt with by way of an indictment charging offences which were regarded as specimens of a wider range of offending. This pragmatic arrangement was thrown into disarray by the decision of the Court of Appeal in [ Canavan ]. In that case, Lord Bingham LCJ held that it offended a fundamental principle of sentencing for the defendant to be sentenced not only for the four specific offences of which he has been convicted after a trial, but also for other offences of which the four were specimens; offences of which the defendant had been neither convicted, nor to which he had pleaded guilty nor agreed to have taken into consideration. 3. The logic and correctness in principle of that decision cannot be faulted and we do not seek to do so. The decision does, however, pose an intractable dilemma for prosecutors and the Courts in cases such as multiple thefts and multiple frauds. In essence, it counter-poses the inability of a Court to deal with an indictment with hundreds of separate counts with the inability to sentence for the totality of offending in the absence of a decision on each instance of offending. The problem is an important one, because the consequence of the impracticability of prosecuting the full extent of the dishonest offending in such cases is that the vast majority of such offending will not be prosecuted and the offenders will escape the appropriate sanction. We have been told that the practice of Fraud Squads faced with this problem is to charge merely a handful of offences, making no attempt to reflect the full criminality in any given case. Clearly, this is not a desirable solution. From the judiciary, we have heard that the present law is found to be “pedantic and unworkable” and the senior judges, whom we have consulted, recognise that “very real and inherent difficulties” exist. 4. Under the present system (where there is a limit to the number of separate counts, each containing a single offence that can be managed within a jury trial) it is not possible to give full respect to each of the following two fundamental principles. To some degree, one is bound to yield to the other. The principles are: i) The defendant should only be sentenced for that which they have admitted, or which has been proved following a trial in which both sides can be examined on the evidence. ii) It should be possible to sentence for the totality of an individual’s offending, the defendant should not escape just punishment because the procedure cannot accommodate this.” 11. The Commission went on to identify principles relating to sentencing which need to be acknowledged. Those principles are: i) that all issues that go to guilt must, if not admitted, be proved to a jury/magistrate. ii) there are strict limitations on the inclusion of more than one offence in any single charge – count. iii) there are limits to the number of separate counts or charges that can be managed within a trial. 12. After the completion of their research and investigations, which included looking at the situation in other common law and Commonwealth jurisdictions, the Commission stated that they had been unable to find any single solution to this complex problem. However, they made three separate recommendations, which they regarded as addressing the three constraints that they had identified. The recommendations were: “(1) We recommend the extension of the ambit of the offences of Fraudulent Trading in section 458 of the Companies Act 1985 , to the non-corporate fraudulent trader. This would allow an individual to be prosecuted in a single count for the activity of fraudulent trading, although that activity may be made up of a number of otherwise discrete offences. (2) Where a defendant has been indicted in the Crown Court on a count citing conduct which under existing law may be regarded as a “continuous offence”, we recommend the use of special verdicts as a means of better informing judges, for the purpose of sentencing, of the extent of offending of which the jury is sure. (3) Where there are allegations of repetitious offending which are not apt to be described as a continuous offence but which, prior to Kidd , could have been dealt with by means of specimen counts we recommend a two stage trial procedure. The first stage of the trial will take place before judge and jury in the normal way, on an indictment containing specimen counts. In the event of conviction on one or more counts, the second stage of the trial may follow, in which the defendant would be tried by judge alone. The judge will, at that stage, determine question of guilt in respect of any scheduled offences linked, at a pre-trial hearing, to a specimen count of which the defendant has been convicted.” 13. We were greatly assisted by the argument in this case. This is particularly true of the argument advanced by Mr Ellison on behalf of the Crown. As part of his submissions, he had prepared for the Court a substantial skeleton argument which analysed all the relevant cases. The analysis covered those cases which had supported what could be described as the previous practice of relying on a specimen count to cover a number of offences. He also referred to the cases post- Canavan which revealed the problems arising out of that decision (which were greater than that Court had anticipated) and the attempts which had been made to overcome those difficulties on the facts of particular cases. 14. Having studied that analysis, we do not feel that it is necessary for the purposes of this judgment to repeat Mr Ellison’s recital of the authorities since we are satisfied that the judgment of the then Lord Chief Justice, Lord Bingham of Cornhill, is, as a matter of principle, correct and should be applied. 15. The approach, therefore, is that identified by Lord Bingham in Canavan at p. 245 - 246: “[The defendant] may be sentenced only for an offence proved against him (by admission or verdict) or which he has admitted and asked the court to take into consideration when passing sentence: see Anderson [1978] A.C. 964. If, as we think, these are basic principles underlying the administration of the criminal law, it is not easy to see how a defendant can lawfully be punished for offences for which he has not been indicted and which he has denied or declined to admit. It is said that the trial judge, in the light of the jury’s verdict, can form his own judgment of the evidence he has heard on the extent of the offending conduct beyond the instances specified in individual courts. But this, as it was put in Huchison (1972) 56 Cr.App.R. 307 at 309; [1972] W.L.R. 398 at 400 is to “deprive the appellant of his right to trial by jury in respect of the other alleged offences”. Unless such other offences are admitted, such deprivation cannot in our view be consistent with principle.” 16. This approach is not to be qualified based on reasonable inferences which the judge can draw from the evidence which he has heard. This Court in Canavan clearly appreciated that their decision would mean that prosecuting authorities would need to include more counts in their indictments, so that there would still be proof of sufficient criminality to enable the Court to pass an appropriate sentence, even without treating the counts as samples. They indicated that they did not “think this need be unduly burdensome or render the trial unmanageable”. 17. The Court in Canavan were dealing with the sections concerning sentencing contained in the Criminal Justice Act 1991 . At the time, that Tovey and Smith were tried (2002), the applicable statutory provisions on sentencing were those contained in the Powers of Criminal Courts (Sentencing) Act 2000 ss.79 (2) , 80(2) and 161(1). The most recent provisions are ss.153 and 154 of the Criminal Justice Act 2003 which will replace ss.79 and 80 of the 2000 Act . The difference in the language contained in the provisions does not affect those issues before us. 18. In R v Cheryl Evans [2000] 1 Cr App R (S) 144, this Court drew attention to the fact that, in that case, there would need to be 200 or more counts to reflect the full extent of the financial gain that the offender had obtained. The Court indicated that if an indictment were to be drafted containing that number of counts, it would be likely to prove unmanageable if tried by a jury. Moreover, they also indicated that it would now be unrealistic to expect a defendant to ask for other offences to be taken into consideration because to acknowledge the full extent of the fraud would be likely to result in heavier sentence. The Court justifiably regarded this situation as unsatisfactory. The First Recommendation of the Law Commission 19. This recommendation to improve the situation need not detain us. At this stage, it is a recommendation which appears to us to be sensible, but has not yet been implemented by the legislature providing the appropriate legislation. The Second Recommendation of the Law Commission 20. We were referred to Barton v DPP [2001] EWHC Admin 223 . In that case, the defendant appealed by way of case stated against the Stipendiary Magistrates’ decision that an information alleging theft of £1,338.23 over a period of years did not offend against the rule that an information should only allege a single offence. The evidence in support of the charge indicated that there had been 94 takings from the cash register covered by debit entries. The Divisional Court (Kennedy LJ and Astill J) reviewed the authorities on “continuous offences”. Despite the fact that the individual appropriations were each capable of being separately identified, the Divisional Court concluded that it was permissible to charge the whole course of conduct as a continuous offence because the defendant had no specific explanation for individual takings and put forward the same defence for all takings. The Magistrate accordingly was in a position to disregard any amount that he was unsure that the defendant had taken. As Kennedy LJ said: “Here the prosecution’s case was, we understand, set out in a schedule with dates and amounts indicating what was involved. Undoubtedly, each line in the schedule could have been charged as a separate offence, but had they been so charged, on average the amount involved would have been about £15. Even if there had been 10 informations, the amount would still be under £200. It simply would not represent the overall criminality, which, as we have already indicated, amounted to a sum in excess of £1300. Specimen counts or specimen informations are no longer a possibility, in the light of the relatively recent decisions of this Court and of the Court of Appeal, Criminal Division. To have 94 separate informations would have rightly been regarded as oppressive.” 21. In Attorney General’s Reference No. 82 of 2002 [2003] 2 Cr App R (S) 115, this Court, presided over by the Vice-President, Rose LJ, who had been a member of the Court in Canavan , indicated that, provided that the admitted basis on which an offender pleads guilty embraces the wider course of conduct, then it was proper for a sentencing judge to proceed to pass sentence on that basis (paragraphs 24-30). 22. We have no difficulty with this approach of the Vice-President. If there is a clear acceptance by the offender that the Court can take into account the wider course of conduct, then that is the equivalent of an informal invitation to the Court to take into consideration other offences. There is no requirement to be excessively technical as long as there is a clear admission or finding of guilt. This is consistent with principle. 23. There are clear distinctions between trial by jury and trial by the judge who will also be responsible for sentencing. However, we do not consider that, as a matter of principle, this should make a difference. In Barton , it is clear from the judgment of Kennedy LJ that they were invited to consider numerous authorities. However, it appears to have been agreed by the lawyer for the appellant and the Director of Public Prosecution in that case that, while in principle it is normal to charge each alleged criminal act as a separate offence, there are occasions when this need not be done. 24. As to this there are two lines of authority. The first, dealing with a general deficiency and the second, with a “continuous offence”. So far as Magistrate’s Courts were concerned, it certainly appears that a more relaxed approach was adopted than in the Crown Court. In Jemmison v Priddle [1972] 56 Cr App R 229 , Lord Widgery CJ indicated that “it is legitimate to charge on a single information one activity even though the activity may involve more than one act”. That observation was approved by two members of the House of Lords in DPP v Merriman [1973] AC 584 . One of the judges who did so was Lord Diplock, who Kennedy LJ pointed out in Barton had said at p. 607: “The rule against duplicity… had always been applied in a practical, rather than a strictly analytical, way for the purpose of determining what constituted one offence. Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice as early as the eighteenth century to charge them in a single count of indictment. ” 25. Kennedy LJ also referred to a statement of Lord Roskill in Hodgetts v Chiltern District Council [1983] 2 AC 120 where he said at p.128a: “It is not an essential characteristic of a criminal offence that any prohibited act or omission, in order to constitute a single offence, should take place once and for all on a single day. It may take place, whether continuously or intermittently, over a period of time.” 26. Kennedy LJ also prayed in aid the comments of Professor John Smith as to the case of DPP v McCabe [1993] 157 JP 443 . Of that case, Professor John Smith said: “If a thief walks around a house putting a series of articles into his swag bag, it is clear that he commits a separate theft with each appropriation. He could be charged with theft of any one of the articles appropriated. But it makes sense and involves no unfairness to the offender if he is charged with a single theft of all the articles taken on that occasion. It is regarded as a single ‘activity’ and it is legitimate to charge one activity in a single information even though it may involve more than one act.” 27. Finally, Kennedy LJ drew support from a judgment of May LJ in Cullen v Jardine [1995] Crim LR 668, where 90 trees were felled without a licence over a period of three days. May LJ said: “It was entirely possible for magistrates to decide which trees were cut down illegally and which were not, and to impose penalties by reference to those findings. The mere fact that a number of issues may arise in the course of the trial does not turn one activity into two or more activities and thus render the information bad for duplicity… the question of duplicity is one of fact and degree…” 28. As we have seen, Kennedy LJ pointed out that to have 94 separate informations in his case would have been oppressive, and to even have had 10 informations would have been to establish only a sum under £200, whereas the level of overall criminality amounted to a sum in excess of £1,300 in that case. 29. It was a case where the defendant had no specific explanation to offer, which required the takings to be treated separately. The incidents were each set out in a schedule with dates and amounts indicating what was involved, the magistrate was able to, and did in fact, give credit for the amount that he was not satisfied had been taken, and it was the view of the Court that there was “no discernable prejudice and unfairness to the appellant in regarding this as a continuous offence”. 30. We are persuaded by the reasoning of Kennedy LJ that, in relation to trials in the Magistrates’ Court, the approach in Barton is perfectly acceptable. The approach should, however, as the Law Commission indicated, not be stretched further to cases where the evidence for the prosecution and the defence raises different issues in relation to different counts. As to the Crown Court, in the appropriate circumstances, the same approach could appropriately be applied. This would be subject to no unfairness being caused to the defendant. It is ensuring fairness to the defendant that is at the heart of the Canavan approach 31. However, unless resort was had to special verdicts, depending on the facts of a particular case, it would not be known if the jury were only satisfied that some and not other offences had been committed. Bearing in mind the complications that can arise from special verdicts, the approach in Barton can only safely be used if the case of both the prosecution and the defence was the same in respect of all the acts said to be part of the same activity. The Third Recommendation of the Law Commission 32. The third recommendation contained in the Law Commission report has been implemented by ss.17-21 of the Domestic Violence, Crimes and Victims Act 2004. When that Act is brought into force, it should alleviate the situation. However, the Act’s beneficial effects should not be overestimated. There are strict conditions for its use and it does deprive the defendant of his right to have a jury trial. In addition, it involves two trials, one by a jury and the other by a judge. Unless the normal approach to framing an indictment is abandoned, it could require a massive indictment, which would waste Court time if all the identical offences have to be put separately to the defendant and a verdict taken on each count. We suspect the threat of reliance by the prosecution on the provisions of the new Act will usually result in the defendant holding up his hand and pleading guilty to the additional counts. Other Solutions 33. In the course of argument, we did discuss other possible ways of alleviating the problems that undoubtedly arise. However, we have reluctantly come to the conclusion, that, subject to what we say hereafter, there is no substantive proposal that we can usefully make. We are, therefore, forced to reiterate the advice, which has been given frequently by this Court in the past. That is that in the majority of situations, the problem will be most satisfactorily alleviated by the appropriate framing of an indictment. In preparing the indictment, the prosecution should always have in mind in a situation of multiple offending, the need to provide the sentencing judge, assuming that the defendant pleads or is found guilty, with sufficient examples (and no more) of the offending to enable the judge to impose a sentence which properly reflects the offender’s criminal behaviour. For this purpose, in the case of multiple offending, there will usually be no need to have counts reflecting every offence. Indeed, the presence of more counts than necessary will only result in concurrent sentences. 34. It is also important to draft the counts that are included in the indictment so as to establish the period during which the offending occurred. The fact that the offences on which there are convictions occurred regularly over a significant period, will be very telling as to the criminality involved, even if the offences are separated by many months. It is true that, especially with offences involving money, the total sum obtained can be an important factor in sentencing. However, the scale of offending normally can be demonstrated by having counts that indicate the pattern of offending. The period over which offences have occurred can be as significant as the total sum involved. A different way of framing the indictment 35. The decision of the Divisional Court in Barton demonstrates the importance of not falling into the error of allowing technicalities, as to the framing indictments to obstruct the administration of justice. The purpose of an indictment is to enable the defendant to know the crimes on which he will be tried. The principles identified in Canavan were not concerned with technicalities but with the basic requirement that a person should only be sentenced for an offence, which has either been proved, or which he has admitted. 36. There are different reasons why an indictment should not be over-burdened with counts. Sometimes it will make the task of the jury too complex. Sometimes it will make the scale of the case unmanageable. There are, however, situations where the traditional way of framing an indictment means that the inclusion of the number of counts which is necessary to achieve a just sentence becomes administratively cumbersome. The defendant may be required to plead to too many offences. The jury may be required to bring in verdicts in respect of too many counts. The indictment can be difficult physically to handle. The evidence, however, in support of a great many offences may be limited, and if there was a way of overcoming the administrative difficulties, justice could be served without prejudicing the defendant in any way. In this connection, we are grateful to Helen Chaytor, Senior Lawyer in the Office of this Court who drew the attention of the Court to the terms of Rule 5(2) of the Indictment Rules 1971 which provides: “(2) an indictment for a specific offence shall not be open to objection in respect of its form if it is framed in accordance with a form of indictment for that offence for the time being approved by the Lord Chief Justice.” 37. It is possible that Rule 5(2) could be used so as to mitigate the practical problems that we have identified that can arise when there is a multiplicity of offences which occurred regularly over a period of time. 38. The majority of the requirements as to the framing of an indictment are contained in the Indictment Rules and accordingly are subject to rule 5(2) . However, s.3 of the Indictments Act 1915 contains statutory requirements which override the rules. S.3 provides: “(i) Every indictment shall contain and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge. (ii) Notwithstanding any rule of law or practice, an indictment shall, subject to the provisions of this Act, not be open to objection in respect of its form or contents if it is framed in accordance with the rules under this Act.” Any steps that have been taken would need to comply with s.3. 39. We now turn to the specific facts of the two appeals. We have already given an indication of the circumstances of both appeals but it is now necessary to set the circumstances out in more detail. Peter Smith Introduction 40. On 4 January 2002 at the Crown Court in Exeter (His Honour Judge Cottle) Smith, who contested his guilt, was convicted of three offences of indecent assault (Counts 1, 2 and 4.) He was acquitted of count3, an offence of indecency with a child. In each count the victim was a child called CD. He was sentenced on the same day: i) counts 1 and 4, to three years’ imprisonment on each, and on ii) count 2, to five years’ imprisonment. All sentences were to be concurrent, so his sentence was a total of five years’ imprisonment. The Allegation 41. The victim was the daughter of Smith’s next door neighbour. So close was the friendship between the families that the child called Smith ‘Uncle Pete’: he was regarded as an honorary grandfather. 42. The prosecution alleged that between the child’s sixth and eleventh birthdays, when they were alone together, either at his house or in her home, Smith indecently assaulted CD on many occasions. He did so by putting his hand on her vagina under her clothing. He would then lick his fingers. There was no attempt at penetration. He did not physically harm her, nor did he threaten her. He did tell her “It was their secret” and she should tell no one. 43. The offences came to light on 8 June 2001, when the child’s mother found the appellant and her daughter in a compromising position. The appellant denied any sort of indecency. He pleaded ‘not guilty’ and gave evidence at trial. The Indictment 44. Count 1 alleged an indecent assault on a day between 18 September 1996 and 18 September 1998, when CD was under the age of nine. Count 2 was in exactly the same terms. Count 4 alleged an indecent assault on 8 June 2001, when CD was under the age of 11. The child’s sixth birthday was on 18 September 1996. 45. The prosecution case was that the first count represented the first act of indecency, and that the fourth count represented the last. Count 2 was said to represent the many occasions spoken of by the child that occurred between those two events. 46. On any basis, this indictment was unsatisfactory given that, as the Judge said in sentencing, it was meant to reflect a series of indecent assaults between the child’s sixth birthday and 8 June 2001, when she was ten and three-quarters. 18 September 1998 was in fact her eighth birthday. 47. What the learned judge said when he passed sentence was this: “the picture that is painted by the evidence in this case and by those verdicts is that, from when C was about six or seven years of age until she was ten and three-quarters, you systematically and frequently abused her in just the way that she described on that video; it did not vary. Certainly there are worse cases of sexual abuse than this one in the sense that there was no actual penetration of her; but what you did was a terrible breach of trust that was placed in you to care for this girl. She was a little girl who looked upon you as a grandparent, and in doing what you did to her you destroyed something that was very precious to her. The details of a case like this are beyond the comprehension of most ordinary, decent people; and you must now pay for what you did. I take into account in assessing the length of the sentence that you must inevitably serve, your age, the fact that you are of previous good character; your health is not good, and you are a family man, and your family will miss you greatly; and you are a former prison officer who is about to enter the prison system in a very different role.” 48. We have no doubt that this is an accurate summary of the evidence. This was the picture that the indictment should have reflected. He then dealt with the effect of the sentence he was about to pass before saying: “Count 2 is the count that sets the tariff in this case; it is the sample count of repeated indecent assaults over a substantial period of years. On that count the sentence will be five years. On counts 1 and 4 the sentences will be three years, all the counts running concurrently – all the sentences running concurrently.” Conclusion 49. In passing sentences in those terms the learned judge was being entirely consistent with the evidence. However, it is clear that in so doing, he was acting inconsistently with the indictment as drafted and with the principle set out in Clark and Canavan . He was put in that position by what we feel constrained to describe as the inadequacy of the indictment. It would have been a simple task to draft an indictment, which reflected more accurately the full scope of this appellant’s culpability. We accept it would not be practical to have a count to represent every occasion of offending. 50. We suggest that it would be preferable if there had been 3 counts for each year over the period of the offending. 51. If the learned judge had had his attention drawn to Canavan he would have been bound to sentence on the basis of the three incidents of indecent assault and those three incidents only. This would not have represented his offending behaviour and is an illustration of the importance that must be attached to the framing of an indictment. 52. Whilst a sentence of five years’ imprisonment might have been justified for this conduct given the extensive period over which it took place, the gross breach of trust it represented, and the absence of a plea of guilty, such a sentence cannot be upheld if it represents (as we have found it must) three isolated incidents. One has only to look at some of the specific cases denoted in the Attorney General’s References 37, 38, 44, 54, 51, 53, 35, 40, 43, 45, 41, and 42 of 2003 [2003] EWCA Crim 2973 to see that the learned judge’s sentencing on counts 1 and 4 were sentences appropriate for this level of indecent assault. In our judgment, had he treated Count 2 as an individual offence, he would have passed a concurrent sentence of three years. 53. It follows that the sentence of 5 years on count 2 must be quashed and a sentence of three years substituted, all sentences to be concurrent. David Tovey Introduction 54. David Tovey is 37 years old. As we stated at the outset of this judgment on 3 October 2002, he was convicted by a jury after a trial in the Oxford Crown Court, on two counts of racially aggravated criminal damage (counts 10 and 11). He had pleaded guilty to 9 counts relating to the possession of weapons, ammunition and explosives (counts 1-9). On 22 November 2002, he was sentenced by HHJ Mowat to a total of 11 years’ imprisonment, comprising 8years’ imprisonment for the matters concerning weapons, ammunitions and explosives and 3years’ imprisonment, consecutive, in respect of the racially aggravated criminal damage. The sentence of eight years represented a sentence of eight years for the three counts concerning explosives, together with various lesser sentences relating to weapons and explosive, all these sentences being concurrent. Various other ancillary orders were also made. 55. Leave to appeal against sentence was initially refused by the single judge but was later granted by the full court on 23 September 2004. Although the appellant had faced and been convicted on two counts only of racially aggravated criminal damage, the judge had sentenced on the basis that the two counts were, in reality, “specimen counts”, comprising simply two incidents out of a total of 17 similar offences. As to the other 15 “offences”, no charges had been included in the indictment and the appellant had made no admission in that regard. Counsel for the appellant contended that the judge’s approach was wrong, in the light of the authorities to which reference has already been made in this judgment. Essentially, the full court took the view that, given the difficulties to which specimen counts gave rise, the case afforded an opportunity to revisit those authorities and hence gave leave. The Facts 56. Between 6 August 2001 and 9 January 2002, graffiti was found in toilets in Witney on 15 occasions, Charlbury once and Stratford-upon-Avon once. The graffiti appeared to be racist. It included wording offensive to whites such as “all whites are shit”. In all instances, the words were written in black with what appeared to be a marker pen; the words “BLACK POWA” appeared regularly; occasionally, the attack on the World Trade Centre on 11 September 2001 was “celebrated”. 57. A man fitting the appellant’s description was seen leaving some of the toilets in question and, in one of the toilets, a compact disc was found which the appellant had borrowed from Witney Library. 58. On 14 February 2002, as a result of police inquiries into the graffiti campaign and the eventual identification of the appellant, police went to the appellant’s home in Carterton to arrest him, on what became counts 10 and 11. Thereafter, an extensive search was made of the premises and an arsenal of explosives, weapons and ammunition were found, ultimately giving rise to counts 1-9. Books and videos were found on the subjects of firearms, explosives, poisons and “booby-traps”, together with military style clothing such as camouflage jackets and trousers. Also found was material indicating that the appellant was a racist. He had kept the registration numbers of cars which in the main belonged to blacks or Asians and, in some cases, their home addresses. When interviewed, his sister and those who knew him at the Witney Gun Club, said that they had heard the appellant make racist remarks and were aware that he had strong views that blacks and Asians should not be allowed into the country and those here should be “sent home”. 59. As to the course of the trial, counts 1-3 and 4-9 were presented by the prosecution as sample counts to reflect the substantial quantity of explosive substances, firearms and weapons found, as specified by the prosecution in two appendices attached to an Opening Note for Sentence. In this regard, it has been accepted by the appellant that counts 1-9 were samples of the wider offending specified in those appendices. Accordingly, no point arises on this appeal in connection with the use of counts 1-9 as sample counts. 60. As to counts 10-11, the prosecution case was that there had been a total of 17 separate but strikingly similar incidents of criminal damage involving racist graffiti in public lavatories, in the Witney area, over the relevant period of time. They amounted to a racially motivated campaign intended to engender hatred by white against black people. Evidence of all these incidents was called as part of the prosecution case and the specific allegations in counts 10 and 11 were presented by the prosecution as sample counts. At the time, trial counsel raised no objection to this course. For his part, the appellant denied being responsible for any of the criminal damage and made no admission in relation to the other 15 incidents after he was convicted by the jury. The issue was one of the identity of the person responsible which would be the same for all 17 incidents. Sentencing 61. By the time the sentencing stage had been reached, trial counsel for the appellant had reminded himself of the authorities (discussed above) disapproving of or circumscribing the use of specimen counts. Counsel’s position was now that a defendant could not lawfully be punished for offences for which he had not been indicted, and which he had denied or declined to admit. Given the course that the trial had followed, the judge was placed in an unenviable position. 62. When sentencing, the judge began with a careful review of the dramatically divergent cases on counts 1-9. In a nutshell, the prosecution contended that with the light shed on these counts by the appellant’s conviction on counts 10 and 11, given the right catalyst, he could well have formed the intention to use the arsenal. The defence, by contrast, argued that he was simply an eccentric, albeit one with an illegal fascination; the evidence belied any intention to use the weaponry. 63. In the event, the judge concluded that the appellant was secretive and with an unusual capacity to deceive. He had made a “cold and calculated” attempt to lie his way out of counts 10 and 11. He was also a racist; the fact that the appellant had a Chinese wife, a Jamaican girlfriend and various other relationships, did not disprove this; instead they provided evidence of “an attitude of arrogant superiority” on his part. The judge said: “I am fortified in this conclusion by the fact that it was, on his own evidence, in company with his white girlfriend of nine years’ standing, that he was driving around the countryside noting or getting her to note, the car numbers of a significant number of people who as it turned out were black or brown or dark looking. That someone could be responsible for or party to noting descriptions on such jottings like ‘nigs’, ‘niggers’, ‘Pakis’, ‘Paki bastard’, ‘black bastard’, signifies to me certainly emotions of gut racism or at the very least somebody taking pleasure in a private or shared episode of racist abuse.” 64. It was also significant that the appellant had applied to join the British National Party. 65. As to the graffiti, the judge concluded that they were meant to look as if they had been written by someone black or non-white, in sympathy with the terrorists who had perpetrated the World Trade Centre atrocity. The motive must have been to stir up fear, resentment and hatred in the white community; the aim was to create racial tension in the hope of exciting hostility against black or non-white people. 66. The appellant was not mentally ill but had an obsession with perceived grievances. The “graffiti campaign ” (emphasis added) suggested that the appellant was beginning to act out his fantasy life of a “lone commando”. Against this background, the judge concluded that though it would be quite wrong to say that the appellant was dreaming of, or preparing for, a one-man race war, the right catalyst might well provoke him into acting out his fantasy by way of an act of actual violence against property or persons. 67. The judge reminded herself that the appellant had not actually used his arsenal, or indeed completed any explosive device; the charges were of simple possession only. She also reminded herself of the appellant’s guilty plea to counts 1-9, but this counted for little, not least given the discovery of the items in his house. Her sentence on these counts was designed to reflect public anxiety about “guns, bombs and racially inflammatory words or deeds, whether the former be interconnected with the latter or not”. 68. Turning to counts 10-11, these were minimal in terms of financial loss or damage but “serious in their potential inflammatory effect”. The judge then made the remark already set out in paragraph 7 above. The Appeal 69. Mr Fenner, who did not appear at the trial, advanced, in summary, the following submissions. First, the sentence of 8 years’ imprisonment, in respect of the explosives, weapons and ammunition, was manifestly excessive in light of the fact that the arsenal was never used, the appellant’s plea and the fact that he was hitherto of good character. Secondly, it was wrong in principle for the judge to treat counts 10 and 11 as specimen counts. Thirdly, on the basis that counts 10 and 11 were no more than two individual counts of racially aggravated criminal damage, the sentence of 3 years’ imprisonment, consecutive, was manifestly excessive; contrast, for example, O’Brien [2003] EWCA Crim 302 , where, in a case concerning actual damage to property, a sentence of 14 months was reduced on appeal to one of 6 months. Conclusion 70. Counts 1-9: Notwithstanding Mr Fenner’s succinct submissions, in our judgment, no proper criticism is to be made of the judge’s sentence on these counts, essentially for the reasons she gave, which we have already summarised. The judge was entitled to conclude that the appellant was not simply a harmless eccentric. Possession of an arsenal including high-grade explosives and a Sten sub-machine gun amply warranted the sentence passed. On no view was it manifestly excessive. 71. Counts 10-11: here, we have great sympathy for the predicament in which the judge was placed by the course which the trial had followed. We also understand her observation as to common sense being affronted. However, for the reasons already given, her treatment of counts 10 and 11 as specimen or sample counts representing 17 offences, is unsustainable having regard to the terms of the indictment. 72. It does not, however, follow that the sentence for these counts must be reduced. True it is that they are to be approached as two individual counts. But, even as such, it is appropriate to have regard to the context. First, we have already highlighted the evidence of the appellant’s racism, including in particular the somewhat sinister car journey and the noting of the registration numbers of vehicles belonging to apparently non-white people. Secondly, the context includes the possession of the arsenal forming the subject of counts 1-9. Thirdly, taking counts 10 and 11 alone (not as specimens) but in the context we have already set out, it is permissible to infer that the appellant’s motive was to excite inter-communal tension and hostility. Accordingly, these counts have a wider impact than the (admittedly more serious physical) damage done in cases such as O’Brien . Against this background, it follows that it would be artificial and wrong to view counts 10 and 11 as nothing other than two trivial incidents of graffiti daubing; even putting the other 15 incidents out of our minds, counts 10 and 11 form part of a wider picture of an altogether more grave and disturbing nature. 73. In all these circumstances, though for reasons which differ from those given by the judge, we conclude that, the sentence of 3 years’ imprisonment concurrent for counts 10 and 11, but consecutive to the sentence passed in respect of counts 1-9, is justified and not manifestly excessive. 74. The appeal in the case of Tovey must be dismissed.

2005_03_09-466.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/530/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/530

e12361336f0ec73c47abf97c63b2360061693578d959a6141c57ef2237a4017c

[2005] EWCA Crim 3612

EWCA_Crim_3612

2005-12-21

crown_court

No: 200506110 A4 Neutral Citation Number: [2005] EWCA Crim 3612 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 21st December 2005 B E F O R E: LORD JUSTICE RICHARDS MR JUSTICE MCCOMBE HIS HONOUR JUDGE STEWART QC (Sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - R E G I N A -v- MAXIMUS JOHN BOWMAN - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2

No: 200506110 A4 Neutral Citation Number: [2005] EWCA Crim 3612 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 21st December 2005 B E F O R E: LORD JUSTICE RICHARDS MR JUSTICE MCCOMBE HIS HONOUR JUDGE STEWART QC (Sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - R E G I N A -v- MAXIMUS JOHN BOWMAN - - - - - - - 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 H CHARLTON appeared on behalf of the APPELLANT - - - - - - - J U D G M E N T (As approved by the Court) - - - - - - - Crown copyright© 1. MR JUSTICE MCCOMBE: On 14th October of this year, at the Crown Court at Croydon, this appellant pleaded guilty on re-arraignment to one offence of failing to notify a change of address as required by the Sexual Offences Act 2003 . On 21st November of this year he was sentenced by His Honour Judge Joseph to six months' imprisonment. He appeals against that sentence by leave of the single judge. 2. The facts were as follows. On 19th July 1993, at the Central Criminal Court, for one offence of rape, the appellant was sentenced to six years' imprisonment. Having been convicted of that offence, he was required to register his address and notify the police of any change within three days. The legislation is rather more complex than that but we need not dwell upon those complexities for the purposes of this appeal. 3. On 17th July 2005 the appellant attended Stoke Newington Police Station in relation to an entirely different matter. He filed a notification of address form and stated that he had been living at an address at Harfield Gardens in London E5 since 9th July of this year. At that time the address contained on the register was at premises at Buxhall Crescent, London E9. The police spoke to a lady who lived at the latter address, that is in London E9, and she stated that the appellant had in fact moved out of that property on 15th April of this year. When interviewed, the appellant confirmed that he indeed left Buxhall Crescent on 15th April. He had then slept rough until he moved to the Harfield Gardens address on 9th July. He notified the police of his new address on 17th July. 4. The appellant is now 46 years old, having been born on 10th June 1969. Prior to his conviction of rape in 1993, he had a poor criminal record. Since that time he has received two further convictions for relatively minor public order offences, but he had also had two previous convictions for this very offence of failing to notify. The first of these was on 3rd September 1998, when he was sentenced to 28 days' imprisonment, varied on appeal to seven days' imprisonment, and as recently as 21st March of this year, when he was fined £200 with seven days' imprisonment in default of payment. That last conviction was less than four weeks before he moved from the address on the register in April of this year. 5. The learned judge declined the suggestion that a pre-sentence report should be ordered. In passing sentence, the judge referred, as is obviously the case, that the appellant knew what his obligations under the law were and that for a period of three months he failed to notify the police where he was living. Homeless or not, said the judge, the appellant had an obligation, and a serious obligation for the protection of the public, to notify the police of where he could be found. The judge quite properly noted that this was the third time that the appellant had committed the offence and that the legislation was in place to protect people from those who had been convicted of offences such as that for which this appellant had been convicted in 1993. 6. The learned judge gave full credit for the guilty plea, he said, although it had not been made at the first opportunity. The learned judge took that view because there was some concern that the appellant might have had a proper defence to the charge in law. That arises out of the complexities of the legislation to which we have referred. 7. Clearly this appellant has now fallen foul of the notification requirements under the Act on three separate occasions. It is not necessary to dwell on precisely the reason that he fell foul of it on this occasion; it is clear that he did so. He should have erred on the side of caution by reporting to the police exactly what he was doing as soon as his circumstances changed. The court recognises, however, the complexities that can arise where, as in this case, the appellant was not of fixed abode and at times had been homeless. 8. In our view, a custodial sentence was inevitable, particularly having regard to the previous similar offences committed by the appellant. Moreover, that sentence clearly had to be of greater length than that imposed on the first occasion on which he committed the offence and substantially greater than the sentence that was perhaps rather mercifully passed on the second occasion. 9. However, all those matters considered, we take the view that the sentence in this case was too long, notwithstanding the appellant's past record and the matters which the learned judge quite correctly referred to in passing sentence. In our view, a sentence of two months' imprisonment should be substituted for the sentence of six months' imprisonment imposed in the Crown Court. To that extent this appeal is allowed. 10. LORD JUSTICE RICHARDS: What does that mean in terms of release? Is he entitled to immediate release? 11. MR CHARLTON: I would hope so, my Lord. This will be his 31st day. I do not know whether my Lord would indicate -- 12. LORD JUSTICE RICHARDS: I think we will leave it to the authorities to determine when the correct time for release is. Thank you. 13. MR CHARLTON: I am grateful, my Lord.

2005_12_21-671.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/3612/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/3612

c5bbf0d23ad9c87c3375d16b2523101a19d735a40aa5e522dba736c0b3613769

[2013] EWCA Crim 773

EWCA_Crim_773

2013-05-21

crown_court

Case No: 2013/01959B1 Neutral Citation Number: [2013] EWCA Crim 773 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM NOTTINGHAM CROWN COURT MRS JUSTICE THIRLWALL Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/05/2013 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE ROYCE MR JUSTICE GLOBE - - - - - - - - - - - - - - - - - - - - - Between : ITN News and Others Appellants - and - R Defendant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Case No: 2013/01959B1 Neutral Citation Number: [2013] EWCA Crim 773 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM NOTTINGHAM CROWN COURT MRS JUSTICE THIRLWALL Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/05/2013 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE ROYCE MR JUSTICE GLOBE - - - - - - - - - - - - - - - - - - - - - Between : ITN News and Others Appellants - and - R Defendant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms H Rogers QC and Mr C McCarthy for the Appellants Mr D Farrer QC and Mr J House for the Crown Miss G Irving QC for the ( Intervener on behalf of Lisa Willis, the Mother) Mr Ian Wise QC for Derby City Council (Intervener on behalf of the Children) Hearing dates: 1 st May 2013 - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice of England and Wales: 1. This is an application under s.159 of the Criminal Justice Act 1988 ( the 1988 Act ), alternatively an application under s.46(10) of the Youth Justice and Criminal Evidence Act 1999 ( the 1999 Act ) by a number of media organisations for leave to appeal against an order made by Thirlwall J at Nottingham Crown Court during the course of the notorious recent trial of Michael and Mairead Philpott and Paul Mosley. 2. Following the deaths of the six children of Michael and Mairead Philpott who were killed following a fire on 11 May 2012 in their home at 18 Victory Road, Derby, they were charged with manslaughter. In due course they were convicted by the jury. 3. One of the witnesses called by the prosecution was Lisa Willis (the mother). She had five children, four of them by Philpott. For several years she had lived at the same address, 18 Victoria Road, with Michael and Mairead Philpott. Several months before the fatal fire she had left that address. When she moved away from the area a dispute broke out between her and Philpott about the arrangements for the children. Philpott’s involvement in the fatal fire stemmed from a determination to demonstrate that the mother was unfit to care for the children, and so, the night before the case was listed for a hearing, the fire was started. The intention was that she should be blamed for it. Thus she was a crucial witness at the trial. 4. Long before the tragic events of May 2012, the life style of Michael Philpott and the women in his life, and his very large number of children, had been the subject of extensive media coverage and public interest. Photographs and images of the mother and her children appeared on television and in newspapers. She herself had appeared in three television programmes speaking about her relationship with Michael Philpott and the family’s living arrangements. 5. The first was the Jeremy Kyle show in 2006, entitled “Father to Fifteen … Wife and Girlfriend Pregnant Again”. The mother appeared with Michael and Mairead Philpott, answering questions about her relationship and the living arrangements before a live studio audience. 6. The second was “Tales of the Unaccepted – the Philpotts”. This programme was broadcast on ITV Central Television on 12 April 2007. The programme followed births of children to both Mairead Philpott and the mother of whom Michael Philpott was the father. The mother was filmed with her children. She spoke directly to the camera. The film showed the beginning of her labour at home and, after the birth of her baby in hospital, showed the baby handed to her immediately after the birth. 7. The third was “Ann Widdecombe vs the Benefit Culture”, broadcast on ITV 1 on 22 August 2009. This was an hour long documentary in which Ann Widdecombe MP explored and challenged the attitudes of the Philpott family, and the arrangements by which they were all living in the context of claims for benefits. The mother was seen from time to time throughout the documentary, and so were her children, and photographs of them all were widely published. 8. The events covered by the subsequent trial at Nottingham Crown Court attracted worldwide coverage and international interest. The coverage included images of the mother, which remain widely available on the internet, and on websites outside the jurisdiction. 9. Before the start of the trial, the Crown applied for and in accordance with s.23(1) of the 1999 Act was permitted the use of special measures. This took the form of protective screens when the mother gave evidence in court. The application was based on a statement from the mother herself, updated in oral submissions about her fearful state of mind. She was content to give her evidence, but had a number of concerns about the hearing. She was worried that her physical identity would be revealed at court. She had already taken measures to avoid any risk that anyone connected to Philpott should know of her whereabouts or know what she looked like. She was now living with her children in a house in an unknown location. She had changed their surnames and altered her appearance. If she gave open evidence she was scared “that someone will either see me and then make efforts to locate me and follow me to where I live with my children”. She said that she would tell the court the whole truth about the case, and continued that it would “be a lot easier if I cannot see Mick Philpott and he and his family and friends cannot see me”. She had been offered a number of “special measures”, but she did not wish to give evidence or answer questions by video. She wished to give evidence in court personally, but she would feel “much more comfortable and be able to give my evidence more freely” if she could be behind screens. Hence the application, supported by the Crown. 10. On 12 February 2013 an order made by Thirlwall J under s.4(2) of the Contempt of Court Act 1981 prohibited the publications of photographs of the mother or any of her five children until 5 March 2013. At the end of the day, the judge was asked whether, in the light of her order, it was permissible for newspapers or broadcast media to publish photographs of the mother and her children that evening, and in any event before she gave evidence. The judge gave a short ruling underlining that her concern was the “integrity of the criminal trial”. It was submitted to her by the Crown that any photographs appearing in the media just as she was about to give evidence would undermine the entire purpose of the order for special measures which had been made. Thirlwall J did not accept the entire breadth of the submission, but she recognised that the purpose of the order enabling the mother to give evidence behind a screen was that she would be able to give it away from the public gaze, and that public focus on her and her children would undermine her ability to give evidence. The judge noted that the publication of any such photographs would “torpedo her attempts not to be recognised, reinforcing her fears for herself and her children”. She therefore made an order postponing publication of any photographs of Lisa Willis or her children, and further ordered that any photographs that had already been published during the course of the hearing should be withdrawn. 11. The judge considered the impact of the order on the entitlement of the press to report court proceedings fairly and accurately. She concluded that written and verbal reports were sufficient to represent the public interest, and she could see no public interest in the publication of a photograph or photographs or images of the mother or her children. In any event if photographs of the mother were published the children would be immediately identified. 12. On 13 February, after an opportunity to consider the relevant statutory provisions overnight, Thirlwall J concluded that the order under s.4(2) of the Contempt of Court Act was, as she described it, “a rather clumsy and possibly erroneous route to preserve the position”. The proper route was via s.46 of the Youth Justice and Criminal Evidence Act 1999 . She was satisfied that the witness was eligible for protection within the context of the Act, and that the quality of her evidence would be diminished by reason of fear at being identified as a witness in the proceedings. The order reflected the logical consequence of the attempts being made by the mother to rebuild her life and without it, all her efforts would come to nothing. The order should therefore be made in the interests of justice. 13. The order made on the previous day was revoked, and replaced by an order under s.46 of the Youth Justice and Criminal Evidence Act 1999 . The order provided that: “(1) no photograph, pseudo photograph or other image of (a) Lisa Willis (b) Her children or any of them (with or without Lisa Willis) Shall be published in any way which connects them or any of them (whether through reports of these proceedings or otherwise howsoever) to the case of R v Michael Philpott , Mairead Philpott and Paul Mosley ”. The press and media were given liberty to apply for amendment or revocation of the order on 24 hours notice. 14. Immediately after the order was made, the mother began her evidence. So as to avoid any disruption of the trial, the media postponed their application for the revocation of the order until the end of the evidence, after closing speeches were underway. The evidence of the mother was given in open court, and was widely reported throughout the media. No one has suggested that the media was unable to report her evidence in meticulous detail, or inhibited, let alone prevented from doing so, by Thirlwall J’s order. 15. On 3 April the media application for revocation of the order was heard and dismissed. In her judgment next day Thirlwall J made clear that she could not, and that she did not believe that anyone listening to the case would, find it “easy to understand the purpose” of publication of photographs or film of the mother and her children. After considering submissions on behalf of the media and the Crown which in effect were repeated before us, she concluded that the jurisdiction to make the order prohibiting publication of the photographs was based on or created by s.46 of the 1999 Act , and that notwithstanding that an internet search would produce images of the mother on websites outside the jurisdiction, the order should not be revoked. She reflected on the Article 8 rights of the witness and the Article 10 rights of the press, without regard to the Article 8 rights to the children. She concluded that there was not “the slightest doubt” that such publication would have “a very damaging effect” on the mother and her children. Section 46 of the 1999 Act 16. Every court in England and Wales conducting criminal proceedings may make a reporting restriction order applicable to any adult who is a witness in the proceedings (other than a defendant). The protection of child witnesses is ensured by s.39 of the Children and Young Persons Act 1933 . 17. Section 46(6) defines a reporting direction as: “A direction that no matter relating to the witness shall during the witness’s life time be included in any publication if it is likely to lead members of the public to identify him as being a witness in the proceedings.” 18. Publication of the name and address of the witness, any educational establishment attended by the witness, the identity of any place of work, and “…(e) any still or moving picture of the witness” may be prevented. 19. The order may only be made in support of a witness eligible for statutory protection. The “eligibility” requires the court to be satisfied: “3(a) that the quality of evidence given by the witness, … is likely to be diminished by reason of fear or distress on the part of the witness in connection with being identified by members of the public as a witness in the proceedings”. 20. In deciding whether any particular witness qualifies for eligibility the court must: “(4) … take into account, in particular (a) the nature and alleged circumstances of the offence to which the proceedings relate; (b) the age of the witness; (c) such of the following matters as appear to the court to be relevant namely (i) the social and cultural background and ethnic origins of the witness (ii) the domestic and employment circumstances of the witness, and (iii) … (d) any behaviour towards the witness on the part of (i) the accused, (ii) members of the family or associates of the accused, or (iii)” In addition to these specific matters, the court must also “consider any views expressed by the witness”. 21. Provided the witness is eligible for protection and that it is appropriate for a reporting direction to be made, before making the order, the court must consider: “(8) … (a) whether it would be in the interest of justice to do so, and (b) the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of the proceedings”. 22. If the eligibility test is met, the court may also impose a reporting direction which is subject to “an excepting” directions, dispensing with restrictions which might otherwise be thought appropriate. Dealing with it broadly, the effect is that the court may limit the reporting direction, as it did here, to a photograph or film of the witness. In short the effect of any restriction should be limited to those which are reasonable bearing in mind the context of the public interest in the reporting of proceedings. 23. The reporting restriction may be revoked by the court of trial or an appellate court, that is “court dealing with an appeal … arising out of the proceedings …”. (s.46(12) The application 24. The first issue is to identify the basis on which Thirlwall J’s decision may be considered by this court. When she refused to revoke the restriction decision, the main submission was that the s.46 order was made without jurisdiction and that accordingly it should be revoked under s.46(10). There is no doubt that a reporting restriction may be revoked by the appellate court in any “proceedings” before this court. However, the present application, of course, is confined to the restriction order. The court is not otherwise concerned with any proceedings between any of the three defendants at trial and the Crown, or indeed any issue arising from it. 25. Section 159(1)(a) and (b) of the 1988 Act enable an applicant to apply to this court for leave against a reporting restriction order made in relation to a trial or indictment under s.4 or s.11 of the 1981 Act and s.58(7) and s.58(8) of the Criminal Procedure and Investigations Act 1996 . Section 159 goes on to provide that the application may also extend to: “… (b) any order restricting the access of the public to the whole or any part of a trial on indictment or to any proceedings ancillary to such a trial; and (c) any order restricting the publication of any report of the whole or any part of the trial on indictment or any such ancillary proceedings …” 26. These provisions are designed to enable the media or any member of the public aggrieved by an order restricting access to a trial in the Crown Court to invite this court to interfere with, amend or revoke the order. Given the importance attached to the principle that criminal justice should, so far as possible, be exercised in public, it should therefore be given the widest possible construction. In our judgment a reporting restriction within s.46 of the 1999 Act falls within the ambit of S.159(1)(c) of the 1988 Act , and does so even when the restriction on reporting is confined, as this order was, to photographs or film. If the order should not have been made, and in particular if there was no jurisdiction enabling the order to be made, it should be revoked whether or not any other proceedings are before this court. 27. In the event of an appeal against conviction or sentence (or indeed a Reference by the Attorney General) then, in accordance with s.46(12) of the 1999 Act the jurisdiction of the Court of Appeal to revoke any restriction or “excepting” order would be immediately engaged without the need for further reference to s.159 of the 1988 Act . However where there is no such appeal, but the media remains aggrieved by the restriction order, s.159 provides the route to a remedy. 28. The issues raised on behalf of the media merit attention in this court, and accordingly leave to appeal under s.159(1)(c) is granted. The decision 29. Stripped to essentials, the submission by Ms Heather Rogers QC is that the meaning given to reporting direction in s.46(6) did not extend to the order made by Thirlwall J, notwithstanding that the order itself was very limited in its scope, confined as it was to any photograph, pseudo photograph or other image of the mother and her children. Naturally enough, Ms Rogers began her submissions by underlining the importance of the principle of open justice. We agree, and need no anxious repetition of the many statements of principle to demonstrate the reasons why we do agree. Her next submission was that the Crown Court had no powers at common law to make any such order. The power to do so was contained in statute. We agree. She submitted that an order for special measures did not of itself justify the reporting direction, and that the reporting direction should not automatically follow any special measures order. Again, we agree. Section 46 provides a distinct power which may be exercised alongside a special measures direction, but also, separately from it. Eligibility for such a reporting restriction does not automatically follow from the need for special measures. It requires a distinct fact finding decision. Yet again, we agree. She suggested that the protection of the children of the adult witness did not arise in the context of s.46. These were issues better addressed, and more important, properly addressed, in family courts. Dealing with it generally, we immediately recognise the force of the submission that in relation to the identification of children (taken separately from that of their parent) the Family Division is normally the appropriate venue. Nevertheless the criminal courts must control their own processes, and the fact that the family court may protect the identity of the children, is not sufficient on its own to deprive the Crown Court of the jurisdiction under s.46. The eligibility conditions may be established as here, where publication of the photographs of her children would be likely to lead to the identification of the mother, and the risks would be likely to impact on the quality of the mother’s evidence at trial. As Mr David Farrer QC for the Crown observed, the order offered “reassurance to a witness to preserve the integrity of his or her evidence”. In our view reference in the order to the children was integral to the eligibility test as it applied to their mother. 30. The crucial difficulty is at the last stage of Ms Rogers’ submission. She submitted that the mother has already been identified by previous publications, television programmes, and the internet. Indeed the name of Lisa Willis, and her identification as the mother of children of whom Philpott is the father is effectively common knowledge. She gave her evidence as Lisa Willis. In that sense she was and is fully identified as a witness. 31. The difficulty with this submission arises from the reality that in the overwhelming majority of cases the “identity” of every witness is known. If the jurisdiction to make an s.46 order were restricted in the way suggested, the “eligibility” test would be virtually confined to the rare case of the anonymous witness. Anonymity, however, is an entirely distinct and extreme form of special measure for which a separate statutory system is in place. Without repeating s.46(7) it seems clear that it extends beyond the bare naming, that is the identifying, of the witness. Thus a still or moving picture of the witness may be prohibited if the “eligibility” test is satisfied, whether or not the name and identity of the witness is otherwise known. This approach is reinforced by analysis of the wide ranging “excepting” direction in s.46(9). This sub-section anticipates that the ambit of the reporting restriction may be much wider than the mere naming of the witness. It anticipates that the reporting restriction may impose substantial restrictions on reporting which, in the context of the public interest, are unreasonable. If Ms Rogers were right neither the provisions in s.46(7) nor those in s.46(9) would be necessary. As it is they demonstrate that the ambit of the reporting direction is much wider than she suggested, but s.46(9) also underlines that even when a reporting restriction is appropriate, it should be no wider than necessary to avoid any diminution in the quality of the evidence to be given by the witness. 32. In our judgment this order was appropriately made. The appeal is accordingly dismissed.

2013_05_21-3178.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/773/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/773

8b4c9b738181e0564defb5e01d2fa59e385e63ae1fc415e672819457fd4e2a30

[2011] EWCA Crim 893

EWCA_Crim_893

2011-04-14

crown_court

Neutral Citation Number: [2011] EWCA Crim 893 Case No: 201000122 B4 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT LINCOLN Mr RECORDER SAMPSON T20087118 Royal Courts of Justice Strand, London, WC2A 2LL Date: 14/04/2011 Before : LORD JUSTICE RIX MR JUSTICE RODERICK EVANS and HIS HONOUR JUDGE GORDON (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - DEENEY Ap

Neutral Citation Number: [2011] EWCA Crim 893 Case No: 201000122 B4 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT LINCOLN Mr RECORDER SAMPSON T20087118 Royal Courts of Justice Strand, London, WC2A 2LL Date: 14/04/2011 Before : LORD JUSTICE RIX MR JUSTICE RODERICK EVANS and HIS HONOUR JUDGE GORDON (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - DEENEY Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr M Hurst (instructed by Tracey Barlow Furniss & Co ) for the Appellant Miss E Harrison (instructed by Lincolnshire CPS ) for the Respondent Hearing dates : Monday 28 March 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Rix : 1. The difficulties which befell the trial at which John Deeney was convicted before Mr Recorder Sampson and a jury in the Crown Court at Lincoln on 11 December 2009 of two counts of wounding with intent to cause grievous bodily harm, and which have led to this appeal, arose out of the twin circumstances that the complainant on one of those two counts, one John Stephenson, was unwilling to give evidence at trial and the defendant, having dispensed with the services of a series of representatives, was defending himself. The essential question is whether those difficulties should have led to the aborting of the trial and whether the convictions are unsafe. The appellant was sentenced to imprisonment for public protection with a minimum term of eight years. The facts 2. On 21 June 2008, at about 9.40 pm or thereabouts, in the space of a few minutes, two men were knifed at the White Horse public house in Gainsborough. Both had been stabbed in the abdomen with a single thrust of a knife. The seriousness of the deep penetrating wounds was not immediately obvious. The two men were John Stephenson (the complainant on count 1) and his son-in-law William Jarrold (the complainant on count 2). Mr Stephenson refused to give evidence. Mr Jarrold did give evidence. The appellant, who was conducting his own defence, did not give evidence himself. He accepted that he was at the pub that evening, but briefly, and denied that he was responsible for the stabbings. 3. Mr Jarrold’s evidence was that he was standing in the doorway of the front entrance to the pub when his assailant came from within the pub, stabbed him without saying anything and walked off. He described the stabber as tall, shaven head, wearing a white shirt with stripes going down it, and jeans. He formally identified the appellant at an identification procedure on 4 July 2008. However, the appellant was not wearing a stripy shirt, as could be seen on CCTV stills. He was wearing a light-weight jacket. Otherwise, however, the description could be said to fit the appellant, a tall man, with a shaven head, in his fifties. Mr Jarrold’s evidence was also questioned on the ground that he had consumed 23 pints of lager in the period up to his stabbing, as well as an ecstasy tablet. 4. There were other difficulties with Mr Jarrold’s evidence. He said that one of the men he was speaking to in the pub entrance was Jim Turner: but the CCTV showed that Mr Turner, who had driven the appellant to the pub, had stayed in his car. The appellant cross-examined Mr Jarrold to this effect, and Mr Jarrold accepted that in this respect his recollection was at fault. He also accepted that at the hospital to which he had been taken he had told the staff that he had been stabbed by a stranger. He told the police that he did not know who had done it, because he did not want trouble, but his wife (Mr Stephenson’s daughter) had told him that he had to say who did it. 5. After the stabbing, Mr Jarrold said that Mr Stephenson came out of the pub and said “I’ve been stabbed”, to which he responded “I have, too.” 6. There was no other evidence about this stabbing, other than that of Sharon Store (see below). 7. The CCTV footage was presented to the court by DC Mockson, who had also prepared two chronologies by reference to it. The two chronologies covered the appellant’s two visits to the pub that evening. The first visit ran from 8.39 to 9.16 pm. The appellant could be seen outside talking to Mr Stephenson and Robert Scott (a friend of Mr Stephenson) for about ten minutes. He arrived and left in a taxi. The second visit started at 9.36 pm, when he arrived back in a blue Fiat with others, and entered the pub. He came back out two minutes later, then went inside again, then left, departing in the blue Fiat. By 9.42 pm, after the Fiat had gone, Mr Jarrold had come out and could be seen talking to Nigel O’Brien (who had come with the appellant in the blue Fiat but remained behind). Shortly thereafter, they are joined by Mr Stephenson. It is not clear from the judge’s summing up whether the CCTV shows Mr Jarrold together with the appellant at a time when the stabbing might have taken place. We cannot find a CCTV still in our papers which shows them together. 8. The evidence about the stabbing of Mr Stephenson came, in the absence of Mr Stephenson, in the form of circumstantial evidence from Laura Bee, a teacher who had a part-time job at the pub. She spoke of a man who was agitated and asked for the loan of a mobile telephone to speak to his son. That was the appellant, for in the course of cross-examining Ms Bee, he accepted that he had borrowed a phone to speak to his son. Moreover, his son’s number was stored on Ms Bee’s phone. 9. Ms Bee described the two complainants as being in a group of travellers, and said that there had been a slight verbal confrontation between the appellant and some of the travellers. However, she had said in her witness statement that she had not seen the appellant (“male 4” in her statement) doing anything, and she accepted this when it was put to her in cross-examination. 10. She said that the appellant had come into the pub and asked where the old man was. She feared trouble and followed him to the toilets, which he entered. She waited outside. She said that her colleague, Joanna Steadwood, was behind her, as was Nigel O’Brien. Then, the appellant came out and said, “You haven’t seen anything”, and put something in the waist of his trousers. He and Nigel O’Brien walked off. She went to the door of the men’s toilet when Mr Stephenson (“the old gent from the group of travellers”) came out. He was the only person in the toilet. He said “I’ve been stabbed”. She saw blood. She phoned for an ambulance and the police. She said that another man had been stabbed near the pub’s doorway, but she did not speak to Mr Jarrold. Ms Bee also identified the appellant at an identification procedure on 4 July 2008 as the man she said went into the toilet and came out of it just before she found that Mr Stephenson had been stabbed. 11. Joanna Steadwood’s evidence differed somewhat from Ms Bee’s. She heard Ms Bee shout for her and she went to the door which leads from the pub to the toilets, the kitchen and the beer garden. We should explain that on the other side of that door is a corridor. From that corridor there are further doors to the toilets, and also to the kitchen and the garden. Ms Steadwood’s evidence was that she always remained on the pub side of the door which led to that corridor. As she went towards that door, the appellant and Mr O’Brien came through it, from the corridor and into the pub. Ms Bee followed them, saying “Ring the ambulance”. She did not see anyone else in the area. She only became aware of one stabbing, but she did not see it. The judge pointed out to the jury the difference between Ms Bee’s and Ms Steadwood’s evidence. On this appeal the point is made, as it probably was at trial, that if Ms Bee was with Ms Steadwood on the pub side of the door which led to the corridor, then Mr Stephenson’s assailant could have come from and gone to the garden. The effect of Ms Bee’s evidence, on the other hand, was that the stabbing had occurred in the men’s toilet, that she was just outside it, and that only the appellant and Mr Stephenson were within it when Mr Stephenson was stabbed. 12. The only other evidence which we think it necessary to mention was that of Sharon Store, a customer at the pub that evening. She referred to a tall guy with bald hair, who is perhaps to be identified with the appellant, entering the pub with Mr O’Brien (whom she knew) and a third, smaller, man. The tall bald headed man was aggressive, pointing his finger. She thought there was going to be trouble and wanted to go. She also referred to a “bit of a scuffle at the door” and said that the tall man made an arm movement towards a man with a striped shirt, who can be identified as Mr Jarrold. He showed her a wound. She also said that the tall bald man told Ms Bee “You haven’t seen me”. However, she made no identification, positive or negative, and did not attend an identification procedure. 13. Since the appellant did not give evidence, the jury were left with his police interviews. In them he admitted presence, but denied complicity. He said that on his second visit he had been looking for Eugene (it seems that that is a reference to Eugene O’Brien, Nigel’s brother, but whether the jury knew that, we are not sure). He went into the pub, looked into the garden, and left. He said that he had never met the two complainants before. He might have seen them on his first visit, he might even have exchanged words with them, but he did not know them. Mr Stephenson’s witness statement 14. At the root of this appeal are the circumstances relating to Mr Stephenson’s witness statement. The jury never heard from Mr Stephenson because he was unwilling to give evidence, for either the prosecution or the defence. The appellant was therefore unable to cross-examine him, or to call him, which he said he wished to do. However, the prosecution were willing to have his witness statement read, but the appellant was unwilling to permit that to be done. His position, as will become clearer below, was that if he could neither cross-examine nor call Mr Stephenson, then he was unwilling to have his statement read, unwilling to give evidence himself, and unwilling to call any witnesses for the defence. In the circumstances, his defence was drastically curtailed. 15. Thus the jury did not know what Mr Stephenson had said to the police in his two statements. The first is dated 24 June 2008. He said that he was visiting his daughter and son-in-law in Gainsborough. He had had some twelve pints of lager in various pubs by the time of the events with which the trial was concerned. He described how he had visited the toilet in the White Horse and after exiting from it found himself in the corridor area which we have mentioned above. There he was approached by an unknown man who jabbed at him, and he felt a stinging sensation at the bottom of his stomach. He did not recognise him, and had never seen him before. The man said nothing and “proceeded to turn around and leave in the direction that he came from”. It was over in a couple of seconds: “I did not get a close look at him and feel unsure as to whether I would recognise him again if I saw him”. He described him as “white, about 5’10” tall, medium or thick set, aged in his late thirties”. He added that it did not occur to him that he had been stabbed until he had seen Mr Jarrold in the pub with blood on him, who told him: “He’s got you as well.” He then realised that he had been stabbed also. He said: “I still do not know the identity of my attacker to this day…I would like to press charges…I will support the police and any subsequent prosecution and will go to court if required.” 16. On 14 July 2008 Mr Stephenson attended an identification procedure but “failed to pick this defendant out as his attacker”, as the judge told the jury twice in his summing up. It would appear that this much was agreed between the prosecution and the appellant as an admission to go before the jury. 17. Mr Stephenson subsequently made a second witness statement, dated 6 September 2008. It was principally a victim personal statement, but it also appears that on that day he was shown the CCTV stills depicting the outside of the White Horse (where Mr Jarrold was stabbed). He knew by then that the appellant had been charged. The stills showed Mr Stephenson, Mr Jarrold, Robert Stott and the appellant talking together “for quite some time”. This must refer to the appellant’s first visit to the pub. Mr Stephenson stated that, despite the CCTV stills, he did not remember talking to the appellant, but went on: “I am absolutely sure that this is the man who stabbed me in the pub toilet”. At this appeal, the prosecution relies on this as an identification, as well as an assertion that the stabbing took place in the toilet as distinct from the corridor. 18. It will be obvious that Mr Stephenson’s first statement, had it been before the jury, would have assisted the defence considerably. He there made clear that his assailant was a stranger whom he had never seen before and would be unlikely to recognise again. This was despite the fact that CCTV stills could show that he had been in the company of the appellant earlier in the evening for some ten minutes. He described his assailant as “medium or thick set” which was not an accurate description of the tall, relatively slim appellant. He described his assailant as in his “late thirties”, while the appellant was in his fifties. He said, inconsistently with Ms Bee’s evidence, that he had been stabbed in the corridor and not in the toilet. He said nothing about Ms Bee being in that corridor. Had she been there, outside the toilet door, she would have seen the stabbing. If he had been stabbed in the corridor, the assailant could have come from and returned to the garden, without otherwise being seen. If he had been stabbed in the corridor, then Ms Steadwood’s evidence would have been promoted above that of Ms Bee’s. It is true that in his second statement he purported to recognise the appellant, who had by then been pointed out to him by the police as John Deeney, the man who had been charged, and also is recorded as referring to his stabbing taking place in the toilet: but it is not hard to see the problems with such evidence. The rulings at trial 19. The trial was originally due to take place in June 2009. On 16 June 2009 the matter was before HH Judge Machin. On that day the appellant was represented by Mr Veitch, (who was possibly standing in for Mr Dee), who explained to the judge that, although the appellant had no complaint or problem with his representation, he simply preferred to conduct his defence himself. In those circumstances, the judge had a discretion to allow or to refuse such an application for self-representation. The judge ruled as follows: “…I have come to the conclusion that Mr Deeney, by not being represented, may put himself at a very severe disadvantage. I am here to see justice done for the moment. The interests of justice, in my judgment, require that representation continues, it will continue and the matter may simply have to be reviewed on the day of trial.” 20. On 23 June 2009 the matter was back before Judge Machin for trial. Mr Dee was representing the appellant. It appeared that Mr Stephenson was refusing to attend trial as a witness. The judge said: “My present view…and I don’t say this so much by way of ruling as by way of comment – my present view is that there is force in what you say, Mr Dee, and it seems to me to be quite clear this is an absolutely no holds barred defence...And that it seems to me that there’s a serious possibility that the proper ventilation of his defence may be inhibited if Mr Stephenson does not give evidence…And so since it is the case – and I’m entirely persuaded of this proposition – that Stephenson can be got here…he should be got here, because it seems to me…there must be serious anxieties as to whether or not the prosecution in these circumstances to proceed without Mr Stephenson, at least by tendering him, might not amount to an abuse of process. I don’t say would but might…I’m quite clear that the trial will have to be delayed in its commencement and that Mr Stephenson must – and I repeat must – be got here. I have issued a warrant and it’s time it was executed…” The trial was therefore adjourned. 21. On 7 December 2009 the adjourned trial commenced before Mr Recorder Sampson. The appellant was by now representing himself. The appellant applied to the judge to confirm that count 2 (on which Mr Jarrold was the complainant) could not proceed in circumstances where count 1 could not proceed. The appellant submitted that Judge Machin had already ruled that count 1 could not proceed (in the absence of Mr Stephenson). The judge was prepared to assume that Judge Machin had made such a ruling, but he said: “I am the trial judge, Mr Deeney, and my ruling is that Mr Jarrold is able to give evidence ahead of Mr Stephenson and that will happen.” 22. Later that same day, the judge considered the position of Mr Stephenson, who had been brought unwillingly to a cell in the court precincts. The judge dealt with the matter as a potential contempt of court, and Mr Stephenson was represented by Mr Underwood. Mr Underwood told the judge that Mr Stephenson “will not give evidence and he does not wish to be brought into your Honour’s court”. By that time he had been sentenced to a five year term of imprisonment for an unspecified offence. His only explanation was a concern that an attack on him with an implement in the prison showers was somehow connected with this case, and that he was “in fear”. We are told that on 23 June 2009 before Judge Machin no very clear explanation of his unwillingness to give evidence was vouchsafed, and that the prosecution was not in a position to say that his unwillingness was truly owing to fear. However, none of that is at all clear to us on this appeal. At any rate, the judge told Mr Underwood that if Mr Stephenson did not give evidence he was likely to receive a sentence for contempt of court consecutive to the sentence he was then serving. Mr Underwood confirmed that Mr Stephenson understood that. 23. The judge then needed to prepare for Mr Stephenson to be brought into court to face the consequences of a potential finding of contempt. We are told that the judge was advised by security that Mr Stephenson and the appellant could not be confined in the same dock. The judge observed that “because of the practicalities of the situation”, the appellant would have to go down to the cells whilst he dealt with Mr Stephenson for contempt. The appellant then left the court. That is now a ground of appeal. 24. The judge then conducted summary proceedings for Mr Stephenson’s contempt of court, found him to be in contempt, but adjourned sentence. He directed that Mr Stephenson be brought back to court on each day of the trial, in order that he should have a chance to purge his contempt. 25. On 10 December 2009, with the appellant back in court, there was a further discussion about what Judge Machin had said on 23 June about proceeding with count 1 in the absence of Mr Stephenson. It will be recalled that on 7 December the appellant had submitted that Judge Machin had ruled that count 1 could not go ahead without the presence of Mr Stephenson to give evidence. Ms Harrison, who was appearing for the Crown, said that she had been checking the court log, from which it appeared that there had been a discussion on 23 June on that subject. As of 10 December, however, there was no transcript available, as there is now, of what was said on 23 June. It appears that Ms Harrison was concerned that she might have conceded on that date that it would be an abuse of process for the Crown to have proceeded with count 1 in the absence of Mr Stephenson, or even that the Crwon was willing to go ahead on count 2 to the exclusion of count 1. She therefore wished to make it clear to the judge that, if she had made such a concession then, it would be inconsistent for her to seek to pursue count 1 without Mr Stephenson available to give evidence. In such a case, she said, “it would have to be conceded that the jury would have to be directed on count 1 to enter a not guilty verdict”. The judge said that he would revisit the matter after hearing the next section of evidence. 26. That did not really advance matters beyond the discussion of 7 December, for it still remained uncertain whether any such concession had been made on 23 June. 27. The next thing that happened was that, also on 10 December, at the conclusion of the prosecution case, the appellant made a submission that there was no case to answer; and/or that the prosecution had promised not to proceed with count 1 if Mr Stephenson did not attend court to give evidence. Although in his ruling the judge dealt with that latter application second, it logically comes first. The judge continued to leave that issue open. He said: “I have looked at the court log and I have seen nothing to suggest that the Crown made that promise. Miss Harrison is uncertain of the exact phrase that may or may not have been used on 23 June which may or may not have given rise to Mr Deeney gaining that impression. Whether or not Mr Deeney has an abuse argument I cannot determine at this point without more. Whether or not he Crown are in a position to concede his point or dispute it at this point, I am not certain…” Therefore, the argument of abuse of process continued to hang fire at that time. 28. As for the submission of no case to answer, the judge said that he had not found it easy, but on balance he rejected it. He referred to the fact that the appellant was representing himself and said that he was acutely conscious of that fact. He referred to the fact that Mr Stephenson had been brought to court on 7 December and again on 8 December, as a prosecution witness, but had refused to give evidence. 29. The judge then reviewed the witness statements of Mr Stephenson and said this: “The prosecution had anticipated calling him, and the evidence relating to the count concerning him was opened to the jury but only to a limited extent. None of the following matters were in fact opened: that Mr John Stephenson had stated in his first statement that he did not recognise his attacker (despite the fact that he had, on any view, spent some ten minutes in the company of Mr Deeney shortly before the incident). It was not opened that he described his attacker as “medium or thick set”. The defendant is a tall and relatively slim man. However, in a later statement, John Stephenson picked the defendant out from still photographs of CCTV footage which had been shown to him by the police. He picked him out as his attacker. That, again, was not opened to the jury, nor was the evidence that, later, John Stephenson failed to pick the defendant out at a formal identification procedure.” Pausing there, we comment that (a) the judge did not observe that in his first statement Mr Stephenson had said that the stabbing had taken place in the corridor, not in the toilet; (b) the judge was wrong to say that Mr Stephenson had failed to pick out the appellant after he had identified him from the CCTV stills, since that failure had happened before Mr Stephenson made his second statement; and (c) the judge appeared to consider that Mr Stephenson had “picked out” the appellant from the CCTV stills, which is not how we would have read the second statement. 30. The judge then considered the evidence of Ms Bee. He then reverted to the subject of Mr Stephenson and said: “The prosecution have expressly sought not to read Mr John Stephenson’s statement under the hearsay provisions or because he may be a witness in fear. Mr Deeney argues that he has been deprived of the opportunity of cross-examining Mr Stephenson. I have invited Mr Deeney, in effect, to agree the evidence of Mr Stephenson and allow it to be read because, in my judgment, those parts which the jury have not heard in fact help him and his case more than hinder it. However, he does not wish the evidence to be read as part of his own case or, indeed, the prosecution case. As I understand it, Miss Harrison, who prosecutes, would, if Mr Deeney so requested, have agreed to the evidence being read. As I say, the irony is that John Stephenson’s evidence, in fact, on one view, is more supportive of Mr Deeney’s case than not but he has chosen not to elicit that evidence.” The judge then stated, briefly, that so far as count 1 was concerned, he was satisfied that there was evidence on which a jury, properly directed, could convict “and accordingly, in my judgment, that count should be left to the jury despite the absence of Mr Stephenson.” 31. The judge then considered the evidence of Mr Jarrold on count 2 and concluded that, similarly, although there were jury points to be made on the reliability of Mr Jarrold’s evidence, there was evidence fit to go the jury on that count. 32. There is no doubt in our judgment that there was evidence fit to go to the jury for their determination and that on that basis, whether in terms of Ms Bee’s evidence on count 1, or Mr Jarrold’s evidence on count 2, the application of no case to answer was properly refused. However, inherent in the matters debated by the judge was the separate question of whether the prosecution case on count 1 could properly be advanced in the absence of Mr Stephenson. That was an issue of abuse of process rather than of no case to answer. The argument on abuse was advanced on the basis that the Crown had undertaken, and/or Judge Machin had ruled, on an earlier occasion that count 1 could not fairly be proceeded with in the absence of Mr Stephenson. The judge had still not determined that submission. However, there was, at any rate inchoately, an inherent argument before the judge that, whatever the position before Judge Machin, it would have been unfair for the Crown to proceed without Mr Stephenson available to give evidence and to be cross-examined. As to that argument, the judge did not know of the limited, but still strong, terms in which Judge Machin had expressed himself on 23 June, but in any event it appears to have been the judge’s view, as far as we can tell, that there was ultimately no unfairness in circumstances where Mr Stephenson’s evidence could be read into the trial by agreement. If the appellant did not agree to that, that was a matter entirely for him. 33. Having rejected the appellant’s submission of no case to answer, the judge next called on the appellant to advance his defence. He therefore asked the appellant whether he wished to give evidence himself or to call any witnesses. The appellant stated that he did not wish to give evidence himself, but wished to call Mr Stephenson, and that, although he had other witnesses to call, he was unwilling to call any other witnesses before he had had a chance to cross-examine Mr Stephenson. It turned out that Mr Stephenson was not then in the precincts of the court, for the judge had by now cancelled his ruling that Mr Stephenson be brought each day to court. The judge said: “Arrangements will be made for John Stephenson to come to court, Mr Deeney…He is coming tomorrow, that is for certain, because I have requested his attendance here tomorrow. If he refuses to give evidence or, for some other reason, he does not give evidence, then you will have to call the rest of your case.” The appellant replied: “If he doesn’t give evidence, then justice hasn’t been seen to be done.” 34. The judge then caused enquiries to be made at Mr Stephenson’s prison, and received the answer that he was unwilling to give evidence for either the prosecution or the defence. On reassembling the court, the following took place: “ Judge: Mr Deeney, you have asked in front of the jury that John Stephenson be called as a defence witness and you are entitled to do that. There is, in the lawyers’ vernacular, no property in a witness. You know that he is in prison and you have told the jury this and, therefore, that he is not here and you knew that when you called him. You have refused or declined to call any defence witnesses until Mr Stephenson has given evidence. You know that he is a man who refused to give evidence on Monday and Tuesday of this week and whom I intend to sentence tomorrow for contempt of court. However, I treat your request seriously and I have had contact made with the prison where Mr Stephenson is and he has been asked if he is willing to give evidence for the defence in this case and his answer is no, he is unwilling to give evidence for the defence. He is unwilling to give evidence either for defence or prosecution. There is nothing more I can do to assist you except ask you, if you wish, that his statements be read and I ask you that now. Mr Deeney: No. I am entitled to cross-examine any witness whatsoever that has given evidence against me in this trial… Judge: You don’t wish to have the statements read? Mr Deeney: No, I don’t. I wish the witness present. Judge: Mr Deeney, if you have any other evidence that you wish to call, you must call it now. Mr Deeney: No. Judge: You don’t wish to call any – Mr Deeney: I want to hear from [Mr Stephenson] before I call the rest of my evidence…I need to hear from John Stephenson before I can call any further witnesses. Judge: Mr Deeney, I will ask you again: if you have any other evidence you wish to call, you must call it now. Now is your opportunity. There will be no further opportunity for you to call evidence in this case. Mr Deeney: I cannot call evidence in this case just now because I need to hear from the horse’s mouth, as you put it yourself. I need to hear from John Stephenson before I can call any of my witnesses. Judge: Very well. Thank you. Sit down.” 35. That discussion took place in the absence of the jury. There is a suggestion in the judge’s comments that the appellant had taken advantage of the situation in telling the jury that Mr Stephenson was in prison and in calling him when he knew that he was not available. Be that as it may, the judge had made clear to the appellant, as he had done during the no case to answer submission and ruling, that he could have Mr Stephenson’s statements read; and that now was the time for him to call any other witnesses whom he wished to call. 36. The jury were then brought into court, and the judge addressed them and the appellant in the following terms: “Ladies and gentlemen, Mr Deeney called John Stephenson as his first witness. Mr Deeney is aware of the fact that John Stephenson is currently in prison, and he mentioned that, and to avoid speculation, ladies and genetlemen, I confirm that is the case. He is not in this building and Mr Deeney is aware of that. You should know, ladies and gentlemen, that he refused to give evidence for the prosecution on Monday and Tuesday of this week and I have found that he is in contempt of court for not giving that evidence and, accordingly, I will punish him in due course. There is no property in a witness and Mr Deeney is entitled to call him if he wishes to. I have had enquiries made of the prison where Mr Stephenson is and he has refused to give evidence on behalf of the defendant as well. He remains in contempt of court. I cannot make him talk, ladies and gentlemen, and so there it is: he refuses to give evidence, and you have heard that, Mr Deeney has heard that, and so, Mr Deeney, if there are any additional witnesses that you wish to call, now is your opportunity to call them and you will not get another opportunity. Do you have any further witnesses to call?...” 37. The appellant then began arguing with the judge, who, nevertheless, persisted with his question, and finally elicited this response from the appellant: “I’ve got plenty of witnesses to call. I’m not calling them before I hear John Stephenson’s evidence.” 38. And there it rested. In the circumstances, the appellant chose: not to give evidence himself; not to have Mr Stephenson’s witness statements read; and not to call any other witness in his defence. He could not say that the judge had not made the position entirely clear to him. 39. Finally, we need to refer to a further discussion which took place on 11 December 2009, shortly before the judge began his summing up, but in the absence of the jury. What had happened, since the judge’s incomplete ruling on the previous day with respect to the appellant’s abuse of process application based on Judge Machin’s alleged ruling of 23 June, was that Ms Harrison and the appellant had been able to listen to the tape from the hearing of 23 June. Ms Harrison explained that the Crown had applied to go ahead with count 2 when it became clear that Mr Stephenson could not be got to court that week, effectively if not expressly applying to sever the indictment, so as not to lose the trial date for all purposes: but no representation was made not to proceed with count 1. In any event, Judge Machin had not been willing to proceed in that way, but preferred to adjourn the trial. Ms Harrison continued: “Secondly, His Honour Judge Machin expressly does not make a ruling. He says: “This is less by way of ruling, more by way of comment – my view is that this case needs to be adjourned in line with the Defence application for Mr Stephenson to attend. If he can be got here, he should be got here.” He then goes on to say that…there would be potentially a risk of an abuse of process if Mr Stephenson was not at least tendered by the prosecution. Well, in my submission, your Honour, the Crown have fulfilled that role by offering to allow Mr Deeney to read his statement as part of the case, which would have allowed him to make the points which were made on that occasion that would have helped his case from Mr Stephenson’s evidence. So, your Honour, that is my view of what was said on that occasion and the Crown do not consider themselves bound by a representation that the Crown would not go ahead on Count 1.” 40. The judge then asked Mr Deeney for his submissions, which remained to the effect that the Crown had been willing to go ahead without count 1, but that had been successfully opposed. The judge was then, finally, in a position to reach his ruling on this matter contentious matter which had dragged on for several days. He said: “I simply say this: I am satisfied that the prosecution did not, on 23 rd June 2009, promise to Mr Deeney not to proceed on count 1 at any future trial in the absence of John Stephenson.” We now have available a transcript (or at any rate a partial transcript) of the tape recording to which Ms Harrison and the appellant had listened at trial. That transcript confirms that no concession was made and no definitive ruling was made by Judge Machin on that day. As Judge Machin observed, he was speaking by way of comment rather than by way of ruling. The furthest he went, was that it did seem to him that if Mr Stephenson could not be available for trial, then it “might” be an abuse of process for the prosecution to continue. Therefore, Mr Stephenson “must” be got to court. The grounds of appeal 41. Leave to appeal has been granted limited to ground one of the appellant’s notice of appeal. This ground is that the convictions are unsafe because (a) the judge permitted the prosecution to lead the evidence of Ms Bee, which is said to have been materially misleading in the absence of Mr Stephenson’s evidence; (b) the judge questioned Mr Stephenson as to his refusal to give evidence in the absence of the appellant; and (c) the judge relied on a hearsay message from the prison to the effect that he was unwilling to give evidence for either the prosecution or the defence. 42. In addition, application for leave to appeal is renewed in respect of an application to call fresh evidence pursuant to section 23 of the Criminal Appeal Act 1968 . That evidence concerns witness statements provided to the appellant’s solicitor in June 2010 from three witnesses who had provided statements for trial and had been available to the appellant to call at trial, but whom the appellant had chosen not to call. We do not have their original statements. The three witnesses are (1) Shaun Deeney, the appellant’s son; (2) James Turner and (3) Liam Folan. All three statements are essentially concerned with count 2, rather than count 1. 43. Shaun Deeney said that the appellant’s (second) visit to the White Horse, to which he was driven by James Turner in his car, was to find Mr O’Brien’s brother, Eugene. It is not said why Eugene O’Brien was needed. Shaun Deeney went in the car with the appellant, Mr Turner, Mr Nigel O’Brien and a fourth man. When the appellant (and Nigel O’Brien went inside) Shaun Deeney stayed outside. He said he spoke with Mr Jarrold, who could be identified as such in the CCTV stills (he was wearing a distinctive blue, white and black striped top). He said that his father came out of the pub followed by Nigel O’Brien and that nothing occurred between him and Mr Jarrold. He identified a CCTV still of 9.39.19 pm showing the appellant walking back to the car. He identified another CCTV still of 9.42.06 pm showing Mr Jarrold walking towards Nigel O’Brien (in a white top). By that time the blue Fiat has gone. He also said that some weeks later Nigel O’Brien was at his house when he received a call on his mobile. It was Mr Jarrold, and Mr O’Brien put his phone onto speaker. Mr Jarrold said: “Why did you stab me?” Nigel said: “If you think it was me that stabbed you, why are you blaming John Deeney?” Mr Jarrold said: “Because he smirked at me when he left the pub.” 44. James Turner in his statement said that he gave a lift to the appellant that night, together with his son and Nigel O’Brien, in his Fiat 500. They were looking for Eugene O’Brien, he assumed for a night out. When they arrived at the White Horse, he stayed by or in his car. He referred to a CCTV still of 9.37.09 pm showing his passengers in the process of getting out. He referred to another still of 21.39.19 pm showing the appellant walking back to the car. The appellant asked to be taken home, having failed to find Eugene. He said that the appellant’s demeanour was normal. Nigel and Shaun Deeney remained behind, and could be seen on a still of 21.39.33 pm (by which time the Fiat has gone). 45. Liam Folan is a friend of Shaun Deeney. On the evening of 21 June he was visiting Shaun. He left at about 9 pm to cycle to town. When he got to the White Horse he saw Mr Turner’s blue Fiat there. Mr Turner was in the driver’s seat and Shaun was standing outside with Nigel O’Brien, talking to Mr Jarrold. He saw the appellant walk into the pub and emerge again a couple of minutes later, saying he was going home. Nothing unusual happened. He too referred to the CCTV stills, such as that of 9.39.19 showing the appellant walking back to the car. The still at 9.39.33 shows Mr Folan on his bike, apart from Nigel O’Brien and Shaun Deeney who are still there (the Fiat has gone). He then heard words spoken in anger and saw Mr Jarrold holding his hand across his middle. But he did not see anything happen. We observe that on the still of 9.42.06 pm which shows Mr Jarrold and Mr O’Brien walking towards one another, Mr Folan’s bike is no longer visible. 46. Finally, there is also a renewed application for leave to appeal on grounds of the appellant’s own composition. They are essentially a rerun of the applications made by the appellant at his trial. To some limited extent they are embraced in the grounds above which counsel put forward. However, they also extend more widely, for instance in submitting that the judge erred in permitting the trial to continue in the absence of Mr Stephenson, contrary to the alleged earlier ruling of Judge Machin, and also in refusing the submission of no case to answer. In making these submissions the appellant relies on the inconsistencies between the (first) witness statement of Mr Stephenson and Ms Bee’s evidence. He also appears to assert that the judge erred in permitting the statement of Mr Stephenson to be read to the jury, and also in preventing the appellant from any opportunity to cross-examine them. Of course, the appellant did cross-examine Ms Bee. Mr Stephenson’s statement was not read (and it nonsense to say that it was), but that was because the appellant declined the opportunity of having it read. All that is clear from our recitation of the circumstances of the trial above. In sum, however, the appellant’s complaint is that he did not receive a fair trial. He could not defend himself because he could not cross-examine a statement. Discussion 47. The appeal for which leave has been given is on an extremely narrow basis. It does not raise an argument of abuse of process. Nevertheless, what seems to be submitted on behalf of the appellant by his new counsel, Mr Martin Hurst, is an argument which amounts to a complaint of abuse of process. He submits that the refusal of Mr Stephenson to give evidence, compounded by what is said to be the appellant’s apparent misunderstanding of the trial process, and his near obsessive demand to be given the opportunity of cross-examining Mr Stephenson, without which he seems to have been unable to bring himself to conduct his own defence, has rendered the trial unfair and/or the convictions unsafe. Mr Hurst also relies on the concession made by Ms Harrison on behalf of the Crown, that there came a point during the trial when the prosecution realised that in any event it could not have called Mr Stephenson as a witness of truth and so at best could have tendered him for cross-examination, had he been willing to attend the trial. Mr Hurst also relied in his appeal on the instinctive reaction of Judge Machin, which was that a fair trial might not be capable of taking place without the presence of Mr Stephenson and that the prosecution might therefore have to be stayed for abuse. 48. We have considered this submission carefully, but we do not find it to be made out. Judge Machin was rightly concerned, at the stage at which he was dealing with matters, that the absence of Mr Stephenson might prejudice the fairness of the trial. Therefore, he was prepared to stress, as he said, that Mr Stephenson must be arrested and brought to court. He was not then, however, dealing with the alternative possibility that, in the absence of Mr Stephenson, his witness statements could be read. Although it is possible that the presence of Mr Stephenson, and his availability for cross-examination by the appellant, might have assisted the defence to an extent even greater than having his statements read, that must be doubtful. If the appellant had agreed to have Mr Stephenson’s statements read, then he would have had all the advantages of the inconsistencies within them, as well as the fact that the jury would have known that the complainant on count 1 was of bad character, and in prison, and unwilling to come to court, without any explanation for his unwillingness: and there could have been no explanations for the apparent inconsistencies, as might have emerged from cross-examination. Moreoever, the appellant would also have had the advantage of being able to cross-examine Ms Bee in the light of what Mr Stephenson had to say in his first witness statement about the stabbing taking place in the corridor and not in the toilet. To cross-examine Ms Bee on that basis would have required the statement to have been read to the jury before she was called, which on the chronology of the trial as it emerged might not have been achieved. However, Ms Bee could, we assume, have been recalled for further cross-examination if necessary. 49. If then we ask ourselves why Mr Stephenson’s statements were not read to the jury, it is plain from the material set out above that the fault was entirely that of the appellant. The judge made it plain to the appellant, as the appellant was of course aware, hence his attitude at trial, that at any rate the first witness statement was of assistance to the defence, and that the appellant could have the statement read to the jury. However, the appellant was adamant that he did not wish it read. He wanted something that he knew that he could not achieve, which was Mr Stephenson present in court for cross-examination. It is not clear why, as a fall-back alternative, he was not willing to have the statements read, but it may be that he considered that if he stuck to his guns he could make the trial impossible and in that way escape the peril of a jury’s verdict. 50. Mr Hurst submitted in this connection that the appellant had become obsessive and irrational, and was disadvantaged by being unrepresented. That he was unrepresented was of course true, but a matter entirely of his own doing. He had dismissed three firms of solicitors prior to trial. Nevertheless, the appellant was clearly competent and aware of the structure of the arguments relevant to his defence, able to cross-examine the prosecution witnesses effectively, and possessed of the intelligence and sufficient consciousness of the processes of trial to make a series of applications to the judge which presented every argument for his defence which could have been made. If in such a situation the argument is to be made to this court on appeal that the appellant was nevertheless the victim of his own obsessive irrationality or ignorance, so as simply to be unable rationally to consider his own best interests, then in our judgment such a case cannot simply be made as a matter of submission and inference, it would have to be supported by evidence of the appellant himself: who would have to explain to this court what he misunderstood and why, and be ready to face cross-examination as to his explanations. 51. However, we lack any such explanations. In such circumstances, we are certainly unwilling to make any such inference as Mr Hurst invites us to make. We do not consider that the appellant was unaware that he could have Mr Stephenson’s statement read. We do not accept that he genuinely thought that it had been read, although it is true that the grounds of appeal of his own composition suggest that he believed it had (as well as suggesting that Ms Bee’s evidence had been read so that she could not be cross-examined). It is entirely plain to us that the appellant knew that he was being offered the reading of Mr Stephenson’s statements, but he declined to have them read. As it is, he did agree with the prosecution that the jury should know that Mr Stephenson had failed to pick him out at an identification procedure, and the judge reminded the jury of that on two occasions in his summing-up. In our judgment, the inevitable inference which we draw, both from all that was said and done at trial and from the appellant’s self-composed grounds, and from the absence of any evidence from the appellant himself at this appeal, is that the appellant well understood the trial process but considered that he could manipulate it to his advantage when he understood that Mr Stephenson would be unwilling to attend trial. 52. In our judgment, therefore, the appellant had a fair trial. There was no abuse of process in continuing with the trial in the absence of Mr Stephenson. Judge Machin had never ruled that there would be, albeit the appellant kept on submitting, wrongly, to the trial judge that he had. The transcript of 23 June 2009 shows that there was never any such ruling, and there was never any undertaking from the Crown not to proceed with count 1 in the absence of Mr Stephenson. There is not in truth any ground of appeal for which leave has been granted which has abuse of process as its foundation. There is at most a narrow ground that it was unfair to permit the Crown to lead Ms Bee’s evidence in the absence of Mr Stephenson’s inconsistent statement. However, that statement could, if the appellant had permitted it, have been before the court. There could have been nothing unfair in Ms Bee giving her honest recollection, and if the appellant eschewed the ammunition for a more effective cross-examination, he has no one to blame but himself. 53. As for the second and third elements of the ground of appeal for which leave has been given, we consider that there is nothing in them. The judge was entitled to conduct contempt of court proceedings against Mr Stephenson in the absence of the appellant; although he would not have done so if the security of the court could have been organised in any other way. In any event, we see no basis on which it could be said that the trial was unfair, or that the convictions were unsafe, on this account. Nor do we think that the judge was not entitled to proceed on the basis of the information provided to him by Mr Stephenson’s prison as to his unwillingness to attend trial, whether as a witness for the Crown or for the defence. The judge had already seen and heard from Mr Stephenson a few days earlier, when Mr Stephenson had made perfectly clear to the judge that nothing would lead him to give evidence, and certainly not a fear of an extra prison sentence for contempt of court (“If you’re gonna give us summat else, give us it”). There is nothing whatsoever before us to suggest that the judge was misinformed or misunderstood the situation. In such circumstances, this element of the ground of appeal leads nowhere. 54. Even so, we have nevertheless carefully considered whether there is anything in the material before us, whether it comes from the permitted ground of appeal, or from the new evidence before us, or from the grounds of appeal of the appellant’s own composition, which causes us to consider the appellant’s convictions to be unsafe. 55. In our judgment, there is nothing. The jury knew that Mr Stephenson had not identified the appellant at the identification procedure. The jury did not know of Mr Stephenson’s description of his assailant, or that he had been stabbed in the corridor. That was to the appellant’s disadvantage. However, the jury knew that Mr Stephenson was unwilling to assist the court. They knew that it was Ms Steadwood’s view that what had happened had happened on the other side of the door from the corridor into the pub. She as well as Ms Bee saw the appellant come through that door. The evidence of Ms Bee, that the appellant had said “You haven’t seen anything” and had put something into the waist of his trousers, is significant evidence. The fact that two men, a father and a son-in-law, had been stabbed in similar circumstances in the course of a few minutes links the two counts. Mr Jarrold identified the appellant as his assailant. It is true that the jury did not hear all the evidence that they might have heard, but that may often be true of many trials, and it is not the fault of the Crown or the judge that the jury was deprived of Mr Stephenson’s statements. It is the fault of the appellant, and that fault was not due to any misunderstanding. 56. In this connection, we bear in mind the three new witness statements. However, that evidence (or something like it, we have not been given the witnesses’ original trial statements) was available at trial, but the appellant chose not to call it. It related essentially to count 2, the attack on Mr Jarrold, although it extended to providing a reason for the appellant’s second visit to the pub. It cannot be necessary or expedient in the interests of justice to permit an appellant to call evidence on appeal which he had available to him at trial, but deliberately chose not to call (see section 23 of the Criminal Appeal Act 1968) . In any event, the three witnesses can say nothing about what went on within the pub (count 1). All that they can say about what went on outside the pub (count 2) is to give a commentary on the CCTV stills which were available at trial. Those stills show that from the time of the appellant’s arrival (on his second visit) in Mr Turner’s car until the time of his departure measured about two minutes, from approximately 9.37 to 9.39 pm. The appellant arrived with others, but departed by himself (driven away by Mr Turner), leaving others, such as his son, Shaun, and Mr O’Brien behind. The stills do not assist with the moment of the attack on Mr Jarrold: and although the still at 9.42.06 pm shows Mr Jarrold and Mr O’Brien approaching one another, the prosecution case at trial was that Mr Jarrold (and Mr Stephenson) had been stabbed by then. Of course, if he had not been, the appellant could not have been his assailant, for he departed by then in the Fiat. However, all that was already before the jury, and the witness statements do not assist. Conclusion 57. For all these reasons, we would dismiss this appeal, and refuse the renewed applications before us.

2011_04_14-2705.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/893/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/893

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[2017] EWCA Crim 2313

EWCA_Crim_2313

2017-12-21

crown_court

No: 201704863/A4 Neutral Citation Number: [2017] EWCA Crim 2313 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 21 December 2017 B e f o r e : LORD JUSTICE HOLROYDE MRS JUSTICE WHIPPLE MR JUSTICE GOOSE REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 - - - - - - - - - - - - - - - - - R E G I N A v AARON DEAN BARLEY - - - - - - - - - - - - - - - - - Mr R Buckand QC MP (Solicitor General) appeared on behalf of the Atto

No: 201704863/A4 Neutral Citation Number: [2017] EWCA Crim 2313 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 21 December 2017 B e f o r e : LORD JUSTICE HOLROYDE MRS JUSTICE WHIPPLE MR JUSTICE GOOSE REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 - - - - - - - - - - - - - - - - - R E G I N A v AARON DEAN BARLEY - - - - - - - - - - - - - - - - - Mr R Buckand QC MP (Solicitor General) appeared on behalf of the Attorney General Mr J Hankin appeared on behalf of the Offender - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - J U D G M E N T This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person. 1. LORD JUSTICE HOLROYDE: In the spring of 2016 Mrs Tracy Wilkinson found Aaron Barley sleeping rough outside a supermarket in her home town. For convenience, and meaning no disrespect, we shall refer to him by his surname. Barley, then aged 23, had in fact recently been released from prison. Out of the kindness of her heart and her desire to help others, Mrs Wilkinson took him to her family home and gave him a meal. 2. The Wilkinson family at that time comprised Mrs Wilkinson; her husband, Peter; their daughter Lydia, then aged 18 and a university student; and their son Pierce, then aged 13. They treated Barley with great kindness and generosity. They provided him with money, meals and, at times, accommodation. They initially paid him for odd jobs around their home, where he became a regular visitor, and then found him employment. Barley told Mr Wilkinson that he just wanted somebody to give him a chance. The Wilkinsons certainly did that. But about a year later Barley brutally murdered Mrs Wilkinson and young Pierce and attempted to murder Mr Wilkinson, upon whom he inflicted serious injuries. 3. For his crimes of murder and attempted murder Barley was on 4th October 2017, in the Crown Court at Birmingham, sentenced to life imprisonment. The learned judge ordered that he serve a minimum term of 30 years. 4. Her Majesty's Solicitor General now applies, pursuant to section 36 of the Criminal Justice Act 1988, for leave to refer that sentence to this court as unduly lenient. We grant leave. 5. We summarise the grim facts of the case to the extent to which it is necessary to do so for the purposes of this hearing. Barley experienced an unhappy childhood. His natural parents died when he was a child. He suffered sexual and physical abuse. He was brought up by foster parents and at times in care homes. He has been assessed as being of normal intelligence, but his education was badly disrupted. Expert evidence from a number of psychiatrists and a neuropsychologist was agreed that he suffers from an emotional unstable personality disorder, probably explained by the unsettled and traumatic circumstances of his childhood, causing him to be prone to what have been described as "behavioural explosions" when he feels he is slighted or abandoned. His medical history shows that he was diagnosed with attention deficit hyperactivity disorder and prescribed medication when he was only about 8 or 9 years old. At other times in his young life he had been diagnosed with post-traumatic stress disorder, depression and latterly the personality disorder. He had been prescribed over the years various forms of anti-psychotic, mood-stabilising and antidepressant medication. 6. Barley had previously been convicted on 14 occasions of a total of 21 offences. The offences involved both dishonesty and violence. Some as a juvenile offender resulted in custodial sentences. His most serious previous offence, and his first sentence in an adult court, was an offence contrary to section 20 of the Offences Against the Person Act 1861, against a former partner, for which in August 2012 he was sentenced to 44 months' imprisonment. We do not know the details of that offence but we can and do infer from the sentence of 44 months, following a guilty plea to an offence which carries a maximum of 5 years' imprisonment, that it must have been a serious example of its kind. It was after his release from that sentence that he was taken in and helped by the Wilkinsons. 7. With the assistance of the Wilkinsons, Barley for a time lived at a hostel, but he ate each evening at the Wilkinsons' home. Mr Wilkinson then assisted him to obtain full-time employment and helped him find accommodation for which Barley was to pay out of his wages. After a time, however, Barley stopped attending work. He fell into dispute with his landlord and was evicted from his flat. His employers tried to assist him but he then left his job without notice. 8. In October 2016 Barley was arrested and charged with offences of theft and assaulting a police officer. He was bailed by the police. He went to the Wilkinsons' house, where he was found asleep on their drive. Once again they helped him. They allowed him to live in their home for 2 weeks before he found other work and a new flat. But again, he soon stopped turning in for work and was eventually sacked. He ceased contact with the Wilkinsons, but it seems that he began to socialise and drink in the area near their home. 9. About a week before the murders, Mrs Wilkinson reported to a friend that she had seen Barley and another man looking over her fence and that Barley had made death threats to her. 10. In the early hours of 30th March 2017 Barley gained entry to the garden of the Wilkinsons' home. Footage later recovered from CCTV cameras showed that he moved around the garden and around the Wilkinsons' parked cars in a manner which made it obvious that he was trying not to be seen. He remained there for several hours, during which time he removed a light coloured jacket which he had been wearing. That left him in dark clothing. He covered his trainers, which were of a bright colour, with dark coloured socks. He had a balaclava or hat. 11. During the time he was lurking in the garden Barley went into a garden shed. That was at about 00.44 in the morning. He emerged armed with a hammer. An hour or so later he tried unsuccessfully to get into the house through a window. He then hid behind bushes until at about 7.30 that morning he saw Mr Wilkinson taking the dog out for the regular morning walk. It is important to note that in the hours which had passed up until that point the CCTV footage shows that Barley had been awake and moving around. This is not a case of his having simply fallen asleep and eventually woken up in the morning. 12. When Mr Wilkinson left, Barley went into the house and armed himself with one or more knives from the kitchen. In her sentencing remarks the learned judge summarised what then happened in the following terms: "Once he had gone out, you entered the kitchen and removed at least one knife from the kitchen. You went upstairs and stabbed both Mrs Wilkinson and Pierce multiple times in what were violent and sustained assaults involving severe force. The stabbing injuries led to the collapse of Pierce's lungs and one wound almost divided his spinal cord. Mrs Wilkinson has at least 17 stab wounds consistent with a violent assault, some penetrating a depth of 10 to 15 centimetres. You stabbed her through the bedding and the dirty footprints that you left on the sheets suggest that you climbed on the bed to carry out your attack. You abandoned one knife on her bed. I have no doubt that you intended kill each of them. When Mr Wilkinson returned just before 8 o'clock in the morning and went to open the kitchen door he was confronted by you, dressed in black, wearing gloves and a balaclava. You stabbed and slashed at him too with a knife. Some of the attack was again caught on the security camera footage as you drove Mr Wilkinson into the garden, your right arm clearly raised above you, knife in hand. As he pleaded with you, you responded, 'Die, you bastard'. For whatever reason, you then suddenly left, driving off in the Land Rover Discovery parked on the front driveway." 13. The learned judge went on to record that Mrs Wilson had managed to telephone the police. Emergency services attended. Mrs Wilkinson was found dead. Pierce was alive, but it was not possible to save his life. Mr Wilkinson, for his part, underwent surgery for two incised wounds in the abdomen and two in the bowel. He spent a week in critical care in hospital, suffering enormous pain, and received multiple stitches. As at the time of sentencing, Mr Wilkinson had only recently been able to return to part-time work. He is left with permanent scarring. 14. Barley drove away from the house in one of the Wilkinsons' cars. He drove in a dangerous manner before eventually crashing and being arrested. One of the knives which he had used in his attacks was found in the front footwell of that car. 15. On arrest Barley showed no remorse. On the contrary, he said that he was pleased that he had got two victims but was upset that he had not got Mr Wilkinson. He threatened to do the same to the police. 16. He pleaded guilty at an early stage to the attempted murder of Mr Wilkinson. He always accepted that he had killed Mrs Wilkinson and Pierce Wilkinson, but the expert evidence to which we have referred was properly obtained in order to establish whether any partial defence was available to the two charges of murder. When the expert evidence concluded that no such defence was available, Barley promptly pleaded guilty to those charges. The learned judge concluded that he was entitled to receive credit for those guilty pleas on the basis that they had been entered at the first reasonable opportunity. 17. The only apparent explanation for these savage attacks, each of which was intended to kill, is that Barley, who has a history of blaming others for his misfortunes, for some reason felt that he had been let down by the Wilkinsons, and by Mr Wilkinson in particular. It is acknowledged by counsel on Barley's behalf that there was no objective basis for any such belief. 18. Thus on that morning Barley ended two lives, but he blighted many more. In the very moving personal impact statements which we have read, Mr Wilkinson, Lydia Wilkinson and other members of their extended family have set out very clearly the anguish which they have suffered and will continue to suffer. We quote only very brief extracts. Mr Wilkinson expresses in his statement his uncontrollable emotion due to the "vile, callous, barbaric and cowardly act" of Barley. He says: "We cared for Aaron, welcomed him and we showed him love and respect which he had never received anywhere else. The repayment was for him to destroy my family for no reason whatsoever". Lydia Wilkinson, away at university on the morning of the killings, received the dreadful news that her mother and brother had been murdered and that her father had been taken to hospital in a critical condition. She travelled home not knowing whether her father would live. It fell to her to carry out the awful task of identifying the deceased. Unsurprisingly she describes that in her statement as a memory which will stay with her forever. In the statement, which she herself read in the court below, she says that grief has ruined her. Another member of the family with 30 years' experience as a social worker describes the crimes as having caused her to lose her faith in humanity. Mr Wilkinson's father speaks of the deep distress suffered by him and his wife. 19. We have very well in mind those statements, and the knowledge that the authors of them are very far from being the only persons harmed by Barley's crimes. We offer our sympathy to the bereaved. We are sure they will understand that no sentence of the court ever can be, or is intended to be, in any sense a valuation either of the lives of the deceased or of the suffering of those who have been bereaved. 20. The learned judge clearly took great care in considering her sentences and she set out her reasoning with clarity and compassion in her detailed sentencing remarks. She rightly identified a number of serious aggravating features. First, the very significant degree of planning and premeditation. At page 5D she said: "You broke into the grounds of the house in the very early hours. You emerged from the garden in black disguise even covering your coloured trainers with black socks. You wore gloves and a balaclava. You took care to remove your cream jacket and hide it under a car. You lay in wait for hours. It has been suggested on your behalf that your killing of Mrs Wilkinson and Pierce was opportunistic. You have said in the past that you only intended to kill Mr Wilkinson at the outset and decided to kill Mrs Wilkinson and Pierce only when you were apprehended or startled in the house by someone upstairs and you panicked. I am sure that either by the time you walked so purposefully into the house as can be seen on the footage, or at the latest after you had armed yourself and were standing in the kitchen you had formed the intention to kill Mrs Wilkinson and Pierce." Secondly, the judge referred to Barley's abuse of his knowledge of the Wilkinson's family home, a knowledge which he had only gained because of their extraordinary kindness and generosity to him. Thirdly, she pointed to Barley's lack of remorse and to his expression of regret that he had not also killed Mr Wilkinson. She said: "You knew that you were destroying the family, it was what you intended". 21. Fourthly, the learned judge referred to the previous convictions. 22. As to mitigating factors, the learned judge identified Barley's relatively young age and the badly disrupted childhood and childhood trauma which had led to the personality disorder to which we have referred. 23. The learned judge considered, as she was required to do, the provisions of schedule 21 to the Criminal Justice Act 2003. She said that she had considered carefully, by reference to reported case law, whether it was necessary to make a whole life order: that is, an order for life imprisonment with a direction to the effect that Barley should never be released. She said of this issue at page 6H: "The seriousness of these offences involving two murders and an associated attempted murder, with multiple aggravating features that I have identified, could be said to be exceptionally high. However, principally because of your youth, I am not satisfied the considerations of just punishment and deterrence require a whole life order. The correct starting point in determining the minimum term, not to be applied mechanistically, is thirty years. I bear in mind the principle of totality and the need to pass sentences which reflect the seriousness of the offences and the overall criminality of your offending the round. Having regard to your overall offending, all the aggravating features and the mitigating features in your case including your youth and background, a minimum term of thirty-five years is in my judgment appropriate before giving credit for your guilty pleas. After such credit of five years the minimum term in each case is therefore thirty years." The learned judge went on to make the appropriate allowance for the period of time which Barley had spent remanded in custody before sentence. 24. In relation to the offence of the attempted murder of Mr Wilkinson, the learned judge rightly placed it in the highest category of seriousness under the relevant guideline. For such an offence, standing alone, a determinate sentence of the order of 30 years' imprisonment would be appropriate. She found, unsurprisingly, that Barley is a dangerous offender as that term is defined for sentencing purposes. She imposed a discretionary life sentence with a minimum term of 10 years, again subject to the appropriate reduction for time spent on remand in custody. The learned judge took care to explain the effect of her sentencing. 25. The Solicitor General submits that this was a case in which just punishment and retribution required the imposition of a whole life order. He makes that submission in relation to all three offences, acknowledging that the statutory provisions to which we shall shortly come relate specifically to cases of a mandatory sentence of life imprisonment for murder, but submitting that by parity of reasoning a similar result should be reached in the case of the charge of attempted murder. As a secondary and alternative submission, in case his first submission has not been accepted by this court, the Solicitor General submits that in all the circumstances of this case a minimum term substantially in excess of 30 years was necessary to reflect the scale of the harm caused and the level of Barley's culpability. 26. In addition to those points specifically mentioned by the learned judge in the passage which we have just quoted, the Solicitor General points to the following aggravating features. First, the fact that the murders involved an invasion of the Wilkinsons' family home coupled with a profound breach of trust in committing those crimes in the very home where he had been cared for by his victims. Secondly, the particularly brutal and savage nature of the stabbings. Thirdly, and associated with the point just mentioned, the terror which the victims must have experienced. The Solicitor General points out that as a matter of common sense one of the two victims of murder must have been aware of the attack upon the other. Next, the Solicitor General points to the fact that one of the victims of murder was a child aged only 13. Next, he points to the impact, not only on the immediate family, but on the extended family, the many friends of the deceased and the local community generally. 27. Above all the Solicitor General points to the combined gravity of the three offences taken together. All three offences would inevitably be dealt with by concurrent sentences. It was therefore necessary for the minimum term on the murder charges properly to reflect the overall gravity of the offending. The Solicitor General submits, with respect to the learned judge, that she did not give sufficient weight to those matters. 28. In his written response and in the oral submissions which he has made today on behalf of Barley, Mr Hankin QC concedes that the learned judge fell into error in imposing a minimum term which was unduly lenient in its length. He argues however that she was correct to conclude that in all the circumstances a whole life order was not required. He makes the important concession which he does, because he accepts the argument of the Solicitor General that the minimum term imposed failed to give sufficient weight to the combination of offences and the combined gravity of them. As to the issue of whether a whole life order was called for, he makes these submissions. First, by reference to case law, to which we shall shortly come, he submits that this could not be regarded even as a borderline case, and therefore its seriousness was not so exceptionally high as to require a sentence of imprisonment for life. Secondly, accepting that the offences were brutal in their execution but not accepting the submission of the Solicitor General that they could properly be described as "sadistic", Mr Hankin submits it was nonetheless too great a step to regard those offences as calling for Barley to be imprisoned with no realistic prospect of release at any time in his life. Next, he argues that the case does not fall squarely into the terms of relevant provisions of schedule 21, in particular because the initial intention of Barley may have been limited to killing Mr Wilkinson, so that, submits Mr Hankin, any real planning and premeditation was directed towards the associated offence of attempted murder rather than the offences of murder. 29. Next, Mr Hankin points to the young age of Barley, which he submits is important in two respects. First, because the impact of a whole life order will be so much more severe for a young man of that age than for an older offender. Secondly, because of the need for the courts, when dealing with comparatively young offenders, always to take into account the possibility of a lesser level of maturity, insight and understanding than in the case of a mature older adult. 30. Next, Mr Hankin points to the mental health issues which we have summarised. Lastly, he urges the court to take into account the fact that admissions were made and guilty pleas entered. He readily and properly acknowledges that this is a dreadful case. But, he submits, the court must properly set it in the context of other yet more serious offences which are on occasions seen. 31. We are grateful to all counsel for their extremely helpful submissions. We have reflected upon them. 32. The sentence for murder is fixed by law. It is one of life imprisonment. The effect of section 269 of the Criminal Justice Act 2003 is that a court when imposing a mandatory life sentence for murder must specify the minimum term which must elapse before the early release provisions, in other words the provisions relating to release on licence, can apply. The minimum term is the period which the court considers appropriate, taking into account the seriousness of the offence or offences. 33. By section 269(4): "(4) If the offender was 21 or over when he committed the offence and the court is of the opinion that, because of the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, no order should be made under subsection (2), the court must order that the early release provisions are not to apply to the offender." 34. Section 269(5) is the statutory provision which requires the court to have regard in determining the minimum term to schedule 21 to the Act. That schedule provides three different starting points. By paragraph 4(1): "4(1) If— (a) the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high, and (b) the offender was aged 21 or over when he committed the offence. the appropriate starting point is a whole life order." 35. In paragraph 4(2) examples are given of cases which would normally fall within that provision. Of relevance for this case, and relied upon by the Solicitor General, is paragraph 2A(i): "The murder of two or more persons where each murder involves ... a substantial degree of premeditation or planning." By paragraph 5(1): "5(1) If— (a) the case does not fall within paragraph 4(1) but the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is particularly high, and (b) the offender was aged 18 or over when he committed the offence. the appropriate starting point, in determining the minimum term, is 30 years." 36. Again, examples are given. They include, in paragraph 5(2)(f), "the murder of two or more persons". 37. For an adult offender whose case does not fall within either of the paragraphs the appropriate starting point is one of 15 years. 38. Unless a whole life order is imposed the court, having selected the appropriate starting point, should then take into account all relevant aggravating and mitigating factors, in so far as they have not already been taken into account in selecting the starting point, and make an appropriate adjustment to the starting point, whether upward or downwards. 39. We must pause to mention important features of the minimum term. First, it is precisely what it says: the minimum number of years which must pass before the murderer can even be considered for release on licence. Secondly, even when the minimum term expires, release on licence does not follow either immediately or as a matter of course. The Parole Board must make a careful assessment of whether the protection of the public requires the continued detention of the murderer. He will only be released when the Parole Board is satisfied that it is safe to do so. Thus a prisoner may be detained long beyond the expiration of his minimum term and perhaps even for the rest of his life. Thirdly, if and when a murderer is released, he remains subject to the conditions of his licence for life. If he reoffends he may at any time be recalled to continue serving his life sentence. 40. It is these features of the life sentence which provide the public with the necessary protection for the future. Thus the minimum term is intended to be the appropriate term by way of punishment and retribution. It is not necessary for a court to increase that term in order to protect the public. 41. In R v Jones and Ors [2006] 2 Cr App R(S) 19, at paragraph 10 the Lord Chief Justice said: "A whole life order should be imposed where the seriousness of the offending is so exceptionally high that just punishment requires the offender to be kept in prison for the rest of his or her life. Often, perhaps usually, where such an order is called for the case will not be on the borderline. The facts of the case, considered as a whole, will leave the judge in no doubt that the offender must be kept in prison for the rest of his or her life. Indeed if the judge is in doubt, this may well be an indication that a finite minimum term which leaves open the possibility that the offender may be released for final years of his or her life is the appropriate disposal. To be imprisoned for a finite period of 30 years or more is a very severe penalty. If the case includes one or more of the factors set out in paragraph 4(2) it is likely to be a case that calls for a whole life order, but the judge must consider all the material facts before concluding that a very lengthy finite term will not be a sufficiently severe penalty." 42. Then at paragraph 15 the court went on to say that the court should consider the fact that an offender has pleaded guilty to murder when deciding whether it is appropriate to order a whole life term. Mr Hankin, in his submissions, relies upon those passages. 43. In R v Oakes and Ors [2013] QB 979 , a constitution of this court emphasised that the decision as to whether a whole life order is necessary is a discretionary aspect of the judge's sentencing decision: see paragraph 12. Later in the judgment, the court referred to the frequently-expressed principle that a whole life order will very rarely be made and remains a sentence of last resort for cases of the most extreme gravity. At paragraph 29 the Lord Chief Justice put it in this way, that a whole life order - "is reserved for the few exceptionally serious offences in which, after reflecting on all the features of aggravation and mitigation, the judge is satisfied that the element of just punishment and retribution requires the imposition of a whole life order. If that conclusion is justified, the whole life order is appropriate: but only then. It is not a mandatory or automatic or minimum sentence." 44. These principles were reiterated by the then Lord Chief Justice in the subsequent cases of R v Reynolds [2015] 1 Cr App R(S) 24 and R v Simpson-Kent [2017] EWCA Crim 990 . It is because of the need to give close attention to the precise circumstances of the individual case that we have regrettably found it necessary to recite distressing details of the facts of this case. 45. Applying the principles which we have set out to the present case, the learned judge below concluded that the circumstances did not require imposition of a whole life order. Her decision does not of course mean that these were anything other than truly dreadful crimes. It was a conclusion that this was not one of the rare and exceptional cases in which such an order was necessary. We have no doubt that she was entitled to come to that conclusion. Having reflected carefully on the matter we are unable to accept the Solicitor General's submission that the sentences were unduly lenient because the only sentence properly open to the judge was a whole life order. 46. We should add for completeness that even if we had been persuaded of that argument in relation to the counts of murder, we would not have accepted the submission that a similar sentence was necessary on the charge of attempted murder, as to which, in our view, rather different considerations would apply. 47. As to the length of the minimum term, we think that the learned judge was correct in all the circumstances of the case to allow the full credit for the guilty pleas which is permissible. That credit is limited to 5 years. The issue accordingly is whether the minimum term of 35 years before that deduction was made was unduly lenient. 48. We are persuaded that it was. In a difficult sentencing exercise, we are persuaded that the learned judge did fall into error. First, we take the view that she should have given even more weight than she did to the many and grave aggravating features, including not only those specifically mentioned in the sentencing remarks, but also the other points identified by the Solicitor General to which we have referred. We do not accept the submission that these crimes, terrible as they were, are properly to be described as "sadistic"; but the brutality of the stabbings and the terror which the victims must have felt were very grave aggravating features. 49. The element of planning and premeditation was, in our judgment, very strong. Even if it be the case, as to which we make no finding, that Barley had not always planned to murder all three of his victims, he certainly had that intention by the time he entered the house and selected one or more knives suitable for his dreadful purpose. But even looking at the matter on the basis on which Mr Hankin invites us to do, we see no force in his argument that the planning and premeditation was in reality directed to the associated offence. We can see that an argument along those lines might carry some weight in a very different case where, for example, a meticulously-planned high value burglary was chanced upon by a night watchman, who was there and then killed. But in this case - whether he always intended to kill all three, or whether for some of the time he intended only to kill Mr Wilkinson - Barley was lying in wait in the garden with murderous intent. His planning and preparation were directed to carrying out murder. In those circumstances, we are unable to accept this part of Mr Hankin's submissions. 50. As to mitigation, the learned judge correctly identified the factors. However, the comparatively young age of the offender was a feature to which, as it seems to us, the learned judge had already given full weight when she made her decision not to impose a whole life order. It was the factor which she specifically mentioned when explaining that decision. It follows, in our judgment, that the only significant features of mitigation, to be set against the aggravating features when determining the minimum term, were the limited extent to which Barley's personality disorder lessoned his responsibility and culpability for the offences, and the fact that he has always admitted responsibility for the deaths and the attempted murder and pleaded guilty to each other offence at the first reasonable opportunity. 51. Those are undoubtedly factors properly to be weighed in the balance. But in our judgment, they could carry only limited weight. First, whatever his psychological problems, Barley was able to and did plan his attack, equip himself carefully for it and carry it out mercilessly. Secondly, his initial acceptance of responsibility for the killings was in the context of boasting and expressing regret that he had not done more than he did. 52. Weighing those factors in the balance, we accept the Solicitor General's submission that particular weight must here be given to the combination of offending, including as it did the murder of one adult, the murder of a child and the determined attempt to murder another adult. We are driven to the conclusion that the minimum term was unduly lenient. Having considered all the relevant circumstances we conclude that, before giving appropriate credit for the guilty pleas, the minimum term should have been one of 40 years. It follows that when credit is appropriately given, the sentences for murder should have carried a minimum term of 35 years less the days spent on remand. 53. Accordingly, we allow this Reference. We quash the sentences imposed below in relation to counts 1 and 2, and substitute for them increased sentences of life imprisonment with a minimum term of 34 years and 178 days, that period being calculated from the date when sentence was passed in the court below. We are not persuaded that there is any ground to increase the sentence imposed on count 3, which will accordingly remain as passed below. 54. LORD JUSTICE HOLROYDE: Mr Solicitor and Mr Hankin, we are very grateful to you both and those assisting you for your submissions. Is there any matter that remains to be dealt with? 55. THE SOLICITOR GENERAL: No. Thank you, my Lord. 56. LORD JUSTICE HOLROYDE: We would not wish to leave the case without expressing our admiration for the manner in which those to whom the case means so much have listened to this lengthy judgment. We are very grateful to you.

2017_12_21-4140.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/2313/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/2313

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[2023] EWCA Crim 1624

EWCA_Crim_1624

2023-12-20

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. Neutral Citation No. [2023] EWCA Crim 1624 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO2303737/A2 Royal Courts of Justice Strand London WC2A 2LL Wednesday, 20 December 2023 Before: LORD JUSTICE DINGEMANS MR JUSTICE HILLIARD HIS HONOUR JUDGE DREW KC (Sitting as a Judge of the CACD) REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 REX V JONATHAN DA SILVA __________ 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 P JARVIS appeared on behalf of the Attorney General MR R BHASIN appeared on behalf of the Offender _________ J U D G M E N T LORD JUSTICE DINGEMANS: Introduction 1. This is the hearing of an application for leave to refer a sentence which His Majesty's Solicitor General considers to be unduly lenient. 2. The respondent, Jonathan Da Silva is a 35-year-old man. He was, before these matters, of previous good character. Mr Da Silva was sent for trial on an indictment containing two counts of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861 , one count of intentional strangulation, contrary to section 75 A of the Serious Crime Act 2015 , one count of making a threat to kill, contrary to section 16 of the Offences Against the Person Act 1861 and one count of controlling or coercive behaviour in an intimate or family relationship, contrary to section 76 of the Serious Crime Act 2015 . 3. On 6 October 2022, Mr Da Silva pleaded not guilty at the pretrial preliminary hearing and his trial was fixed for 8 February. On 18 January 2023, because of overrunning court lists it seems, the trial was re-arranged for 21 August 2023. On 15 August 2023 Mr Da Silva indicated that he would plead guilty to the indictment. On 21 August he pleaded guilty to the five counts. On 28 September 2023 in the Crown Court at Inner London, Mr Da Silva was sentenced to a community order for 18 months, with an alcohol abstinence and monitoring requirement for 30 days, a rehabilitation activity requirement for 30 days and an unpaid work requirement for 120 hours. This was the sentence imposed on each of the five counts concurrent with each other. 4. It is submitted on behalf of the Solicitor General that this sentence is unduly lenient. The offence of strangulation alone merited a starting point of 18 months' custody and the plea of guilty was late. Mr Da Silva merited a term of immediate custody regardless of whether or not the sentence in aggregate should have been below the 24 months which might be suspended and it was submitted that the sentence should in any event have exceeded 24 months. 5. It is submitted on behalf of Mr Da Silva that although the sentence may have been lenient it was not unduly lenient. The judge was entitled to give more than the 10 per cent credit suggested by the prosecution, there was genuine remorse, the judge had an insight into the relationship difficulties, Mr Da Silva had been open about matters, Mr Da Silva had been in custody for the equivalent of a three month sentence of imprisonment before being granted bail, the pre-appeal report from probation shows that Mr Da Silva has engaged positively with his community order even though he is struggling emotionally with his current situation and seeking therapy. We are very grateful to Mr Jarvis and Mr Bhasin for their helpful written and oral submissions. Factual background 6. Mr Da Silva and the victim, whose name it is not necessary to give, first met at a party in August 2021. They embarked on a relationship together and the victim moved in to Mr Da Silva's home. 7. From the beginning of the relationship Mr Da Silva controlled the victim and set about isolating him from family and friends. He repeatedly accessed the victim's social media accounts and accused him of cheating whenever he went to visit his mother. The count of coercive or controlling behaviour ran from 1 August 2021 to 19 August 2022. 8. The first time that Mr Da Silva became physically violent towards the victim was in March 2022 and this was the first count of assault occasioning actual bodily harm. Mr Da Silva repeatedly punched the victim in the face. He also placed the victim in a choke hold and tried to strangle him. That offence was not charged as intentional strangulation because the statutory provisions relating to intentional strangulation had not yet come into force. 9. On the same occasion Mr Da Silva tried to gouge the victim's eyes and started saying that he needed to be "rebooted", which made little sense to the victim. Mr Da Silva tried to force the victim to sleep with him and dragged him across the floor, resulting in an injury to his hip. 10. The victim decided not to alert the police and the relationship continued but he reported matters to a friend, including a Mr Redjep who recalled that on 21 March 2022 he had received a call from another mutual friend to say that the victim had been assaulted. The victim then sent Mr Redjep some photographs of his injuries showing a graze above his nose and a scratch below his nose and scratches on his neck and ears. At around this time the victim messaged Mr Da Silva saying, "What you have done to me is unforgivable. You have humiliated me, degraded me and abused me. You are sick and need help." 11. On 19 August 2022, so some five months later, the victim called the police to say he had been attacked. Shortly after midnight the police arrived outside a fast food restaurant. The victim was there with some bags, he was wearing pyjamas and was in a distressed state. This was the occasion of the second count of assault occasioning actual bodily harm, the intentional strangulation and the threat to kill. 12. The victim explained to the police that Mr Da Silva had been feeling unwell throughout the day. The victim had gone to visit Mr Da Silva at the hair dressing salon where he worked but Mr Da Silva had told the victim to go home. The victim had gone back to the flat. Mr Da Silva had got back to the flat at about 8.30 pm in the evening. He accused the victim of cheating. It was obvious to the victim that Mr Da Silva was in a mood. The victim told Mr Da Silva that he could not do this anymore, at which point Mr Da Silva grabbed the victim's possessions and started throwing them on the floor and at the door. The victim went out to buy some food. When he was gone Mr Da Silva telephoned the victim and accused him of leaving him while he was unwell. The victim explained he was buying them dinner. When he got back to the flat, Mr Da Silva repeatedly shoved the victim with enough force to knock him off balance. He also went for the victim's face, as if to gouge his eyes again. The victim grabbed Mr Da Silva's arms in an attempt to stop that. Mr Da Silva tackled the victim to the bed before grabbing the victim's metal water bottle and trying to strike him with it, using it as a club. The victim grabbed his arms to stop him and Mr Da Silva said: "If you fucking leave me I'm going to kill you." The victim told Mr Da Silva he could not put up with this anymore and Mr Da Silva seemed to calm down. He said he would stop and he showed the victim messages he had sent to the hospital in which he had written saying that he needed help with his anger and was a danger to others. The hospital had sent Mr Da Silva a form to fill in and the victim offered to help him complete it but Mr Da Silva erupted again and started to throw shoes and clothes at the victim and block his way out of the flat. Mr Da Silva threw a chair that knocked out one of the door hinges. He then whipped the victim around the face with a pair of shorts and he told the victim he would knock him out and kill him. The victim took that threat seriously. The victim felt trapped and scared with no means of escape. He went to the door but Mr Da Silva punched him to the left side of his face causing him to fall to the floor by the radiator. The victim was dazed and confused and Mr Da Silva screamed at him to get out. He then started to stamp on the victim's chest with force and to kick the victim in the back. He grabbed his suitcase and smashed it down on his face. He tried to punch the victim again but the victim was able to push him away. The victim ran to the door but Mr Da Silva blocked him and he punched him in the nose. He then started to twist and pull the victim's nose, causing a nose bleed. Then he put his arm around his neck for a time trying to choke him. At the same time Mr Da Silva tried to punch the victim with his free hand and he tried to gouge his eyes again and Mr Da Silva ripped the victim's shirt and pyjamas. The victim got to the door and Mr Da Silva poured water over him as he unlocked the door and ran out. 13. As a result of the attack the victim sustained what he described as a busted nose, a swollen and bruised cheek and cuts and abrasions to the face. His mouth was swollen and there were marks on his neck and abrasions on the back and shoulder. The police took the victim to hospital so the injuries could be treated. 14. The police also went round to Mr Da Silva's address but he had gone. The police arrested him later that morning and took him into custody. The police officers noted that Mr Da Silva had an injured hand. In interview Mr Da Silva answered "no comment" but he did produce a prepared statement in which he denied committing any offences against the victim. He wrote that any force he may have used had been in self-defence. 15. The police spoke to the victim's friends and families in order to learn more about their relationship and that suggested strongly that there had been a controlling and coercive relationship between them and that the victim had become withdrawn. The police had spoken to the victim's mother who had had no concerns initially about the relationship but then spoke about the deteriorating nature of the relationship. She recollected that after the assault her son was in a bad state. He looked lost, he was very quiet and he stayed with his parents while he recovered. Sentencing 16. There were victim personal statements from the victim about the dramatic effect that Mr Da Silva's offending had had on his life. He now took anti-depressants and suffered from panic attacks and anxiety. He had no confidence anymore and sometimes he had suicidal thoughts. His physical injuries had healed but the emotional scars had not. He was seeking counselling to help him to cope. 17. The victim's mother provided a personal statement. She wrote that it was devastating to learn that her son had been the victim of domestic violence. She and her husband had had to pick up the pieces and they had been overwhelmed by stress and anxiety. That was not helped by the fact that her husband himself had an illness and his health had suffered. 18. There was a pre-sentence report. In his interview with the author, Mr Da Silva agreed with the facts set out in the victim's account of events. Mr Da Silva said he felt embarrassed and ashamed of his behaviour. The author was prepared to accept Mr Da Silva's remorse as genuine but felt that Mr Da Silva lacked any real insight into the impact of his conduct on the victim. The author recorded that Mr Da Silva had possessive traits in his behaviour to the victim. Mr Da Silva told the author that he worked as a self-employed hairdresser and disclosed his earnings. He spoke about previous relationships and that he had never behaved like this towards a partner before. Mr Da Silva described himself and the victim as recreational users of cocaine and MDMA and they consumed alcohol together. Mr Da Silva said he was seeking private therapy to help him deal with childhood trauma. He did not elaborate on that. He said he wanted to address the causes of his offending and seemed genuine to the pre-sentence report writer. The author assessed Mr Da Silva as possessing a medium risk of harm to future intimate partners. 19. The author concluded that while a sentence of immediate imprisonment would serve to punish Mr Da Silva, it would also mean him losing his job and home and he expressed the view that Mr Da Silva's risk could be managed in the community. He recommended a community order with a number of requirements. 20. There were also a number of character references before the court that showed that Mr Da Silva had many excellent and positive qualities and that the offending was out of character. 21. The judge was referred to sentencing guidelines for actual bodily harm, threats to kill and using coercive and controlling behaviour and the recent authority of R v Cook [2023] EWCA Crim 452 , [2023] 4 WLR 71 which had suggested that a starting point in relation to strangulation should be 18 months. 22. In the Recorder's assessment the behaviour was likely to have been fuelled by a combination of drugs and alcohol. This was a case where the Recorder concluded he could take an exceptional course and not pass a custodial sentence. He decided to follow the recommendations in the pre-sentence report and impose a community order with requirements. He concluded that was open to him because Mr Da Silva was a man of previous good character, pleaded guilty, remorse was genuine and demonstrated a determination to overcome the causes of his offending. Post-sentence report 23. We been provided with a post-sentence report from the probation service which shows that Mr Da Silva has complied with the terms of his orders and positively engaged with the requirements imposed on him. The guidelines 24. In relation to the assault occasioning actual bodily harm guidelines it seemed to be common ground below that this was a Category 2A offence with a starting point of 18 months for each offence. The threat to kill was a Category 2B offence with a starting point of one year with a range of 26 weeks to two years six months and the offence of strangulation had a starting point of 18 months (see R v Cook ) although it was also plain that such a sentence might be suspended in accordance with the relevant sentencing guideline (see R v Borsodi [2023] EWCA Crim 899 ). The coercive and controlling behaviour was suggested below to be a Category 2B offence with a starting point of 26 weeks, with a range of a high level community order to one year custody. 25. There were aggravating features to the offending, namely that it was committed in a domestic context and the history of violence in relation to the later offences and there was abuse towards the victim by the offender. We have considered the relevant guideline of “Overarching principles, domestic abuse” which makes it plain that domestic abuse will always be serious. There are also mitigating features of the absence of previous convictions, positive good character and remorse accepted by the judge to be genuine. Any sentence must also be just and proportionate and have regard to the principles of totality. It is inappropriate simply to add sentences together for separate offending, as appears from the Totality guideline. The appropriate sentence 26. We grant leave for the Reference. It is plain that the judge considered that what he was doing was exceptional in imposing a community order but we consider that he was wrong to find that he was entitled to do so. A court must apply the sentencing guidelines unless the court finds it is not in the interests of justice to do so. The judge did not make any such finding in this case and we can see no grounds for such a finding. We do not consider that a community order provided a sufficient restriction on Mr Da Silva's liberty so that it could be imposed. 27. Having reflected on the whole of the criminality disclosed by all of the offending before the court and having regard to the aggravating factors, but also considering principles of totality at this stage, we consider that a sentence of 33 months before discounting for mitigation and plea was appropriate. There was substantial mitigation which we assess as meriting a reduction of eight months. This would give a sentence of 25 months before discount for plea. The plea was indicated shortly before trial and a reduction of between 12 and 15 per cent was merited. Using 12 per cent simply for the purposes of ease of calculation, the reduction is three months when rounded up. This gives a total sentence of imprisonment of 22 months. 28. This means that the real issue on the Reference now becomes whether or not to suspend the sentence. We have regard to the factors indicating that it would not be appropriate to suspend a custodial sentence. The first factor is that the offender presents a risk or danger to the public. We have already related the probation service's finding in relation to that and risk to future intimate partners. 29. The second factor is that appropriate punishment can only be achieved by immediate custody. Mr Jarvis submitted that the offending could only be dealt with by custody because it was repeated and not stopped. Mr Bhasin submitted that this ignored all the other relevant factors in the assessment and was not the appropriate approach to the relevant guideline. So far as the third factor was concerned, history of poor compliance with orders, that was not applicable. 30. Factors indicating that it might be appropriate to suspend a custodial sentence are a realistic prospect of rehabilitation. That is present and it is apparent from all the information that we now have, including the post-appeal or launch of the appeal sentencing report that Mr Da Silva is making strong progress with the probation services. The second factor is strong personal mitigation; this is present and we will not repeat the other matters. The third factor is that immediate custody will result in significant harmful impact upon others; this is not applicable. 31. We have thought long and hard about the submissions about whether this sentence could be suspended. We have also taken into account the fact that Mr Da Silva had served the equivalent of a three-month sentence of imprisonment before he had been sentenced and that he has, as is apparent from the material before us, complied with the sentencing requirements. There is always on a Reference an element of “we are where we are” in the sense that things have moved on from the sentencing. 32. In all these circumstances, we do consider that reflecting on: the three months' imprisonment that Mr Da Silva has served; his positive engagement with probation; and all the other relevant factors; this sentence can be suspended. 33. We will therefore quash the sentence of 18 months community order with requirements and impose a sentence of custody of 22 months' imprisonment, suspended for two years, with all the previous requirements attached on each of the five counts, concurrent with each other. That is an alcohol abstinence and monitoring requirement for 30 days, a rehabilitation activity requirement for 30 days and an unpaid work requirement for 120 hours. Mr Da Silva should understand that if he commits any offence within the period of the suspended sentence of whatever type he will be brought back to court and sentenced for that separate offence and the suspended sentence may be activated in full or in part. 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]

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[2023] EWCA Crim 1475

EWCA_Crim_1475

2023-10-25

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION SITTING AT SWANSEA CROWN COURT CASE NO 202301084/B3 [2023] EWCA Crim 1475 The Law Courts St Helen’s Road Swansea, West Glamorgan SA1 4PF Wednesday 25 October 2023 Before: THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION (LORD JUSTICE HOLROYDE) MR JUSTICE GRIFFITHS MRS JUSTICE COLLINS RICE DBE REX v GERAINT ALUN BALDWIN _________ 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 W BEBB appeared on behalf of the Applicant. MR J SCOULLER appeared on behalf of the Crown. ________ J U D G M E N T (Approved) 1. THE VICE-PRESIDENT: The applicant was tried in his absence and convicted of an offence of causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861 . He was subsequently sentenced to 6 years’ imprisonment. He now seeks an extension of time to apply for leave to appeal against his conviction. His applications have been referred to the Full Court by the single judge. 2. The charge arose out of an incident outside a public house in July 2021, which was captured on CCTV. The prosecution alleged that the applicant, then aged in his mid-30s and a man of very large build, had become increasingly aggressive towards a Mr George, who was at the public house with his wife and friends. The prosecution case was that the applicant said that he would kill Mr George. When Mr George replied that he was out with his wife and did not want any trouble, the applicant said that he would kill her too. A member of staff asked the applicant to leave. He did so but, as he left, he made further threats to Mr George and said that he would be waiting outside for him. 3. The prosecution case was that before leaving the public house with his wife, Mr George went outside alone and, in an attempt to defuse the situation, said that he was sorry for whatever he had done and did not want any trouble. The applicant responded with mockery and further threats. Fearing that he would be hit, Mr George headbutted the applicant, who then punched Mr George unconscious. As Mr George lay on the ground the applicant kicked him in the face and then used his bare foot to stamp on the side of Mr George’s face, pressing down on him. Mr George suffered multiple facial fractures and had to undergo surgery. 4. The applicant was arrested and interviewed under caution. He made no comment. 5. It is unnecessary to say more about the facts of the case. We turn to the procedural history, which we must set out in some detail. 6. On 8 November 2021 the applicant was sent on unconditional bail for trial in the Crown Court at Cardiff. He was represented by solicitors, and appears initially to have co-operated with them. He told them that he did not wish to apply for legal aid. 7. At a plea and trial preparation hearing on 6 December 2021, he pleaded not guilty. A trial date was fixed for 27 June 2022, and the judge warned the applicant that, if he failed to attend, the trial may proceed in his absence. 8. On 17 February 2022 the applicant filed a Defence Statement, in which he denied the charges, denied the detailed allegations against him and asserted that he had acted in self-defence. He gave a number of particulars of his case. 9. At a hearing on 23 June 2022, at which the applicant was not required to be present, the trial date was vacated. The case was re-listed for trial in the Crown Court at Cardiff on 17 January 2023, which would be some 18 months after the incident. 10. We note in passing that in September 2022 the applicant was convicted by a magistrates’ court of unrelated offences and was ordered to pay a fine, costs and compensation. We do not know whether he was legally represented in those proceedings. 11. On Friday 13 January 2023, the solicitors wrote to the court indicating that they had been having difficulties contacting the applicant. A case management hearing was therefore listed on Monday 16 January 2023 at Cardiff, which the applicant again was not required to attend. The court at that hearing directed that the solicitors must provide further details, that the trial should remain in the list for trial in the Crown Court at Newport on the following day, but that no witnesses should attend on that day. 12. On Tuesday 17 January 2023, the solicitors wrote to the court providing the following information. 1. At the time when the first trial date was vacated, the applicant had not put them in funds. 2. A WhatsApp message had been sent to the applicant on 24 June 2022 “informing him that the case was put back to January, requesting confirmation that he had received the message, which he confirmed he had”. 3. Between early September and late December 2022 the solicitors sent text messages and letters to the applicant, asking him to contact them to put them in funds and to discuss the preparation of his case for trial. None of these elicited any response. 4. The solicitors had made further attempts to contact the applicant following the hearing the previous day. They had called the mobile number which they held for the applicant and left a message, but he had not returned the call. They had called the landline number which they held for him. That call had been answered by a woman who said that the applicant did not live there and then hung up. They had sent a WhatsApp message which did not appear to be received or opened. 13. That letter was considered by the trial judge, HHJ Richard Williams, at the hearing in Newport on 17 January 2023. The applicant did not attend. The judge sensibly took steps to ensure that the applicant’s name be called in the Crown Court at Cardiff, in case he had gone there in error, but there was no response. Counsel who had initially been instructed to represent the applicant linked in to the hearing remotely in order to assist the judge. The judge summarised the history, saying that the solicitor’s letter showed that the applicant was “aware of today’s trial date”. He concluded from the contents of that letter that he could safely find that the applicant was aware of the trial date. Defence counsel confirmed that the judge’s summary of history was “an accurate one as far as I’ve been made aware from my instructing solicitors”. Counsel expressed his continuing willingness to assist the court if he could, but said that he was without instructions to enable him to play any effective part in the trial. He asked the court to release him from the case, and the judge did so. 14. Counsel then appearing for the prosecution invited the judge to consider issuing a warrant for the applicant’s arrest and trying the applicant in his absence. The judge indicated that he had considered the relevant case law. He issued a warrant, not backed for bail, but deferred any further decision until the following morning. 15. On the morning of 18 January 2023, the applicant again was not present. The judge’s understanding was that efforts to arrest the applicant pursuant to the warrant had been unsuccessful, though there was no information as to precisely what efforts had been made. The judge again reviewed the history, noting that the applicant had not engaged with his solicitor since June 2022 and had not put them in funds, so that they were no longer acting. He found that the applicant was aware of the trial date and was voluntarily absent from the trial. He concluded: “ The witnesses are at court. The incident giving rise to the trial took place as long ago as 11 July 2021 and there is no reasonable prospect of the accused being apprehended and brought to court within the current timetable for the case. If the case has to be adjourned, it is likely to have to be adjourned for some time. It’s not known whether efforts to arrest the Defendant on the warrant which was issued yesterday will prove successful and it seems to me that in these circumstances, the compelling interests of justice are to proceed to trial in his absence .” 16. The trial accordingly proceeded with the applicant absent and unrepresented. The prosecution adduced oral evidence from a number of witnesses, including Mr George, and a man who had, at one point, intervened in events inside the public house. The jury saw the CCTV footage and a number of witness statements were read. 17. The evidence was concluded within the court day, and the judge then summed-up. No criticism is made of his directions of law. He directed the jury not to hold it against the applicant that he had not answered questions in interview. He then said: “As part of these proceedings, the defendant was required to tell the court and the prosecution about the general nature of his defence and what it was that he disputes about the prosecution case, and why. The defendant did so in a defence statement, which forms part of the digital case record. Whilst what a defendant says in a defence statement cannot be evidence in the case, it is fair and proper that you should know what the general nature of his defence is according to that defence statement. The defendant accepted being present at Fagins bar. He denied making any threats. He said the complainant was the aggressor and that he acted in self defence.” 18. The judge then gave a conventional direction about self-defence. He later concluded his directions of law by saying: “The defendant’s absence. Finally, I remind you of what I told you at the start of the trial. The defendant has previously pleaded not guilty. The fact that the defendant is not here does not affect your task, which is to decide whether or not the defendant is guilty of the charge against him. The defendant’s absence is not evidence against the defendant and it must not affect your judgment.” 19. The jury retired to consider their verdict shortly after 4.00 pm. They were sent home at about 4.40 pm. The judge then indicated to prosecution counsel that there had been “contact” from the applicant’s solicitors. He alerted counsel to the need to consider the “novel situation” which might arise if, on the following day, the applicant surrendered to custody before the jury had reached their verdict. 20. Mr Bebb, counsel who represents the applicant in this court, has helpfully been able to add some further information. He tells us, and of course we accept from him, that on 18 January 2023, in the afternoon, the applicant contacted the solicitors after having been told that the police had been to his parents’ home. He asked the solicitors to make an application for legal aid which they were shortly to do. He had not, at that stage, been arrested. He was however arrested at 5.00 pm on 18 January, and was held overnight at a police station. 21. None of those details were known to the judge when the court sat on the morning of 19 January. The appellant was not present in the court building. The judge was told that the applicant was absent, and that there was no information as to whether he had been arrested. The judge indicated that the trial would continue, and the position would be reviewed if the applicant did attend whilst the jury were deliberating. In the event, that did not happen. In the course of the morning, the jury returned their guilty verdict and were discharged. 22. The applicant was produced before the court at 2 o’clock that afternoon. He admitted that he had failed without reasonable excuse to surrender on 16 and 17 January. He was remanded in custody to await the sentencing hearing. 23. Counsel, who had initially been instructed, was once again present to assist the court. He said that the applicant apologised for his failure to attend court. The applicant’s instructions were that there had been a “communication error” between his solicitors and him. He had changed the number of his mobile phone without informing them, and he had not received any of their letters. 24. Mr Bebb puts forward two grounds of appeal. First, he submits that the judge was wrong to proceed with the trial in the absence of the applicant. He relies on the principles stated by this Court in R v Hayward [2001] EWCA Crim 168 at paragraph 22, which were approved on appeal to the House of Lords in R v Jones [2002] UKHL 5 . He also relies on the observation of this Court in R v Lopez [2013] EWCA Crim 1744 , that the utmost care is necessary when deciding whether to proceed with a trial in the absence of the accused, and that such a course should rarely be adopted. 25. Mr Bebb submits that the solicitor’s letter of 17 January 2023 did not provide a basis for the finding that the applicant was aware of the specific trial date. Further, he submits that there was no evidence that the applicant was ever informed that the trial had been moved from Cardiff to Newport. Mr Bebb accepts that the applicant had failed to keep in touch with his solicitors, but points to the initial period when he had been fully engaged in preparing his defence. There was, he submits, no clear evidence that the applicant had waived his right to attend his trial. 26. Mr Bebb emphasises the prejudice to the applicant caused by a trial proceeding in the applicant’s absence, when he was also unrepresented, in a case where the defence of self-defence would largely depend upon the applicant’s own account. Moreover, Mr Bebb submits that the judge, on 18 January, failed to make sufficient inquiries into the efforts made to arrest the applicant, and failed on 19 January to make sufficient inquiry into what had happened since the solicitor’s communication the previous afternoon. As events proved, Mr Bebb points out, a short adjournment would have sufficed to enable the applicant to attend and take part in his trial. 27. The second ground of appeal is that the judge’s very brief summary of the Defence Statement, which we have quoted earlier in this judgment, did not adequately set out the nature of the applicant’s defence. In particular, Mr Bebb submits, fairness required the judge to say more in relation to the applicant’s case as to the initial headbutt delivered by Mr George. The relevant passages in the Defence Statement were to the effect that the applicant had suffered excruciating pain, and believed that the kick which he then delivered, with an unshod foot, was reasonable in order to prevent any further assault on him by Mr George. 28. Both grounds of appeal are opposed by Mr Scouller, who represents the respondent in this court. He submits that the judge was entitled to find that the applicant was aware of the precise date and was entitled to order that the trial proceed in the applicant’s absence. He suggests that the arguments to the contrary are largely based on information which was not available to the judge at the time when the judge had to make his decisions. He goes on to submit that the applicant’s case was adequately stated by the judge to the jury. In any event, it was unnecessary for the judge to say much about the facts of the incident because the CCTV footage provided the jury with a clear picture of what happened. 29. We are grateful to both counsel for their submissions, which have been very helpful to the court. 30. Before coming to our conclusions, we make an initial observation. It is regrettable that the Crown Court was only informed at a very late stage that the defence solicitors were not in funds and had not had any contact with the applicant for about 6 months. We understand the pressures on defence solicitors, and we do not wish to criticise when we have not heard from the solicitors concerned. But in circumstances where there was every likelihood that the applicant would not be represented at his trial, it seems to us that more should have been done in early January to try to contact the applicant and to notify the court and the prosecution in good time if those attempts were unsuccessful. 31. Turning to the grounds of appeal, the principles applicable to trials in the absence of the accused are encapsulated in rule 25.2 of the Criminal Procedure Rules. So far as is material for present purposes paragraph (b) of that rule provides: “(b) the court must not proceed if the defendant is absent, unless the court is satisfied that— (i) the defendant has waived the right to attend, and (ii) the trial will be fair despite the defendant’s absence...” 32. At paragraph 22 of the judgment in Hayward , this court stated six guiding principles: “1. A defendant has, in general, a right to be present at his trial and a right to be legally represented. 2. Those rights can be waived, separately or together, wholly or in part, by the defendant himself. They may be wholly waived if, knowing, or having the means of knowledge, as to when and where his trial is to take place, he deliberately and voluntarily absents himself and/or withdraws instructions from those representing him. They may be waived in part if, being present and represented at the outset, the defendant, during the course of the trial, behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws his instructions from those representing him. 3. The trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal representatives. 4. That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented. 5. In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including, in particular: (i) the nature and circumstances of the defendant’s behaviour in absenting himself from the trial or disrupting it, as the case may be and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear; (ii) whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings; (iii) the likely length of such an adjournment; (iv) whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation; (v) whether an absent defendant’s legal representatives are able to receive instructions from him during the trial and the extent to which they are able to present his defence; (vi) the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him; (vii) the risk of the jury reaching an improper conclusion about the absence of the defendant; (viii) the seriousness of the offence, which affects defendant, victim and public; (ix) the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates; (x) the effect of delay on the memories of witnesses; (xi) where there is more than one defendant and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present. (6) 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.” 33. Turning to the first ground of appeal, we see the force of Mr Bebb’s submissions and we accept that the manner in which the judge addressed the issues he had to decide is open to some criticism. In particular, the judge would have been wise to identify more fully than he did in his rulings the information he was given about efforts made to arrest the applicant and about the contact which the defence solicitors made with the court on the afternoon of 18 January 2023. He should also have expressed his assessment of the factors listed in Hayward . That said however, we are not persuaded that the judge’s decisions to commence and, later, to continue the trial in the absence of the applicant were outside the legitimate boundaries of his discretion. We think it is important to consider those decisions sequentially and, in doing so, to avoid falling into the trap of investing the judge with the benefit of the hindsight which this court now has. 34. We have no doubt that on 17 January 2023 the judge was entitled to find that the applicant was aware of the specific trial date. Although the solicitor’s letter of that date was worded rather imprecisely, common sense and experience strongly suggest that the WhatsApp message, which the applicant had admittedly received in June 2022, would have informed him of the precise trial date and would not simply have referred to the month of January. That inference is reinforced by the consideration which Mr Scouller urges upon us, that a firm privately instructed and not in funds would have a particular incentive to make clear to their client the precise date of his trial, and therefore the date by which they would need to be in funds. It is further confirmed, in our view, by defence counsel’s acceptance of the accuracy of the summary given by the judge on 17 January. In any event, even if the applicant had only been told in June 2022 that his trial would be some time in the following January, the burden was on him to ensure that he ascertained the specific date so that he could comply with his duty to surrender to his bail. 35. By the admission which he made on the afternoon of 19 January 2023, the applicant was later to admit that he had no reasonable excuse for his failure to surrender. But on 18 January, when the judge decided that the trial should commence, there was no excuse or explanation whatsoever, whether reasonable or otherwise. The information available to the judge was to the effect that the applicant had in effect disabled himself from being represented, by making no application for legal aid but then failing to put his solicitors in funds. There was nothing to suggest that the applicant had taken those steps because he had actively wished to represent himself. His failure to attend court had to be viewed in the context of his failure over the preceding 6 months to make any contact with the solicitors who were still representing him. The possibility that the applicant may have gone to the wrong court had rightly been considered by the judge on the previous day, and excluded by the confirmation that the applicant had not answered his name when it was called in the Crown Court at Cardiff. The judge understood, correctly, that the applicant had not been arrested pursuant to the warrant. The judge was therefore entitled to proceed on the basis that the applicant had simply chosen not to instruct his solicitors, and not to attend the trial date of which he was aware, and had thereby waived his right to be present and represented. 36. In short, the judge was, in our view, entitled to make the following assessment of the factors mentioned in paragraph 22(5) of Hayward : (i) On the information available the applicant’s behaviour was deliberate, voluntary and a waiver of his right to appear. (ii) It was reasonable to expect that the applicant could be arrested within a fairly short time, but there was no basis for any confidence that he would be arrested or would attend voluntarily during the short time slot for the trial, which had been listed for several months. (iii) The likely length of any adjournment was therefore substantial. (iv) By his conduct, the applicant had waived his right to representation. (v) Not applicable. because he had waived his right to representation. (vi) The applicant would certainly be at a disadvantage in not being able to give evidence in support of his defence of self-defence; but that was by his choice. (vii) Any such risk could be cured by the appropriate direction which the judge was later to give. (viii) It was a very serious offence and the victim and other witnesses had already been waiting some 18 months. (ix) There was a strong public interest in the trial taking place forthwith, provided that could be done without compromising the fairness of the trial. (x) Further delay would be likely to make it harder for witnesses to recall details of the events, although the CCTV footage was available as a clear indication of the violence outside the public house. (xi) Not applicable. 37. We would add that the information now available to this court is no more helpful to the applicant. It is now apparent that he had not only changed his mobile phone number without telling solicitors, but had also moved address without telling them. He had failed to make any contact with his solicitors for months. These were highly culpable failures on the part of a man who knew he was facing trial on a very serious charge. An explanation has today been provided of why the solicitor’s most recent attempt to contact him on the landline number which they held for him proved fruitless. It is not a satisfactory explanation. 38. Looking at the matter overall, it is, with respect, disingenuous of the applicant to refer to the circumstances as a communication error. The reality is that he had simply ceased contact with his solicitors for months before the date when he knew he would be tried on a serious charge. We note also that, even when he learned the police had been looking for him at his parents’ home on 18 January 2023, he did not attend the court voluntarily. 39. The judge of course had to take into account the fact that the trial date was already 18 months after the incident, that the witnesses were present at court and that a new trial date would likely be a substantial period in the future. At no point during the short trial was the judge informed that the applicant had been arrested pursuant to the warrant. Although the defence solicitors made contact on the afternoon of 18 January 2023, the applicant did not attend court or take any other step to surrender to his bail. The judge could not know how lengthy any adjournment would prove to be if he paused the trial to await further information and the attendance of the applicant. 40. Given that these circumstances have arisen from the applicant’s own choices and failures, we are unable to accept the submission that in the circumstances of this case the judge should have made more inquiries and allowed more time than he did. 41. We emphasise that we are not concerned with, and therefore do not address, the position which would have obtained if the applicant had attended court before the jury had returned their verdict. We do however observe that although there is no longer an absolute rule that no further evidence should be given to the jury after the summing-up, this court confirmed in R v Dunster [2021] EWCA Crim 1555 ; [2022] 1 Cr App R 12 , at paragraph 32, that it is not possible, at that stage, to re-open the evidence generally or to permit further speeches to be made. 42. As to the second ground of appeal, the judge rightly told the jury that the purpose of the Defence Statement was to set out the nature of the defence case and he told the jury what the defence was. We are not persuaded that in the circumstances of this case the judge was required to do more than he did. The judge had a power, under section 6 (e) of the Criminal Procedures and Investigations Act 1996 , to direct that the jury be given a copy of the Defence Statement, if he was of the opinion that seeing it would help the jury to understand the case, or to resolve any issue in the case. Here, he was entitled to proceed on the basis that those criteria were not satisfied. The appellant was not entitled to have the document put before the jury or read in its entirety as if it were his evidence. 43. As to Mr Bebb’s specific criticism, which we have noted at paragraph 21 above, there had been no waiver of legal professional privilege: for the judge to have read to the jury some part or parts of the Defence Statement, but not others, would therefore have involved the judge in making editorial decisions, in circumstances where he did not know whether the applicant would still wish to put forward a case in precisely the same terms. Moreover, having viewed for ourselves the CCTV footage, it seems to us that there was a clear potential for any such selection by the judge to have the inadvertent and unintended consequence of actually making matters worse for the applicant. 44. We are satisfied that the applicant received a fair trial. He was absent from it, and unrepresented, by choice. The judge took appropriate steps to ensure the fairness of proceedings by his directions of law and by his summary of the case which the applicant had put forward in his Defence Statement. In those circumstances, grateful though we are for the advocacy of Mr Bebb on behalf of the applicant, we are satisfied that the conviction is safe. 45. The explanation given for the delay in giving notice of appeal is not entirely satisfactory. We would nonetheless have been willing to extend time, if we had thought there was merit in the grounds of appeal. As it is, no purpose will be served by an extension of time because an appeal has no prospect of success. The applications for an extension of time and for leave to appeal against conviction are accordingly refused. 46. Mr Bebb and Mr Scouller, can I just, through you, try to beat once again a drum which I am afraid I regularly have to beat. It is not enough for Bar clerks to email the court a matter of hours before a listed hearing before the Court of Appeal in the apparent belief that a simple administrative decision can be made as to whether or not counsel can attend remotely. It is not an administrative decision, it is a judicial decision. Time is needed for the court to consider it. Mr Bebb, I am afraid there was a request for you yesterday which I refused, because I was travelling to this building, as was the associate to whom the email was forwarded, and by the time each of us saw it, it was too late to do anything about it, even if minded to do so. I am sorry if it caused inconvenience in other proceedings, but a request that comes so late can’t really be expected to prosper. So do, please, spread the word at the Bar, it is not an administrative decision. It is not a box which can be ticked within a minute or two. Time is required. If counsel are going to say, ‘I’m part heard in a trial’, that is not something which has crept up unnoticed only a couple of hours earlier. There is plenty of time to warn us in advance. 47. MR BEBB: Noted my Lord. Thank you. 48. THE VICE-PRESIDENT: Thank you both for your assistance. Mr Bebb, particularly, you had a difficult task, and thank you very much. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]

2023_10_25-5872.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1475/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1475

5383d1a3cd93ec18d0515bc339ead7b131771c8538b91a1803cb9109474b654c

[2018] EWCA Crim 2891

EWCA_Crim_2891

2018-07-18

crown_court

Neutral Citation Number: [2018] EWCA Crim 2891 No: 201801371/A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 18 July 2018 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE JULIAN KNOWLES RECORDER OF BIRMINGHAM HIS HONOUR JUDGE INMAN QC (Sitting as a Judge of the CACD) REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A v A.M. Mr William Emlyn Jones appeared on behalf of the Attorney General Mr Khadim Al'Has

Neutral Citation Number: [2018] EWCA Crim 2891 No: 201801371/A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 18 July 2018 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE JULIAN KNOWLES RECORDER OF BIRMINGHAM HIS HONOUR JUDGE INMAN QC (Sitting as a Judge of the CACD) REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A v A.M. Mr William Emlyn Jones appeared on behalf of the Attorney General Mr Khadim Al'Hassan appeared on behalf of the Offender Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. J U D G M E N T (Approved) 1. LORD JUSTICE HOLROYDE: On 5 January 2018, after a trial before a recorder and a jury in the Crown Court at Bradford, Ansar Mahmood, to whom we shall refer as the offender, was convicted of a total of eight sexual offences committed against his stepdaughter when she was aged between seven and 14. On 7 March 2018 he was sentenced by the recorder to a special custodial sentence under section 236A of the Criminal Justice Act 2003, comprising a custodial term of 15 years and an extension period of one year. He was also made subject to a Sexual Harm Prevention Order of indefinite duration, about which no issue arises. Her Majesty's Attorney General considers the custodial sentence to be unduly lenient and so applies, pursuant to section 36 of the Criminal Justice Act 1988, for leave to refer the case to this court so that the sentencing may be reviewed. 2. The victim of the offences, to whom we shall refer as "S", is entitled to the protection of the provisions of the Sexual Offences (Amendment) Act 1992. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall, during her lifetime be included in any publication if it is likely to lead members of the public to identify her as the victim of the offence. This prohibition continues to apply unless varied or lifted in accordance with section 3 of the Act. This judgment must be anonymised accordingly. 3. We can summarise the relevant offending substantially by adopting the terms of the factual summary in the Final Reference. In 2008 the offender married S's mother. S was then aged five; her brother was aged eight. Initially she felt that the offender was nice to her. After a time however he began to ask her things that made her feel uncomfortable, such as whether her father used to touch her on her chest or between her legs and whether her father used to get into bed with her. As a result, S tried to keep away from him, but the offender began to force her to come close to him and to touch her. When they were alone, a situation which the offender would engineer either by sending S's older brother upstairs if he was present in the living room or by pulling S into her bedroom, he would put his hand up S's top and touch her chest. If S's mother came into the room he would move away and pretend that he and S had just been talking. He also instructed S not to tell anyone what he was doing and offered to give her money or take her shopping as an incentive to keep quiet. 4. Having begun when S was seven years old, this offending happened more frequently as time went on. It was reflected in count 5 of the indictment, a multiple incident count of sexual assault of a child aged under 13, contrary to section 7 of the Sexual Offences Act 2003. Count 5 alleged that the offence had occurred "on at least five occasions" between S's seventh and thirteenth birthdays. 5. The offender raped S for the first time when she was aged just eight or nine, that offence being charged in count 1 as rape of a child aged under 13 contrary to section 5 of the 2003 Act. There was then a period when full sexual intercourse was not repeated, but the offender did carry on assaulting S as previously described. 6. In January 2013, shortly after S's tenth birthday, her mother gave birth to another daughter. There were four or five occasions during her mother's pregnancy when S was taken out by the offender in his car and driven to a quiet location. On each of these occasions the offender ordered S to get into the back of the car. She complied through fear. He would put down the seats, lie her down, put his hand up her top and touch her breasts under her clothing. He would also put his hand down her trousers and insert the tip of his finger into her vagina for a few seconds. This was reflected in count 6, a multiple incident count of assault of a child aged under 13 by penetration, contrary to section 6 of the 2003 Act, on at least two occasions between January 2012 and January 2013 when S was aged nine or 10. Again, the offender would instruct her not to tell anyone about this. S stopped going out with him in his car. 7. S described a specific occasion on an evening when her mother was in hospital giving birth. The offender came into her bedroom whilst she was lying on her bed. He tried to touch her breasts but S moved to prevent this. He then removed his own clothing and lay down next to her. He encouraged her to remove her clothing. He then climbed on top of her, pulled her lower clothing down and tried to penetrate her vagina with his penis. He did not succeed and S managed to get away from him and left the room. This attempt to rape S when she was aged 10 was reflected in count 4, which charged attempted rape of a child aged under 13, contrary to section 1 of the Criminal Attempts Act 1981. 8. When S was aged 10 or 11 the offender raped her again, and thereafter did so repeatedly until the summer of 2016 when S was 13. The rapes were often committed in S's bedroom. The offender would come into the room when S was in bed, remove his clothing, force S down and rape her vaginally. She described him as "quite heavy handed". When he withdrew from her, S saw him ejaculate, from which it may be inferred that he was not using a condom. The offender also raped S in the back of his car. 9. These repeated offences were reflected in counts 2 and 3, which charged further offences contrary to section 5 of the 2003 Act: a multiple incident count alleging that the offender raped S on at least five occasions between her tenth and thirteenth birthdays, and a further multiple incident count alleging that the offence was committed on at least five occasions after her 13th birthday. 10. In January 2016, when S was aged just 13, her mother gave birth to another child. On an occasion when the mother was in hospital the offender sexually assaulted S in the living room by pulling her towards him, touching her breasts under her clothing and putting his finger into her vagina. Her three siblings were present. During that same period the offender had done the same thing to her in her bedroom. This conduct was reflected in counts 7 and 8, sexual assault contrary to section 3 of the Act and assault by penetration contrary to section 2 of the Act. 11. S had not told anyone what the offender had done to her over the years. She explained that sometimes he could be very angry and that she was scared of him. However, her school attendance dropped to the extent that social services became involved and S was assigned to a children's mentor. It was to her mentor that on 28 June 2016 S first disclosed that the offender would "feel her up". The matter was referred to the police. The offender was arrested and interviewed under caution. He denied any sexual activity with S and accused her of telling lies. He maintained these denials at trial, but was convicted of all offences. 12. The offences caused severe harm to S. In her personal statement she described a childhood characterised by fear and unhappiness as a result of her abuse. Her relationships with her mother and siblings have suffered, leaving her sad and lonely. Her school work has also suffered. She feels unable to trust anyone and is bullied at school by people who know what has happened to her. She says she feels that, "No one will ever care about me. I have absolutely no confidence and I feel like my reputation has been shattered. I feel like I have been used and I have lost all respect for myself." She described the process of telling the police about the abuse and giving evidence at the court as "overwhelming" and "quite frightening", although it is apparent that she faced that process with great courage. She says that she feels she is trapped in a life which she did not ask for. 13. Each of the offences of which the offender was convicted is a specified offence for the purposes of the dangerousness provisions contained in Chapter 5 of Part 12 of the Criminal Justice Act 2003. In addition, the offences charged in counts 1, 2, 4 and 6 are offences to which the provisions of section 236A of that Act apply. These provisions have the effect that in the case of an offender of particular concern who is not sentenced to imprisonment for life or to an extended sentence, the court must pass a special custodial sentence which includes an additional period of one year's licence. 14. The offender had no previous convictions. A pre-sentence report indicated that he continued to deny the offences and accordingly showed no insight into his offending. The author of the report invited the court to consider whether an extended determinate sentence would be the best way to manage future risk. At an early stage of the sentencing hearing, the recorder gave the following indication of his approach: "I propose to reflect the overall behaviour with sentences in relation to counts 1, 2 and 3, and I bear in mind that the effect of some of the convictions means that the defendant has to be deemed an offender of particular concern, with the result that he has an extended licence and he cannot apply for parole until he has completed two thirds of his sentence. ... So obviously the dangerous provisions, whilst I have to consider them, I do not propose to apply them in this case..." In his sentencing remarks, the recorder summarised the circumstances of the offending which he described as a campaign of sexual abuse of S from the age of about seven until her 14th year. He noted that S had been entitled to look to the offender for protection and support but he had instead systematically abused her for years and had shown no remorse. The recorder summarised the offending in these terms: "It goes without saying that these are offences of the utmost gravity, committed over a significant period of time, and starting when [S] was only seven years of age. There was planning and grooming on your part, and there was the grossest abuse of your position as her step father. The offences will have a hugely detrimental effect on the psychological welfare of [S] for years to come, and although we all hope that this is not the case, she may be unable to enjoy a normal life. You have taken that away from her." 15. Consistently with the approach which he had indicated earlier, the recorder went on to say that he did not intend to pass a sentence under the dangerousness provisions of the 2003 Act. He took into account the contents of the pre-sentence report, the fact that the offender had no previous convictions and the fact that whilst in this country the offender had been a hard-working man. He then imposed concurrent sentences as follows. On counts 1 and 2, special custodial sentences under section 236A comprising a custodial term of 15 years' imprisonment, plus one year's extended licence; counts 4 and 6, special custodial terms comprising a custodial sentence term of eight years' imprisonment plus one year's extended licence; count 3, 15 years' imprisonment; count 8, six years' imprisonment; counts 5 and 7, four years' imprisonment. The recorder concluded by purporting to explain the effect of the sentences in the following words: "The effect of that is that you will be eligible for parole after serving two thirds of the fifteen-year sentence." Regrettably, neither counsel then appearing pointed out to the recorder that he was in error in his understanding of the release provisions applicable to offenders of particular concern. Where a special custodial sentence is imposed pursuant to section 236A, the Secretary of State must refer the offender to the Parole Board when the offender has served half his custodial term. The Parole Board will then consider whether it is necessary for the protection of the public that the offender should continue to be in custody. It is therefore possible for the offender to be released on licence after he has served half his custodial term and the recorder was accordingly mistaken in thinking and in telling the offender that there could be no possibility of his being released on licence until he had served two-thirds of the 15-year custodial term. We are unable to say whether that error may have played any part in the approach which the recorder took to the issue of dangerousness, about which he said nothing in his sentencing remarks apart from the few words which we have quoted. 16. We are grateful for the written and oral submissions we have received from Mr Jones for the Attorney General and Mr Al'Hassan for the offender, neither of whom appeared below. 17. Mr Jones submits that the total sentence was unduly lenient. He points to the following aggravating features. As to harm, there was severe psychological harm caused to the victim; at the outset of the offending S was particularly vulnerable by virtue of her extreme youth and her personal circumstances as the offender's stepdaughter living in his home; the offending had been sustained over a period of approximately six years, during which there had been multiple offences including at least 11 rapes (six of them when S was aged under 13). As to culpability, the offences involved a gross abuse of trust and features of grooming behaviour. There were additional aggravating features of ejaculation, steps being taken to ensure that the offending was not reported and the presence of other children on one occasion. Mr Jones submits that there appears to be no mitigation other than the offender's previous good character. He points out that under the Sentencing Council's Definitive Guideline on sentencing for offences contrary to the Sexual Offences Act 2003, the rapes were Category 2A offences of rape of a child under 13. For a single such offence the guideline starting point is 13 years' custody. Given that the offending amounted to a campaign of rape, as the learned recorder recognised, involving at least 11 offences of rape and many other sexual assaults, Mr Jones submits that a total sentence of 15 years' custody plus the additional year of licence did not properly reflect the gravity of the overall offending. 18. Mr Al'Hassan agrees that the rape offences fall within Category 2A of the guideline. He submits however that the sentencing was not unduly lenient, even if it might appear to have been lenient. The learned recorder had had the advantage of hearing the trial and had heard the evidence both of S and of the offender. Mr Al'Hassan points not only to the previous good character, but also to the fact that no allegation is made of any sexual offence against either of the offender's other daughters, nor is any allegation made of any offending during the period when he was on bail in respect of these offences. Mr Al'Hassan draws to our attention that the offender appears to be making reasonable progress in prison, that he faces likely deportation at the end of his sentence and that the sentence is in any event a very lengthy one. 19. We have reflected on these submissions. We start by considering the guideline for a single offence of rape of a child aged under 13. As we have indicated, the guideline shows a starting point of 13 years. The category range is 11 to 17 years. We agree that the offences against S of rape were correctly assessed as falling within Category 2A in relation to the offences when she was aged under 13. We think it important to emphasise that they come within Category 2A for more than one reason. In determining harm the case comes within Category 2 both because of the severe psychological harm suffered by S and because when the rapes began she was particularly vulnerable due to her extreme youth and her personal circumstances. It comes within Level A culpability both because of the grooming behaviour and because of the abuse of trust. 20. At step 2 of the sentencing process, in deciding whether to move up or down from the guidelines starting point, the court is required to consider the aggravating and mitigating features. In addition to those aggravating features which have already been taken into account in reaching the appropriate category, there were the serious aspects of ejaculation and steps taken to prevent reporting. The principal mitigating factor was that the offender had no previous convictions. However, at page 31 of the guideline the following appears: "In the context of this offence, previous good character/exemplary conduct should not normally be given any significant weight and will not normally justify a reduction in what would otherwise be the appropriate sentence." The only other factors in the offender's favour were his history of hard work and the fact that he had brought upon himself the loss of his business and the prospect of deportation. In the face of such serious offending, these matters can carry little weight. 21. In those circumstances, it is in our view clear that the aggravating features significantly outweigh the mitigating features. As a result, even for a single offence of rape of S when she was aged under 13 the sentence should have been in excess of the starting point of 13 years. 22. It is then necessary to take into account the number of offences. Over a period of about six years, as we have said, S was raped at least 11 times. There was in addition an attempt to rape her when she was under 13. The offender digitally penetrated her vagina at least twice when she was under 13 and again when she was over 13. He touched her breasts on at least five occasions when she was under 13 and again after her 13th birthday. On one of those occasions siblings were present. 23. With each of these crimes the offender added to the harm which he had already caused and increased the seriousness of his overall offending. We remind ourselves that in relation both to rape of a child aged under 13 and rape of an older victim, the guideline recognises the seriousness of repeated offending by saying "offences may be of such severity, for example involving a campaign of rape, that sentences of 20 years and above may be appropriate." 24. The recorder was in our view correct to reflect the overall criminality by concurrent sentences on counts 1 to 3. With respect to the recorder, however, we agree with the submission of the Attorney General that the recorder failed adequately to reflect the overall seriousness. The total custodial term of 15 years is only two years longer than the guideline starting point for the single offence charged in count 1 and, as we have indicated, each of the offences charged in counts 1, 2 and 3 merited in isolation a sentence in excess of that starting point. It is of course necessary to take account of totality. Even with that principle firmly in mind, however, we cannot think that a total custodial term of less than 20 years was appropriate. 25. We therefore grant leave to refer. We conclude that the total sentence was unduly lenient. We quash the sentences imposed on counts 1, 2 and 3. On counts 1 and 2 we substitute concurrent special custodial sentences pursuant to section 236A, comprising 20 years' custody plus one year's additional licence. On count 3 we substitute a determinate sentence of 20 years' imprisonment. All other sentences are as before. All sentences are to run concurrently. The Sexual Harm Prevention Order remains unaltered. Thus the total sentence becomes a special custodial sentence comprising a custodial term of 20 years and an extension period of one year. As we have explained, the offender will be eligible for consideration for release on licence after half that custodial term, but he has no entitlement to be released at that stage. When he is released he will be on licence for the remainder of the custodial term and for an additional year thereafter. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: [email protected]

2018_07_18-4357.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/2891/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/2891

622104197b67895a800c806c41472e58be2933487cb1ab493e743e0ae814ddf4

[2005] EWCA Crim 890

EWCA_Crim_890

2005-04-22

supreme_court

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 BEA

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.

2005_04_22-494.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/890/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/890

d8ded2568ab8824b39b677bfb930d133db098fb8aadc56784d6afdc073639183

[2017] EWCA Crim 2446

EWCA_Crim_2446

2017-12-12

crown_court

201702978A2 Neutral Citation Number: [2017] EWCA Crim 2446 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 12 th December 2017 B e f o r e: LORD JUSTICE SIMON MRS JUSTICE YIP DBE and HIS HONOUR JUDGE LUCRAFT QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - - - - - - - - - - - - - R E G I N A - v - ANDREW JOHN RUDD - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave Internat

201702978A2 Neutral Citation Number: [2017] EWCA Crim 2446 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 12 th December 2017 B e f o r e: LORD JUSTICE SIMON MRS JUSTICE YIP DBE and HIS HONOUR JUDGE LUCRAFT QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - - - - - - - - - - - - - R E G I N A - v - ANDREW JOHN RUDD - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd trading as DTI 165 Fleet Street, London EC4A 2DY Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - Mr J Pitter QC appeared on behalf of the Applicant - - - - - - - - - - - - - - - - - - - J U D G M E N T LORD JUSTICE SIMON: 1. On 6 th April 2016, in the Crown Court at Leeds, the appellant pleaded guilty to two offences which were identified as counts 1/1 and 2/1. Count 1/1 was an offence of doing an act tending and intended to pervert the course of justice, contrary to common law ("the York Road offence"). Count 2/1 was a charge of conspiracy to pervert the course of justice ("the Harewood Arms offence"). 2. On 23 rd March 2017, he pleaded guilty to a further offence, charged as count 3/2. This was another offence of doing acts tending and intended to pervert the course of justice ("the Medina offence"). 3. On 3 rd May 2017, he pleaded guilty to count 4/1, conspiracy to defraud ("the car washes offence"). 4. On 9 th June 2017, he was sentenced by His Honour Judge Bayliss QC as follows: on count 4/1 (car washes), 45 months' imprisonment; on count 1/1 (York Road), 18 months' imprisonment concurrent; on count 2/1 (Harewood Arms), 18 months' imprisonment consecutive; and on count 3/1 (Medina), six months imprisonment concurrent. The total sentence was 63 months' (five years three months) imprisonment. 5. The appellant appeals against that sentence with the leave of the single judge. 6. There were co-defendants to these charges who were dealt with on different occasions in circumstances to which we shall come. Those co-defendants who focus most significantly on this appeal are: John Elam, who received a total sentence of 90 months' imprisonment; and Philip Brown, who received a sentence of two years' imprisonment, followed by a suspended sentence order of twelve months' imprisonment suspended for two years. 7. It is convenient to summarise the offences by reference first to the York Road offence. In August 2005, three high value, unregistered motor vehicles were recovered following a police search of premises at York Road, Leeds, which were owned or controlled by Elam and the appellant. The vehicles belonged to the son of a co-accused, William Young. They had been imported from Holland as part of a VAT fraud. While the police investigation was ongoing, Elam, the appellant and Young planned and arranged for bogus faxes to be sent to the police by an associate of Elam based in Dubai. Two faxes, dated 6 th and 18 th September, purported to be from a Dubai registered company called Starlet LLC. The faxes claimed that the vehicles belonged to that company and had been stored at York Road on its behalf. They threatened legal action if the vehicles were not returned. Attempts were made to arrange for the creation of further false documents to be sent as proof of the ownership of the vehicles. 8. The Harewood Arms offence occurred as a result of an incident on 21 st October 2005 when Elam had assaulted a man called Andrew Elsy, the assistant bar manager of the Harewood Arms public house. He had thrown a heavy porcelain jug at Mr Elsy, which struck his left temple and resulted in a two inch cut. Elam was arrested and was due to face trial on 9 th June 2006. 9. Between September and December 2005 surveillance equipment installed by the police at the office used by Elam and the appellant recorded a number of conversations about the assault in which Elam and the appellant discussed a plan to induce Mr Elsy to withdraw his complaint. A man called Fowler was recruited to carry out the plan by approaching Mr Elsy, issuing veiled threats and offering large sums of money if he withdrew the complaint against Elam. 10. The Medina offence arose in relation to the Medina restaurant business. In April 2005 Christie & Co received instructions from the appellant to market the restaurant business for sale. On 25 th April 2005 the appellant signed an agreement with Christie & Co in which he told them that his solicitor was the co-defendant Philip Brown. The agreement gave sole selling rights to Christie & Co for six months and made the appellant personally liable for their fees. The Medina business was sold in September 2005, although not through Christie & Co, for approximately £260,000. According to the contractual terms of the sole agency agreement, the firm was entitled to commission on the sale amounting to £17,580. Christie & Co asked for details of the sale so that they could submit their bill. The appellant refused to disclose this information and instructed Brown, falsely, to represent that he no longer was instructed. Brown sent a letter to Christie & Co to that effect on 27 th May 2005. It was designed to interfere with contemplated legal proceedings by preventing or deterring Christie & Co from suing the appellant for their fees. Brown sent further letters to the same effect to the solicitors who had been instructed by Christie & Co to recover the sum due on the unpaid bill. 11. Those were the facts in relation to the charges of perverting the course of justice. 12. The car wash offence was a conspiracy to defraud the creditors of hand car wash businesses operated from nine different sites in and around Leeds and Bradford, between 5 th October 2000 and 8 th September 2006. A series of companies without assets were used to incur liabilities and debts associated with running the car washes, such as water and electricity bills, business rates, VAT, tax and National Insurance liabilities. A significant proportion of the liabilities were deliberately left unpaid. The operating companies failed and were replaced with other companies so as to avoid having to make payments to creditors. When creditors took steps to enforce payment, the operating company concerned would disappear to be replaced by a new one that was used to continue to operate the site. Steps were taken to create a pretence that the new operating companies were not connected with the ownership of the sites or the previous operating companies. Numerous creditors were unable to recover their losses and the liabilities totalled something of the order of £1.5 million. Elam was the principal beneficiary of the operations. The appellant's role was that of financial advisor and spokesman for Elam. He was further involved in the appointment of directors and the management of the businesses and was closely associated with Elam in the extraction and use of funds skimmed from the businesses. He was also involved in property deals and purchases. His involvement went back to early 2004, not to the beginning of the conspiracy; but his benefit from involvement was of the order of £100,000. 13. The appellant was aged 55 at the date of sentence. He had two previous convictions. On 17 th July 1987 he had been sentenced in the Crown Court at Leeds to three concurrent terms of nine months' imprisonment for offences of obtaining property by deception (with fourteen similar offences taken into consideration), and a further concurrent term of nine months' imprisonment for deception with intent to default permanently on liability, contrary to section 2(1)(b) of the Theft Act 1978. On 14 th October 1996, he had been sentenced in the Crown Court at Bradford to concurrent terms of 15 months' imprisonment for five offences of obtaining property or services by deception. 14. Elam was aged 51 at the date of his sentence. Prior to this series of offences, he had appeared before the courts on eight occasions between 1978 and 1995, largely for offences of violence. He had also been fined for obtaining property by deception in 1988. 15. Brown was aged 51 at the date of his first sentence. He had been of good character prior to the series of offences in which he was involved. 16. Although we have been referred to others of those involved in the conspiracy, little is known either of their participation or their antecedents. 17. On 10 th July 2019, Elam and Brown were sentence for the car wash offence (conspiracy to defraud) by His Honour Judge Wolstenholme. The judge noted that they had been involved over six years. Elam was the controlling mind behind what was a long-running and audacious fraud, which was operated largely for his benefit. He had pleaded guilty on the basis that there was a period of about nine months in 2004 when he had dropped out and the fraud was run by others. However, of the total indebtedness of about £.15 million caused by the fraud, he was responsible for roughly £1 million. He had been previously sentenced for other offences committed during the same period as this fraud. Of particular relevance was the large scale fraud relating to the Medina restaurant business run by him, with a related charge of perverting the course of justice for which he had previously been sentenced to a total of five years' imprisonment. Regard was had to totality. His guilty plea (although not at an early stage) had saved considerable time and expense of public money. The judge had given an indication that if Elam pleaded guilty at that stage, the sentence would not exceed a consecutive term of 30 months' imprisonment. He was in poor health. It was not necessary to pass the indicated sentence. The sentence was a term of 24 months' imprisonment, which was ordered to run consecutively to the term he was currently then serving. That sentence was upheld on appeal. 18. Brown had pleaded guilty to perverting the course of justice on the full facts and to conspiracy to conceal criminal property, on the basis that he had no involvement in the running of the car washes or the day-to-day involvement in the fraud. The judge described the offence of perverting the course of justice as another shocking example of his abuse of his position of trust as a solicitor, misleading others and causing them loss. Although he did not benefit personally beyond his legal fees, he enabled Elam to legitimise the fraudulent trading and keep the proceeds of it. He had already served three and a half years' imprisonment for similar offences committed at the same time. It was not, in the judge's view, in the public interest for him to be recalled to prison to serve a relatively short sentence. Accordingly, he adopted the proposal of suspending the term of twelve months' imprisonment for two years, with a 200 hour unpaid work requirement. 19. In passing sentence on the appellant on 9 th June 2017, the judge observed that each of the four offences was distinct in nature, although all arose from the appellant's association with Elam, and had occurred more than ten years before. The conspiracy to defraud (the car wash offence) was a phoenix fraud. The total liabilities evaded was more than £1.5 million. For part of the period of the indictment the appellant was a leading player in the conspiracy and played a role that was crucial to its operation. He enjoyed a trusted position at the heart of the operation. It was accepted on his behalf that he was involved from at least February 2004 until the police operation put an end to the fraud in September 2006 – a period of over two and a half years. In the process, he had enriched himself by more than £100,000. 20. The sentencing guideline on fraud applied. The appellant's culpability was high. He played a leading role in group offending. It involved sophistication and significant planning, and the fraudulent activity was conducted over a sustained period of time. The fraud as a whole fell into category 1 (£500,000 or more). The starting point, based on £1 million was seven years' imprisonment, and the range was five to eight years. The prosecution accepted that for the period during which the appellant was involved, the amount of the fraud (leaving aside unpaid VAT, which was difficult to assess) was £293,000. The starting point was, therefore, based on that figure which fell into category 2. The judge observed that the appellant had received more than £100,000 during his involvement, meaning that he had received as profit more than a third of the monies received. That was an indication of how deep his involvement in the fraud was and how close he was to the centre. Additionally, there was a significant aggravating feature. The appellant had two previous convictions, both for obtaining by deception, in 1987 and 1996. He had been sent to prison on both occasions. More than eleven years had elapsed since the fraud had occurred. But that delay was caused by the fact that the appellant was in Spain. 21. The appellant had also been involved in three determined attempts to frustrate the justice system. The judge then considered the facts of the three offences to which we have referred. It is unnecessary to say anything further about those, since they are not the focus of the present appeal. 22. Having regard to totality, the judge said that concurrent sentences would be passed on the offences of perverting the course of justice. The police had intended to arrest the appellant along with other suspects in September 2006, but he had recently married and had left the country to go on honeymoon. He had not returned voluntarily to the United Kingdom. A first arrest warrant was issued on 7 th November 2006. A further warrant was issued on 2 nd August 2010, and a European Arrest Warrant was obtained on 13 th October 2010. Despite that, the appellant remained in Spain. The Crown accepted that the appellant went to Spain for a legitimate purpose and that there was an indication of a threat to his safety by way of an informal approach to the appellant's son in 2006, notifying him that there was information suggesting that the appellant was thought by others to be the source of information leading to their arrests. 23. Notwithstanding the fact that the trials of the co-accused took place in 2008 and 2009, the appellant remained overseas. The trial process made it plain that the appellant was not the source of the information. The prosecution had confirmed that there was no disclosure to make in relation to any involvement on his part in the co-defendant’s arrest. It was artificial to suggest that he had stayed in Spain for all those years for that reason. Although it was not treated as an aggravating feature, the years in Spain did not afford any mitigation. 24. The appellant had in the end pleaded guilty, but not at the earliest opportunity. In the judge’s view, it would be wrong to afford him full credit for those pleas. Nevertheless, he accepted that there was considerable public benefit from the guilty pleas, even at a late stage. The sentences were discounted by 25 per cent to reflect those guilty pleas. 25. As a result of the appellant's absence, others in the fraud had been dealt with at different times by a different judge. That judge had considered the previous sentences passed on those co-defendants. It appeared that there were particular reasons for those sentences. Totality had been a significant feature in the case of Elam, who had to be dealt with for two frauds. What other mitigation Elam and the other co-accused had was a matter for speculation. 26. In the end, the appellant had to be dealt with on the basis of his case in accordance with the guidelines. Regard was had to the principle of totality. For the offences of perverting the course of justice, the total term would be one of 18 months' imprisonment. All the sentences for the offences of perverting the course of justice would be concurrent with each other, but consecutive to the sentence for conspiracy to defraud. That sentence was a term of 45 months' imprisonment, making a total of five years and three months' imprisonment. 27. In the grounds of appeal and before us Mr Pitter QC raised three overlapping points. First, he submitted that the judge was wrong to conclude that he was bound to follow the Sentencing Council Guidelines for Fraud and Bribery and Money Laundering offences; it was not in the interests of justice to follow them in the circumstances of the case. Secondly, he submitted that there was objectionable disparity between the appellant's overall sentence of five years and three months' imprisonment, when compared with the sentences passed on the co-defendants, primarily Elam and Brown. Reliance was placed on R v Fawcett (1983) 5 Cr App R(S) 158. In his oral submissions, Mr Pitter somewhat broadened his argument and related it to other co-accused about whom very little is known and about whom Mr Pitter was unable to tell us very much, other than that they figured on the "sentencing matrix" that he had prepared and which we have seen. Thirdly, he submitted that the starting point for the car wash offence was too high in the light of the appellant's confined culpability, his role in relation to the co-defendants, and again the principle of totality. 28. So far as the first point is concerned, in our view the judge was plainly right to have regard to the Guidelines, whatever view prosecuting counsel may have taken of the matter. They specifically apply to all those who are sentenced on or after 14 th October 2014, regardless of the date of the offence. Section 125 of the Coroners and Justice Act 2008 requires that the guidelines should be adopted, unless that is not in the interests of justice. The judge considered that the appellant's culpability was high (culpability A), in view of his leading role in what was a protracted and sophisticated fraud. No complaint can be made of that. He then looked at the question of harm, which was related to loss or intended loss. The judge took a figure of £293,000 and decided that the offending fell into category 2 (£100,000 to £500,000), with a starting point of five years' custody, based on £300,000, and a range of three to six years. The judge was entitled to take the top of the range in view of the significantly aggravating features of the appellant's two previous convictions for dishonesty offences. With credit of 25 per sent on six years, the sentence would have been four years and six months' (54 months) imprisonment. In fact, he imposed a sentence for the car washes offence of 45 months' imprisonment, to take into account the element of totality in relation to the three offences of perverting the course of justice, for which he had sentenced the appellant to 18 months' imprisonment, to be served consecutively. 29. In our view, there is no merit in the first point. We then move on, as did Mr Pitter, to the real source of his complaint, which is: that the application of the Guidelines led to an objectionable disparity with those sentenced earlier and without reference to the Guidelines. 30. We have already addressed the difficulties in relation to those others mentioned during Mr Pitter's oral argument. There are no sentencing remarks in relation to them and it is difficult to see on what basis they had been sentenced. 31. The prosecution said that the appellant was a leading player in the organisation. The judge, in our view, was entitled to sentence on that basis. The question then is whether the sentences (to use the phrase in Fawcett at page 161) were such that "right-thinking and properly informed members of the public with full knowledge of all the relevant facts would consider that something had gone wrong with the administration of justice" in the light of sentences passed on co-accused (our emphasis). The appearance of something having gone wrong with the administration of justice is an important part of the test. 32. There are, in our view, a number of difficulties with this argument, not the least of which is that the judge specifically addressed it in his sentencing remarks: "I turn now to the sentences passed by Judge Wolstenholme on co-accused. As a result of the [appellant's] absence, others in this fraud were dealt [with] at different times by a different judge and I have been enjoined to have regard to his sentences, and that I do, but, having considered the sentences passed by Judge Wolstenholme, it seems that there may have been particular reasons for him passing the sentences that he did in 2010. Totality was, no doubt, a significant feature in the case of Elam, who fell to be dealt with for two frauds. What other mitigation Elam had and what mitigation there was for the co-accused is a matter for speculation." It is apparent, at least from the information that we have, that Elam was in poor health. 33. Brown had been sentenced to two years' imprisonment for a conspiracy in relation to Medina, and to a concurrent term of twelve months' imprisonment in relation to a separate charge of perverting the course of justice. It may be said that the sentence was lenient in his case; but the circumstances in which he was sentenced to two years' imprisonment are unclear. What is clear is that in the second sentencing exercise in 2010, after he had been released from prison, he was sentenced for perverting the course of justice in relation to car washes (count 11), not the conspiracy to defraud, and conspiracy to conceal criminal property (count 12). In our view, his position is not comparable to that of the appellant. 34. Elam appears to have been initially sentenced to a term of five and a half years' imprisonment (not five years, as Judge Wolstenholme appears to have thought): two years for three charges of perverting the course of justice (Harewood Arms, York Road and another incident), and three and a half years for a conspiracy to defraud (Medina). In 2010 he was sentenced to a further two years' imprisonment in relation to the car washes conspiracy, making a total of seven and a half years' imprisonment (90 months). 35. We are not persuaded that there is objectionable disparity with the overall sentences passed on Brown and Elam. The facts in relation to the earlier sentencing are not clear. But Brown's criminal participation in the criminal activities was limited and different to the appellant's, as reflected by the charges he faced. Elam's lengthy sentence and further sentence cannot be said to give rise to objectionable disparity. This, and the closely related third point do not come near to satisfying the stringent Fawcett test. 36. Accordingly, the appeal against sentence is dismissed.

2017_12_12-4121.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/2446/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/2446

faf40596d686c638c4fdb6335c9af0e41af69170cf07bd4a04c5b421cfec645c

[2023] EWCA Crim 1335

EWCA_Crim_1335

2023-11-15

crown_court

Neutral Citation Number: [2023] EWCA Crim 1335 Case No: 202300991 B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT CHESTER HIS HONOUR JUDGE LEEMING T20217126 Royal Courts of Justice Strand, London, WC2A 2LL Date: 15 November 2023 Before: LORD JUSTICE STUART-SMITH MR JUSTICE HOLGATE and HIS HONOUR JUDGE MARKS KC The Common Serjeant of London - - - - - - - - - - - - - - - - - - - - - Between: REX Respondent - and – NATHAN SCHULTZ Appellant - - - - - - - - - - - - - -

Neutral Citation Number: [2023] EWCA Crim 1335 Case No: 202300991 B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT CHESTER HIS HONOUR JUDGE LEEMING T20217126 Royal Courts of Justice Strand, London, WC2A 2LL Date: 15 November 2023 Before: LORD JUSTICE STUART-SMITH MR JUSTICE HOLGATE and HIS HONOUR JUDGE MARKS KC The Common Serjeant of London - - - - - - - - - - - - - - - - - - - - - Between: REX Respondent - and – NATHAN SCHULTZ Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Adam Watkins (instructed by Turnocks Defence Solicitors ) for the Appellant Maria Masselis (instructed by CPS Appeals and Review Unit ) for the Respondent Hearing date: 7 November 2023 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely at 10.30am on 15 November 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. Lord Justice Stuart-Smith: Introduction 1. On 7 November 2023 the applicant renewed his application for leave to appeal against both his conviction of an offence of causing death by dangerous driving and the sentence of 10 years imprisonment imposed by the trial judge, HHJ Leeming. At the end of the hearing we ruled that the renewed application for leave to appeal against conviction was dismissed, for reasons we gave in an ex tempore judgment that do not need not be repeated here. At the same time we indicated that we would reserve our judgment on the renewed application for leave to appeal against sentence. We adjourned the hearing having asked Mr Watkins, who represents the applicant as he did in the court below, to assemble the evidence (including video evidence) that went to the question of the quality of the applicant’s driving before and at the time of the fatal accident. Mr Watkins kindly agreed to attempt to agree his assembly of evidence with the prosecution. 2. Since the hearing, our attention has been drawn to paragraph 10.2.7 of the Criminal Procedure Directions 2023 which directs the court to consider adjourning the hearing where, in a case involving a fatality, leave is granted to appeal against sentence. Consequently, this judgment deals solely with the question of permission to appeal and its immediate consequences. 3. We have concluded that permission should be given to appeal against sentence. In our judgment, the submissions that the applicant wishes to advance are reasonably arguable. Having decided that leave should be granted, we adjourn the hearing so that the CPS may instruct an advocate, and the victim’s family be given the opportunity to attend. The appeal is not reserved to this constitution of the Court or any particular members of it. 4. In the course of the hearing before us, a significant proportion of the argument focused on the question whether the judge was right in his sentencing remarks to refer to “a flagrant disregard for the rules of the road”, which at least in part he appears to have been based on factors extrinsic to the quality of the applicant’s driving at the time and which caused him to categorise the case as falling into Level 1. Our direction that the evidence relevant to the quality of the applicant’s driving should be assembled stands, so that the full court may have easy and comprehensive access to the evidence going to the quality of his driving before and at the time of the fatal accident. 5. It is appropriate that we should grant a representation order for junior counsel instructed on the appeal, and we do so. 6. Beyond what we have said above, we do not express any view on the merits or likely outcome of the appeal against sentence.

2023_11_15-5908.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1335/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1335

83cae96cae77cf4c4f4cfd33b0bbfc21169677dc8713fa54d40c12f4fc13f78c

[2008] EWCA Crim 1679

EWCA_Crim_1679

2008-07-14

crown_court

Neutral Citation Number: [2008] EWCA Crim 1679 No: 2008/2915/A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Monday, 14 July 2008 B e f o r e : THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION (Lord Justice Latham) MR JUSTICE GRIGSON MR JUSTICE MACDUFF - - - - - - - - - - - - - R E G I N A v ARAM RAHIM - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Compan

Neutral Citation Number: [2008] EWCA Crim 1679 No: 2008/2915/A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Monday, 14 July 2008 B e f o r e : THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION (Lord Justice Latham) MR JUSTICE GRIGSON MR JUSTICE MACDUFF - - - - - - - - - - - - - R E G I N A v ARAM RAHIM - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - Mr S Welford (Solicitor Advocate) appeared on behalf of the Appellant - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE GRIGSON: On 9th April 2008 in the Crown Court at Leeds this appellant pleaded guilty to one offence of possession of false identity documents with intent and another offence of obtaining a pecuniary advantage by deception. On 2nd May he was sentenced to 12 months' imprisonment on the first count and 15 months' imprisonment on the second, the sentences to be served concurrently. The 30 days he had spent in custody on remand were ordered to be taken into account. 2. The appellant is an Iraqi national. He entered the United Kingdom illegally in September 2003. He sought asylum but was refused. He was not deported as there was no safe means to do so. He declined to return to Iraq voluntarily. He received subsistence and accommodation from the National Asylum Support Service and was issued with an application for a regulation card by the Home Office. That card was stamped "employment prohibited". 3. Between November 2005 and August 2007 he obtained work as a warehouseman earning over £22,000. He left that employment after a visit to the warehouse by the Immigration Services. 4. On 7th September the appellant sought employment with an agency in Huddersfield and presented to them a forged United Kingdom residence permit in his own name, which stated that he had indefinite leave to remain. He was arrested in April 2008 and his home was searched. His residence card was found. It had been altered to read "employment permitted". 5. In interview he told the police that he had paid someone to obtain the forged documents. Some £7,410 had been obtained to which he was not entitled. He is 30 years old. He has one court appearance in which he admitted three offences of a different nature. 6. The grounds of appeal drafted by Mr Welford and supported by him in argument before the court today refer to the case of Mutede [2006] 2 Cr.App.R (S) 22. That case is not in fact a guideline case and neither, it should be stressed, is this. Had the forged documents in this case been a passport the sentence imposed would have been unimpeachable. However, we take the view that given the nature of the documents here a sentence as long as 15 months was manifestly excessive. The appropriate sentence was nine months. We quash the sentence of 15 months and impose a sentence of nine months on each count to be served concurrently. To that extent the appeal is allowed. The 30 days under section 240 will continue to count.

2008_07_14-1583.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1679/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1679

7dd8c696d8a1c5a9351b95ea8ad03b56880cf8019ed57dae053b8439d2ff63bf

[2018] EWCA Crim 2958

EWCA_Crim_2958

2018-11-22

crown_court

NCN: [2018] EWCA (Crim) 2958 No: 201804054/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 22 November 2018 B e f o r e : LORD JUSTICE SIMON MRS JUSTICE CARR DBE HIS HONOUR JUDGE PICTON (Sitting as a Judge of the CACD) REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A v AMADIO OSBORNE Mr T Cray appeared on behalf of the Attorney General Mr P Casey appeared on behalf of the Offender Computer Aided Transc

NCN: [2018] EWCA (Crim) 2958 No: 201804054/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 22 November 2018 B e f o r e : LORD JUSTICE SIMON MRS JUSTICE CARR DBE HIS HONOUR JUDGE PICTON (Sitting as a Judge of the CACD) REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A v AMADIO OSBORNE Mr T Cray appeared on behalf of the Attorney General Mr P Casey appeared on behalf of the Offender Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. J U D G M E N T LORD JUSTICE SIMON: THIS PAGE IS NOT INTENTIONALLY LEFT BLANK 1. The Solicitor General seeks leave to refer a sentence passed on the offender, Amadio Osborne, at Portsmouth Crown Court on 3 September 2018 under section 36 of the Criminal Justice Act 1988 as being unduly lenient. We grant leave. 2. On 10 July 2018, following a trial before His Honour Judge Melville QC and a jury, the offender, aged 32, was convicted of attempting to cause grievous bodily harm with intent. On 2 September he was sentenced to a term of 12 years' imprisonment. He is now aged 32, having been born in September 1986. 3. The offence took place in the early hours of 14 November 2017 at the offender's flat in Fareham, Hampshire. Prior to this, the offender had searched the internet and discovered details of EP who was the victim of the crime. EP was a sex worker from Romania, aged 24, who had been in the country for approximately six months. 4. The offender contacted EP by email and phone, and there were messages between them setting out details of the sexual acts that the offender wished her to perform and the price. They eventually agreed on unprotected vaginal sex for a price of £1,000. The offender did not have this money and the prosecution case was that this was a planned attack. 5. EP went to the offender's flat while her cousin waited outside. When inside the flat the offender said she should go into the bedroom where she would find the money. As she did so he struck her from behind with a claw hammer. She fell on the bed and the offender aimed several more hammer blows at her head. He also punched her and pulled her hair. EP fought back and managed to get to her phone and make a call to her cousin. She screamed down the phone that the offender was trying to kill her. This appeared to enrage him, and he managed to get her down on the bed where he put his hand over her mouth and tried to strangle her. At some stage he also tried to use a glass to strike her. She felt further blows to her body with the hammer. 6. She managed to defend herself by clinging onto the offender and biting his finger. She begged him to stop and said she had a young son. This appeared to change his mood. He said that he did not want to fight any more and that she could leave. She was in the flat for about six minutes, her entry and departure being recorded on CCTV images recorded on a camera outside the offender's flat. 7. When her cousin saw her outside she was bleeding from a head wound, scared and crying. Later that morning she went to hospital where the head wound was treated. Her victim impact statement said that the attack had led to problems with her vision and to continuing psychological difficulties. There were injuries to her hands, back and face, in addition to the laceration on her head. 8. At 1.32 am the offender called the police claiming that he had been attacked with a hammer by EP. He said he had arranged to meet her and pay for sex. When officers attended at the flat they noted that he had only a superficial wound to the back of his head. Additionally, there were signs of more extensive blood staining and significant disturbance, which were inconsistent with his complaint. As a result, he was arrested. 9. In a prepared statement he said that there had been an argument over payment with EP, that she had attacked him with a hammer and that he had been defending himself. EP gave evidence at the trial; the offender did not. 10. In November 2005 he had been tried for murder and convicted of manslaughter on the grounds of diminished responsibility. He was sentenced to custody for life with a minimum term of 30 months. The facts of that previous conviction were that overnight on 21/22 May 2004 he stayed at home with a good friend, Ben Williams. They were both 17 at the time. They spent the evening drinking. The next day the offender did not go to work. He was in communication with a number of other friends who thought he sounded increasingly abnormal and indeed suicidal. When his mother got home from work she found him unconscious, apparently through drink and drugs. The body of Ben Williams lay in a corner of his bedroom. Ben Williams had been bludgeoned to death using a pool cue wielded with high velocity. Initial observations indicated that the attack was a surprise attack; and there was no evidence that the victim had protected or defended himself. The forensic examination indicated two sites of assault, very close to each other, at which the victim's head was smashed into a cupboard door and a bedroom door whilst he was in a kneeling or lying position. The victim had died of multiple blunt force impacts to his head and face causing fractures and haemorrhage. The many impacts may have been from kicks and punches as well as the pool cue. The offender admitted the killing and offered a plea to manslaughter on the grounds of diminished responsibility which was not accepted. 11. The defence at trial also accepted that the offender had been involved in a previous violent incident which involved the use of a weapon. This had not led to a conviction as it was not reported to the police before his arrest for murder in May 2004. The victim of this earlier incident was SK who was a niece of the offender. At the relevant time, Christmas 2002, the offender was 16 and she was 14. In the early hours of Christmas Day, whilst asleep in his house, SK woke to find the offender attacking her, first with his hands around her throat, by punching her to the head, by striking her with a lamp stand and then punching her again. The assault was interrupted by her grandmother who arrived on the scene. SK suffered bruises and cuts but did not go to the police since the offender was a member of her family. 12. There was a pre-sentence report dated 28 August 2018. The author concluded that the offender posed a high risk of serious harm to the public. The nature of the risk was excessive physical violence through the use of weapons. This also extended to violent offending in the light of the offender's expressed sexual interest in BDSM (bondage, domination, submission and masochism), and the degree of violence used on the victim. 13. A psychological report on the offender had been prepared by a consultant clinical psychologist Dr Arthur Anderson on 3 June 2018 in advance of the trial. It set out the relevant medical history and progress in custody. That assessment as to risk and progress plainly has to be seen in the light of the subsequent conviction of the offender at trial. There was also a victim impact statement from EP before the sentencing judge dated 12 January 2018, which this court has seen. 14. Mr Cray invited attention to the following aggravating factors. First, the use of a hammer as a weapon. Second, an intention to cause greater harm than was actually caused. Third, deliberate targeting of a victim who was vulnerable by reason of her occupation. Fourth, the offence committed when the offender had been released on licence from a life sentence only six months before. 15. The judge found that the offending, albeit an attempt, fell within Category 1 of the Sentencing Council Definitive Guideline for an offence of causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1864. It was an offence of greater harm because the victim was a sex worker summoned to the offender's home and therefore vulnerable due to personal circumstances. It was an offence of higher culpability due to the use of a weapon (a hammer) with which the offender had armed himself in advance. In addition, he was on licence at the time. A Category 1 offence has a starting point of 12 years which was the sentence imposed. 16. The judge identified that the offence of which he had been convicted was a specified offence and he therefore had to consider whether he was a dangerous offender and whether in such circumstances he should receive a life sentence or an extended sentence of imprisonment. He noted the conviction for manslaughter committed in May 2004, the attack on his niece in December 2002 and that the unprovoked and unexplained attack on EP had been committed only six months after his release from prison, after serving the life sentence for manslaughter. The judge made clear that in his view the offender was dangerous. He considered whether in the circumstances the offence merited a life sentence and concluded that it did not. 17. He then indicated that he had been minded to impose an extended sentence of imprisonment but had been persuaded by Mr Casey, that since the offender was already subject to a life sentence, any sentence imposed would have to be considered very carefully by the Parole Board before considering him for release. 18. Mr Cray for the Solicitor General submitted first that the decision to impose a lesser sentence for the offence because his release from the life sentence would in any event be determined by the Parole Board was contrary to principle. Second, in consequence, the determinate sentence of 12 years was an unduly lenient sentence. The appropriate sentence was either a term of life imprisonment or an extended sentence. He drew our attention to three aspects of the decision in Attorney General's Reference No 27 of 2013 (Burinskas and others) [2014] 1 WLR 4209 . First, at paragraphs 38 and 39 the importance of the observation of Hughes LJ (as he then was) in R v Round [2009] 2 Cr.App.R (S) 292, at paragraph 44: "... the general principle that early release, licence and their various ramifications should be left out of account upon sentencing is ... a matter of principle of some importance." 19. Second, at paragraphs 42 and 43, the court's reference to the staged approach to sentencing dangerous offenders, the primary focus being on dangerousness and the protection of the public from offenders who are found to be dangerous. 20. Third, at paragraph 22, there is the court's finding that when considering section 225(2)(b) of the Criminal Justice Act 2003, whether the seriousness of the offence or an offence and one or more offences associated with it was such as to justify the imposition of a life sentence, the sentencing judge was not limited to a narrow consideration of the seriousness of the offence and any associated offences in deciding whether the threshold had been reached. The sentencing judge must also consider the offender's previous convictions in accordance with section 143(2) of the Criminal Justice Act, the level of danger to the public posed by the offender and whether there is a reliable estimate of the length of time he will remain a danger, as well as the availability of alternative sentences. 21. Mr Cray submitted that these three aspects of the decision in Burinskas illustrated the extent of the error that the sentencing judge made in imposing a determinate sentence in this case. First, the sentencing judge's decision not to sentence this offender as a dangerous offender under either section 225 (to a life sentence) or section 226A (to an extended sentence) was based on the false premise that it was legitimate to take into account the ability of the Parole Board to determine his release from the existing life sentence. It was clear from section 225 of the Criminal Justice Act that if a court finds that an offender is a dangerous offender, it must consider whether the seriousness of the offence is such as to justify the imposition of a life sentence. If the court so finds, it must impose a life sentence - see section 225(2). If the court concludes that a life sentence is not justified, the court must consider the issues that arise under section 226A in relation to an extended sentence. This involves considering whether either condition A or condition B applied. In the present case both conditions applied. Condition A because he had previously been convicted of manslaughter, which is an offence listed in schedule 15B, and condition B because the specified custodial term would be more than four years. 22. Secondly, Mr Cray submitted that the true seriousness of the index offence was not reflected in the sentence. Making a favourable adjustment in favour of someone whom the judge decided was a dangerous offender by imposing a lesser sentence than the seriousness of the offence merited on the basis that he was already subject to a life sentence was antithetical to section 143(2) which provides, subject to qualifications which do not apply here, that previous convictions must be treated as an aggravating factor. The offender's previous conviction for manslaughter should have aggravated the seriousness of this offence and not diminished it. 23. Given that this offence was committed only six months after the offender's release on licence, and given the conclusion in the pre-sentence report as to his dangerousness, Mr Cray submitted that the risk posed by this offender to the public was extremely high and would remain so for an indefinite period. There were therefore grounds to suggest that a life sentence should have been imposed, notwithstanding that the imposition of a life sentence is an exceptional course. 24. Mr Cray submitted that this argument derived further support from the decision of the Supreme Court in R v Smith (Nicholas) [2011] 1 WLR 1795 at paragraphs 18 and 19. The general issue in that case was whether an indeterminate sentence under Chapter 5 of the Criminal Justice Act 2003 could or should have been imposed on a defendant who was already serving a sentence of life imprisonment or whether a determinate sentence should have been imposed. 25. At paragraph 18, Lord Phillips of Worth Matravers giving the judgment of the court set out one of the arguments raised by the appellant: that an indeterminate sentence for public protection with a minimum term of six years served no purpose since the procedural position would be exactly the same as if the defendant had been given a determinate sentence of 12 years' imprisonment, he would have to serve a minimum of six years and therefore would have to satisfy the Parole Board that he did not pose a risk to the public before he was released. The court expressed some sympathy for that submission but rejected it because a determinate sentence "would not contain within its terms the finding that the defendant does in fact satisfy the dangerousness provisions" at the time of the more recent events. Given therefore that the Parole Board had released the appellant on licence, having been persuaded that he did not pose a risk of serious harm to the public at the point of release, the sentencing judge could not be criticised for imposing a sentence that demonstrated that the contrary was the case. 26. Finally, Mr Cray submitted that, even if the court were to find that the threshold for a life sentence under section 225 had not been reached, there was no justification for passing a determinate sentence rather than the extended sentence that the sentencing judge had initially in mind. 27. Mr Casey for the offender accepted that this was an offence of high culpability, but submitted that "on its own terms the offence did not necessarily satisfy the test of greater harm." It was not a sustained attack and the injuries were relatively minor. If that were right it was a Category 2 case within the Guidelines, with a starting point of six years' custody and a range of five to nine years and not a Category 1 case with a starting point of 12 years. Nevertheless, and realistically, he accepted that in view of the forensic history the sentence of 12 years was not manifestly excessive. 28. He drew the court's attention to the fact that the offender had spent most of his adult life in custody, for 12 years between May 2005 and May 2017 and since November 2017. He informed the court that on his release from the life sentence in May 2017 he was regarded as something of a model prisoner, and someone who was unlikely to pose any future risk to the public that could not be managed under licence condition. That assessment, Mr Casey acknowledged, was plainly wrong. He did not argue that the judge was not entitled to find that the offender was dangerous. However he submitted that a 12 year determinate sentence was both appropriate punishment for the offence and provided for the future protection of the public. It provided future protection because he was already subject to a life sentence and had been recalled to prison after his arrest for the present offence in November 2017. He submitted that the judge was entitled to the view that a life sentence was not appropriate and that an extended sentence where the licence extension period was limited by section 226A(8)(a) to five years would be redundant. This court's powers, he argued, under section 36 of the Criminal Justice Act 1988 were confined to cases of gross error and was not such as to be exercised so as to provide the prosecution with a general right of appeal against sentence. 29. Mr Casey's essential point was that the public were no more at risk by the passing of a determinate sentence of 12 years than they would be by an extended sentence. Whatever sentence was passed it is difficult to imagine that the Parole Board would not appreciate the gravity of the offence if they were to read the judge's sentencing remarks, as they would. He submitted that the passage in the judgment in Smith (Nicholas) relied on by Mr Cray did not ultimately assist since its effect was that the decision on whether or not to impose an IPP sentence was a matter for the discretion of the judge. The argument here was whether a life sentence or an extended sentence would achieve any practical benefit. He submitted that they would not. In any event this court should give weight to the judge's decision not to pass an extended sentence. In summary he submitted it was a lawful disposition and that it was not lenient, let alone unduly lenient. 30. We would start by observing that, albeit the offence constituted an attempt, this was an offence whose seriousness was to be measured by Category 1 of the sentencing guidelines. The premeditated use of a hammer with an intent to cause more serious harm than the harm than was in fact inflicted made it an offence of high culpability. It was an offence of greater harm because the victim, a young woman summoned after midnight to the offender's home, was particularly vulnerable, albeit she was able to some extent to defend herself from the unprovoked hammer attack. It is also plain that the judge was entitled to find that the offender was dangerous within the meaning of Part 12 Chapter 5 of the Criminal Justice Act. He had committed an offence of violence both in effect and intent six months after his release from prison on licence from a life sentence for manslaughter, having served a term of 12 years. The manslaughter had itself been preceded by another violent crime, committed again with a weapon, against his niece. The pre-sentence report concluded he was dangerous, as had the judge who had heard the trial. The risk he posed at the date of sentence was high and would remain so for the foreseeable future. There was a plain and serious risk that he would commit further specified offences and a significant risk that he would cause serious harm thereby. 31. The life sentence passed in 2005 would have been directly relevant if section 224A applied whether or not there had been a finding of dangerousness - see Burinskas at paragraph 8. Under section 224A where a specified offence is committed during the currency of a life sentence then, subject to the provisions of section 224A(2), a life sentence must be imposed if the offender were not eligible for release during the first five years of the life sentence. In the present case the life sentence had a minimum term of 30 months and the offender was therefore eligible for release during the first five years. 32. There had nevertheless been a finding of dangerousness which necessarily informed the sentencing exercise. Having reached a conclusion that an offender is dangerous the court is required to go through the stage process described in Burinskas at paragraph 43. So far as relevant here, this included considering whether a life sentence was justified under section 225 and, if so, a life sentence should be passed. If a life sentence is not justified the court should consider an extended sentence under section 226A. Such a sentence will usually but not always be appropriate. Since the extended sentence is discretionary, in the words of the Lord Chief Justice in Burinskas at paragraph 25 "The option of a determinate sentence should not be forgotten". 33. In our view, serious as this offence was, it was not such as to justify a sentence of life imprisonment. Although he intended, he did not in fact cause really serious harm and he desisted when the victim fought back. However, it fully justified an extended sentence and this is the sentence that should have been imposed. The judge seems to have been beguiled into an analysis of how the Parole Board would approach the offender's release. That was bound to be uncertain even if there were good reasons to suppose it would be marked by extreme caution in the circumstances. Furthermore, it was contrary to the principle that potential release dates should be left out of account in sentencing. It also resulted in a sentence which would appear to be the same as if he had not been found to be dangerous without any real justification. He was not, for example, a young man for whom a lengthy determinate sentence would provide sufficient protection for the public. The determinate term of 12 years did not provide sufficient protection for the public from this offender. 34. We would add that the relevant test for this court is not whether the sentence resulted from gross error but whether it was an unduly lenient sentence. In our view the sentence was unduly lenient. 35. Accordingly, we quash the sentence of 12 years' imprisonment and substitute an extended sentence of 17 years: a custodial term of 12 years and an extension period of five years’ licence.

2018_11_22-4452.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/2958/data.xml

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f84873f9aaa71eabe0f3768a23640fec2499873fce52763b8275e7c1e4cba0d9

[2017] EWCA Crim 2458

EWCA_Crim_2458

2017-10-31

crown_court

No: 201704489 A4 Neutral Citation Number: [2017] EWCA Crim 2458 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 31 October 2017 B e f o r e : LORD JUSTICE SIMON MR JUSTICE LEWIS and THE RECORDER OF PRESTON - HIS HONOUR JUDGE BROWN (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A v JM - - - - - - - - - - - - - Mr P Jarvis appeared on behalf of the A

No: 201704489 A4 Neutral Citation Number: [2017] EWCA Crim 2458 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 31 October 2017 B e f o r e : LORD JUSTICE SIMON MR JUSTICE LEWIS and THE RECORDER OF PRESTON - HIS HONOUR JUDGE BROWN (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A v JM - - - - - - - - - - - - - Mr P Jarvis appeared on behalf of the Attorney General Mr N Walker appeared on behalf of the Offender Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Fleet Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - J U D G M E N T This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person. LORD JUSTICE SIMON: 1. The Attorney General seeks leave to refer a sentence passed on JM in the Crown Court at Liverpool on 15 September 2017 under section 36 of the Criminal Justice Act 1988 as being unduly lenient. 2. We grant leave. 3. The offender pleaded guilty at a Plea and Trial Preparation Hearing on 17 August to count 1 on the indictment. This was an offence of indecent assault on a male contrary to the provisions of section 15(1) of the Sexual Offences Act 1956 ("the 1956 Act"). 4. The particulars charged that between 22 March 1981 and 21 March 1983, the offender indecently assaulted L, a boy aged between 2 and 3, by inserting his penis into the victim's mouth. 5. The sentence passed on 15 September was a community order with a 3 year supervision requirement. 6. In summary, when the offender was 14 he was asked to babysit his nephew, who was only two and a half years old at the time. While he was in charge of the victim, the offender led him to an alcove in his home, and once there lowered his trousers and inserted his penis into the child's mouth. The victim was shocked and confused but he did not saying anything to anyone at the time. Neither the victim nor the offender forgot about this incident. Over the years they both spoke about it to others. The offender even told the victim's mother about the abuse some years later. It was not until 2015 that the victim made a complaint to the police, as a result of which the offender was eventually charged. 7. Mr Jarvis for the Attorney General submits that the decisions of this court in R v Forbes (Stephen John) [2016] EWCA Crim 1388 and R v L [2017] EWCA Crim 43 read with Annex B to the Sentencing Council definitive guideline for sexual offences sets out the proper approach to sentencing, an approach that was not adopted in the present case. 8. First, the sentencing court should seek to identify the modern equivalent offence or offences for the conduct of which the offender is convicted. In this case there was no doubt that the modern equivalent was an offence contrary to section 5 of the Sexual Offences Act 2003 ("the 2003 Act"): the rape of a child under 13. 9. Secondly, the sentencing court should seek to have measured reference to the sentencing guideline for that modern equivalent offence. Here, the sentencing court had to recognise that the maximum sentence for the section 5 offence was life imprisonment whereas the maximum sentence for an offence under the 1956 Act was only 10 years' imprisonment. That meant the starting points and category ranges had to be adjusted in a measured way to reflect the lower maximum sentence for the index offence. 10. Thirdly, the sentencing court had to identify the appropriate starting point for the offending. Mr Jarvis submits that this was a category 2 case of harm because the victim was particularly vulnerable due to his extreme youth. He also submits that it was culpability A because there was a breach of trust. The offender was babysitting at the time he abused the victim and so this was equivalent to the sort of ad hoc situation considered in Forbes at [18]. The offender was charged by the victim's parents with the responsibility of looking after their son and he abused their trust. If this categorisation is correct then the starting point after a trial for an adult convicted of the section 5 offence would be 13 years' imprisonment with a range of 11 to 17 years. Having measured reference to the guideline for an adult convicted of the index section 15(1) offence would therefore lead to a significant starting point possibly towards the maximum sentence for that offence. 11. Fourthly, the sentencing court should consider the existence of aggravating features. Here, the offence was committed in the victim's home and the impact of the offence on him has been significant and longstanding. 12. Fifthly, the sentencing court should consider matters of mitigation. In the present case the offender's lack of previous conviction and his remorse. Of considerable importance in the sentencing exercise was his youth at the time he committed the offence. That, the Attorney General recognises, has an obvious bearing on his culpability for his actions. 13. However, the sentencing court is not required to pass a sentence that respects the maximum term that could have been imposed on the offender at the time he committed the offence. The fact that he could only have received a term of detention of 3 months in 1981 has no bearing on the final form of the sentence to be passed in 2017. Provided he was liable to receive some form of custodial sentence at the time he committed the offence, that is the extent of the inquiry the sentencing court is required to undertake, as the Court of Appeal made plain in R v L at [15]. 14. The sentencing court was required to inquire into the offender's maturity at the time of the offence to determine the extent to which that affected his culpability for his actions. In the absence of reliable evidence as to his maturity, the maturity should be assessed by reference to the maturity of a youth of the offender's age at the material time: a 14 year old (see Forbes at [21]). 15. In assessing the offender's culpability the sentencing court is entitled to take into account what is now the definitive guideline for sentencing children and young people effective 1 June 2017. Paragraphs 1.5 and 4.5 of that guideline emphasise that a child's lack of maturity can "impact on their decision making and risk taking behaviour" and so it was important for the court to consider whether the offender acted impulsively and whether he was aware of what the consequences of his actions could be. 16. In this case there was no evidence that the offender was an immature 14 year old or that he was suffering from learning difficulties or a mental health problem that could have reduced his culpability. The sentencing court may well have concluded that his actions were impulsive but at the same time the offender knew that what he was doing was wrong, and was not just the sort of sexual experimentation he described in his interview with the author of the pre-sentence report. By his own account he felt guilt for what he had done. 17. Sixthly, the sentencing court has to consider what credit is due for a plea of guilty. The offender did not plead guilty at the earliest opportunity in the Magistrates' Court but he indicated his intention to plead guilty in advance at the PTPH and entered his guilty plea at that hearing, so credit at or a little above 25 per cent was due to him (see the Sentencing Council Guilty Plea Guideline effective 1 June 2017 at page 5). 18. Seventhly, depending on where this exercise led the sentencing court, it may be necessary to consider the Sentencing Council's Definitive Guidelines on the Imposition of Community and Custodial sentences effective 1 February 2017 because even if the custody threshold is crossed it does not follow that a custodial sentence is inevitable. The flowchart at page 10 sets out the correct approach to take when deciding whether to impose a custodial sentence in preference to a community-based penalty. 19. In this case, Mr Jarvis submits that the judge made a significant error when he sentenced by reference to the supposed maximum sentence of 3 months' imprisonment. In fact, he was only constrained by the maximum sentence available for the offence, which was 10 years' imprisonment. 20. He submits that this was a very serious offence. The offender had indecently assaulted a child of two and a half in a manner that would now be described and prosecuted as an offence of rape of a child under 13 with a maximum sentence of life imprisonment. The offence was committed in breach of the trust reposed in the offender to look after the victim; and the impact of the offence on the victim was still being felt by him to this day. 21. The offender was young himself when the offence occurred and his actions appear to have been impulsive rather than preplanned. To that extent his culpability was reduced but he was still aware that what he was doing was wrong. The seriousness of the offence was also mitigated by the offender's lack of convictions and his remorse. Significant credit was also due to him for his plea of guilty. 22. In the light of these factors it is submitted on the Attorney General's behalf, that a community order was unduly lenient. Given the seriousness of the offence, not even the mitigation and credit available to the offender was such as to drive the inevitable term of imprisonment down to a level where a community order could have been considered as a suitable alternative disposal. A significant custodial sentence was called for in this case. In all likelihood, such an outcome was only avoided because the judge was led to believe that his sentencing powers were limited to 3 months' imprisonment when that was not the case. 23. For the offender, Mr Walker submits, first, that this was an isolated offence committed by a man now aged 51 when he was 14. 24. Secondly, the proper categorisation of the offending in the guidelines for the rape of a child was category 2B and that even for such offences the guidelines indicated that this type of offence may result in a lengthy community sentence with appropriate programmes (see page 28 of the Guidelines). 25. Thirdly, there was exceptional mitigation available to him: his clear remorse and confessions and issues relating to his medical condition. The fact that it was a one-off offence and he is not assessed as a risk to children nor ever has been. 26. Fourthly, he points to the absence of some of the aggravating features one may see in this type of offence: the absence of exploitation, targeting or grooming. 27. Fifthly, he draws attention to the Sentencing Council Guidelines on Sentencing Children and Young Persons, which indicate a significant discount available to youth offenders to reflect reduced culpability. 28. Sixthly, there was the fact of his guilty plea, which he says the judge indicated entitled him to full credit, although he acknowledges this is not clear from the sentencing remarks. 29. Finally, he prays in aid the concept of common law fairness referred to in Forbes . 30. We should add that we have seen a supplementary report prepared for this hearing dated 20 October. This shows that the offender has complied with his supervision requirement by attending appointments. 31. We have considered these submissions. We accept that the sentencing judge was led into error when he assumed that the maximum sentence which he could impose was a term of 3 months' imprisonment and that this resulted in an unlawful and unduly lenient sentence. He plainly should have adopted the staged process described in the cases of Forbes and L , to which we have referred. 32. Adopting this staged approach, and looking at stage 1, the modern equivalent offence for this indecent assault was an offence of rape of a child under 13, contrary to section 5 of the Sexual Offences Act 2003. 33. However, stage 2, the measured reference to the modern equivalent requires the sentencing court to recognise that the maximum for the section 5 offence is life imprisonment whereas the maximum sentence for the section 15(1) offence was 10 years. 34. Stage 3, in our view the appropriate sentencing category was category 2 harm because the victim was a particularly vulnerable child, and category B culpability. We do not accept that this was an abuse of trust case in the sense used in the guideline and in the sense described in Forbes . It was a 14 year old looking after a young relative. 35. On this basis, the starting point was 10 years with a range of 8 to 13 years. However, this must be adjusted as required at stage 2. In our view, this adjustment leads to a sentence of 6 years. 36. We turn then to the circumstances in which the offence arose. The offence was committed against a two and a half year old child in the child's home where he should have felt secure, and the impact on the victim, as is clear from his statement, has been significant and longstanding. There is nothing to contradict the offender's account contained in the pre-sentence report, however, that having been sexually aroused by a television programme he put his penis into the victim's mouth to feel a different sensation. He described it as a form of sexual experimentation and immediately realised it was wrong and so stopped. It was a short and impulsive criminal act. 37. His level of maturity at the time cannot now be determined but it is clear from his account as described in the pre-sentence report that he had a troubled and isolated upbringing with few friends. He was one of nine children and was the particular focus of his father's violence. His mother, who drank to excess, had a mental breakdown and he regarded staying at his sister's home, where the offence was committed, as "respite". 38. The offender also said he had been haunted by the memory of his actions towards the victim ever since. This was a relevant mitigating factor, although it should not be allowed to overshadow the very much more serious impact of the offence on the victim, which was also long-lasting. 39. It appears to be common ground that he told his sister what had happened in 1995, although it was not until 2010 that she reported the matter to the police. In 2011, he admitted the abuse to his daughter. In April 2015, a complaint was made to the police. For reasons which are unexplained, it seems to have taken over 2 years to then bring the case to court. 40. The defendant is now 51 years old. He is effectively of good character and not in the best of health, with both physical and medical issues. He pleaded guilty at the first hearing in the Crown Court and there was never any question of the victim having to give evidence. 41. Although the offender is being sentenced as an adult, the court necessarily has to reflect that this offence was committed by him at the age of 14. This affects his culpability and, in our view, calls for a significant further reduction from 6 to 3 years. With what we accept should have been full credit for his plea, it follows that the sentence should have been a term of 2 years. 42. The question then is whether that sentence can and should be suspended. The relevant sentencing provisions are set out in section 118 of the Powers of Criminal Courts (Sentencing) Act 2000. That provision provided that the court can suspend a sentence if exceptional circumstances are shown. Exceptional circumstances are those so out of the ordinary as to be exceptional. 43. In the present case, we are satisfied that there were exceptional circumstances. It was, as we have noted, a single impulsive offence committed by the offender when he was 14. He is now 51 and has not offended since. It was an act which he immediately regretted and stopped. He has been affected by what he did ever since then, confessing his crime to many people over many years. It has affected his personal health. 44. In these circumstances, we will quash the sentence imposed in the Crown Court and substitute a sentence of 24 months' imprisonment suspended for 12 months with a 12 month supervision order.

2017_10_31-4087.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/2458/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/2458

1c57e46eef3709cbbc36d5b2f35ecef5cc1ce63d396df6557f5c29173a61d217

[2005] EWCA Crim 2697

EWCA_Crim_2697

2005-11-03

supreme_court

Neutral Citation Number: [2005] EWCA Crim 2697 Case No: CAO/2004/7266/D1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LEWIS CROWN COURT HHJ HAYWARD T20040060 Royal Courts of Justice Strand, London, WC2A 2LL Date: 3 November 2005 Before : RT HON LORD JUSTICE SCOTT BAKER HON. MR. JUSTICE JACK and HON. MR. JUSTICE DAVID CLARKE - - - - - - - - - - - - - - - - - - - - - Between : Imad Al-Khawaja Appellant - and - Regina Respondent - - - - - - - - - - - - - - -

Neutral Citation Number: [2005] EWCA Crim 2697 Case No: CAO/2004/7266/D1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LEWIS CROWN COURT HHJ HAYWARD T20040060 Royal Courts of Justice Strand, London, WC2A 2LL Date: 3 November 2005 Before : RT HON LORD JUSTICE SCOTT BAKER HON. MR. JUSTICE JACK and HON. MR. JUSTICE DAVID CLARKE - - - - - - - - - - - - - - - - - - - - - Between : Imad Al-Khawaja Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Joel Bennathan for the Appellant Miss Sonia Woodley QC for the Respondent Hearing date : 6 September 2005 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Jack : Introduction 1. The primary point on this appeal was whether the admission of a written statement made by the complainant in a charge of indecent assault, who had since died, was a breach of the defendant’s human rights under Article 6 of the European Convention. We dismissed the appeal, reserving our reasons which we now give. 2. On 30 November 2004 at the conclusion of his trial at the Crown Court in Lewes before his Honour Judge Hayward the appellant, Imad Al-Khawaja, was convicted of two counts of indecent assault on a female contrary to section 14(1) of the Sexual Offences Act 1956 . He was later sentenced to 15 months imprisonment on the first count and to 12 months on the second count to be served consecutively. He appealed against his convictions by leave of the single judge. 3. The appellant was a consultant physician in rehabilitative medicine and practised at the Sussex Rehabilitation Centre at Brighton Hospital. His treatments included hypnotherapy. He was alleged to have assaulted two female patients who had been referred to him for treatment. The first, Susan Tampsett, had been referred to him by her general practitioner in October 2002. She suffered from multiple sclerosis and was wheelchair bound. It was alleged that the appellant assaulted her on her second visit to him on 3 June 2003. Most sadly, she committed suicide prior to the trial. There was no suggestion that this was a consequence of the alleged assault. In a pre-trial ruling given on 22 March 2004 His Honour Judge Rennie directed that her witness statement could be read in evidence at the trial pursuant to sections 23 , 25 and 26 of the Criminal Justice Act 1988 . This ruling lay at the heart of the appeal. 4. The submission was that the judge was wrong to have allowed the statement to be read. It was also submitted that in his summing up the trial judge did not give an adequate direction to the jury as to the consequential disadvantage to the appellant. It was said that this made the conviction on the first count unsafe, and also tainted the conviction on the second count. 5. The second count concerned a different patient, Vivienne Upton, who suffered from dystonia, an involuntary movement, in her neck. She was referred to the appellant by her consultant neurologist in October 2002. The indecent assault on her was said to have occurred on her third visit to the appellant on 12 June 2003. That was 9 days after the assault on Miss Tampsett. 6. On 9 July 2003 the appellant was arrested as a result of a complaint by Miss Upton. He declined to answer questions when interviewed by the police, saying, that, before he could answer he needed to access to medical records and to enquire as to patient confidentiality. He was given police bail until 11 September, and he then produced a written statement in answer to Miss Upton’s allegations. He was then, on the same day, arrested in connection with a complaint made by Miss Tampsett. The same course followed, and on 21 November he produced a written statement in answer to her allegations. Each statement contained a complete denial. 7. The prosecution case was that the allegations of the two complainants were mutually supportive. The prosecution also relied on the strikingly similar evidence from two other women, Kirsty Koster who was a physiotherapist at Eastbourne General Hospital, and Debra Dudeney who was an unofficial patient of the appellant, in each case relating to what the appellant had allegedly done to them. Those incidents were not charged on the indictment. Miss Koster and Miss Dudeney both said in evidence that they had known that allegations had been made against the appellant before they made their statements to the police. However there was nothing to suggest that the four women knew each other or were aware of the details of the others’ allegations. 8. The prosecution also called evidence of ‘recent complaint’ by Miss Tampsett. Basil Fish provided help around the house and garden for Miss Tampsett and her sister – who also suffered from multiple sclerosis. He had visited them on 3 June 2003, the day of the alleged assault. He knew that Miss Tampsett had been to see a doctor that day. When they were alone, she told him that she had been sexually abused. She said that the appellant had said she was a beautiful woman and that he could give her a climax. She did not refer to hypnosis. She was calm, but appeared angry. 9. Sandra Hewlett was a neighbour who did chores and shopping for Miss Tampsett. She let herself into the house at about 7 p.m. on 5 June. Miss Tampsett was on the telephone. After the call she looked upset, ashen and anxious. She said that she had been to see a hypnotist who had just been on the telephone and had suggested that he should visit her at home. She became upset and told Mrs Hewlett that the appellant had made her do things to herself, which she described. 10. We need not refer in any detail to the evidence by way of Miss Tampsett’s statement or to the oral evidence of Miss Upton, Miss Koster and Miss Dubeney. It is enough to say that in each case, if their evidence was truthful, the appellant had behaved improperly while they were aware of what was happening to them but under hypnosis. On that basis, he committed serious indecent assaults on Miss Tampsett. He committed a lesser indecent assault on Miss Upton. He made improper suggestions to Miss Koster and to Miss Dubeney. We should mention that Miss Tampsett did not make her statement until 20 September 2003. The admission of the statement. 11. At the preliminary hearing Judge Rennie approached the question whether Miss Tampsett’s statement should be admitted in evidence on what we would describe as classic English domestic law lines. He was not referred to Article 6 of the European Convention, or to any of the case law concerning the Article and the admission of evidence from a person who could not be questioned on behalf of a defendant. He did not avert to it himself. The argument which we have to consider was raised for the first time in this court by Mr Joel Bennathan, who did not represent the appellant in the Crown Court. 12. At the time of Judge Rennie’s ruling and the trial, the relevant statutory provisions were to be found in sections 23 to 28 of the Criminal Justice Act 1988 . They have now been replaced by the hearsay provisions contained in Chapter 2 of Part 11 of the Criminal Justice Act 2003 . Those apply to all trials held on or after 4 April 2005. Section 116 of that Act applies where, among other situations, a witness in unavailable because he is dead. Subsection (4) is broadly similar to section 26 of the 1988 Act . 13. Section 23 of the 1988 Act provided for the admission of first hand documentary hearsay. So far as relevant here, it read: “…… a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if- (i) the requirements of one of the paragraphs of subsection (2) below are satisfied; or (ii) the requirements of subsection (3) below are satisfied. (2) The requirements mentioned in subsection (1)(i) above are- (a) that the person who made the statement is dead or by reason of his bodily or mental condition unfit to attend as a witness; (b) that- (i) the person who made the statement is outside the United Kingdom; and (ii) it is not reasonably practicable to secure his attendance; or (c) that all reasonable steps have been taken to find the person who made the statement, but that he cannot be found (3) to (5) …….” Subsection (3) related to persons not giving evidence through fear. 14. Section 25 provided the general principles to be followed. It stated: “25(1) If, having regard to all the circumstances- (a) the Crown Court (i) on a trial on indictment; (ii) to (iv) ……. (b) ……. (c) ……. is of the opinion that in the interests of justice a statement which is admissible by virtue of section 23 or 24 above nevertheless ought not to be admitted, it may direct that the statement shall not be admitted. (2) Without prejudice to the generality of subsection (1) above, it shall be the duty of the court to have regard- (a) to the nature and source of the document containing the statement and to whether or not, having regard to its nature and source and to any other circumstances that appear to the court to be relevant, it is likely that the document is authentic; (b) to the extent to which the statement appears to supply evidence which would otherwise not be available; (c) to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings; and (d) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them.” However, where section 26 applied, section 25 would largely be superceded in practical effect by the provisions of section 26 . 15. Section 26 related to documents prepared for criminal proceedings. It provided: “26. Where a statement which is admissible in criminal proceedings by virtue of section 23 or 24 above appears to the court to have been prepared, ……., for the purposes- (a) of pending or contemplated criminal proceedings; or (b) of a criminal investigation, the statement shall not be given in evidence in any criminal proceedings without the leave of the court, and the court shall not give leave unless it is of the opinion that the statement ought to be admitted in the interests of justice; and in considering whether its admission would be in the interests of justice, it shall be the duty of the court to have regard- (i) to the contents of the statement; (ii) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness in the accused or, if there is more that one, to any of them; and (iii) to any other circumstances that appear to the court to be relevant. …….” Schedule 2 to the Act is given effect to by section 28(2) to supplement the foregoing provisions. It provides in particular for the credibility of the maker of a statement to be challenged. 16. Judge Rennie ruled on the statement of Miss Tampsett in the following way. First, he recorded that it was agreed that by reason of her death the statement was eligible to be admitted in evidence under section 23 . Next, he noted that the defence to each allegation was that it was untrue both as to the alleged indecent touchings and as to the indecent comments which it was alleged were also made. He observed that the appellant was very likely to feel that he had no realistic alternative to give evidence in order to defend himself on the second count relating to Miss Upton, and so the reading of the statement would not have the effect of making it very difficult for him not to give evidence, for that was already so. He also noted that collusion between the two complainants was not alleged, and so that need not be investigated by cross-examination. He referred to section 25 and its provision that he should not admit the statement if it was not in the interests of justice to do so. He then went on to section 26 , reminding himself that it required him, when considering the interests of justice, to have regard to the contents of the statement; and, in summary, whether it would be possible to controvert the statement, and whether its admission would result in unfairness to the defendant, and other relevant circumstances. He observed that the statement was crucial to the prosecution’s case on count 1, because without it there was no evidence of an assault. He concluded that inconsistencies which existed between Miss Tampsett’s statement and what Mr Fish and Mrs Hewlitt said could be explored with Mr Fish and Mrs Hewlitt. He also referred, in the context of inconsistencies, to the evidence of a third witness, whom he identified as Pauline. Miss Tampsett’s credibility could be tested by that means. He also mentioned expert evidence to be called on behalf of the Crown and on behalf of the appellant about the altered perception that can occur under hypnosis, saying that it was to the appellant’s benefit that any such evidence favourable to the appellant could not be contradicted by Miss Tampsett. He found the gravity of the allegation to be a neutral circumstance. He concluded that he was satisfied and sure that, having in mind the statutory tests, it was in the interests of justice for Miss Tampsett’s statement to be admitted in evidence. He ended by referring to the direction which it would be necessary for the trial judge to give at the trial to the jury concerning the statement. 17. Mr Bennathan did not criticise the judge’s approach to the application of the statutory provisions as a matter of English domestic law. His submission was that consideration of the application of Article 6 and relevant Convention jurisprudence should have led to a decision not to admit Miss Tampsett’s statement in evidence. Article 6(1) requires that ‘in the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … .’ More particularly, Article 6(3)(d) provides: “(3) Everyone charge with a criminal offence has the following minimum rights: (d) to examine or have examined witnesses against him and to obtain the attendance of and examination of witnesses on his behalf under the same conditions as witnesses against him.” 18. Mr Bennathan submitted that it was a breach of Article 6(3)(d) for the statement to be read because Miss Tampsett could not be cross-examined: it was irrelevant that she had died. He relied on a passage from the decision of the European Court of Human Rights in Kostovski v Netherlands (1990) 12 EHRR 434 at paragraph 41: “As a rule, these [Article 6] rights require that an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either at the time the witness was making his statement or at some later stage of the proceedings.” Kostovski had been convicted of armed robbery on the basis of the evidence of anonymous witnesses whom he had no opportunity to question, and, not knowing who they were, he could not attack their credibility. 19. Mr Bennathan also relied on paragraph 40 of the European Court’s decision in Luca v Italy (2003) 36 EHHR 807, which reads: “As the Court has stated on a number of occasions, it may prove necessary in certain circumstances to refer to depositions made during investigative stage (in particular, where a witness refuses to repeat his deposition in public owing to fears for his safety, a not infrequent occurrence in trials concerning Mafia-type organisations). If the defendant has been given an adequate and proper opportunity to challenge the depositions, either when made or at a later stage, their admission in evidence will not in itself contravene Art.6(1) and (3)(d). The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6.” Luca had been convicted on the basis of statement made to the police by a fellow drug dealer who had exercised his right of silence when brought to court. 20. The conjunction of Article 6 and sections 23 to 26 of the 1988 Act in the light of decisions of the European Court has been considered by this court on a number of occasions, and in each case, so far as we are aware, it has been held that the admission of the statement did not infringe Article 6. There is, however, no decision of this court, so far as we are aware, which has considered the situation where, as here, the witness cannot be examined on behalf of the accused because the witness has died since giving the statement. We believe that there is likewise no such decision of the European Court. 21. Recently this court reviewed the European and English decisions in the case of Sellick [2005] EWCA Crim 651 , [2005] 2 Cr. App.R. 15. We need not repeat that process. In Sellick the accused was charged with murder. The trial judge gave leave for four statements to be read, two of them on the basis that he was sure that the makers had been kept away through fear, and two of them on the basis that reasonable steps had been taken to trace them but had failed. In respect of one of the latter he held that it was highly probable that he was kept away by fear. The fourth witness was described by this court as of little importance. 22. As a preliminary to a review of the decisions of the European Court, Waller LJ giving the judgment of the court observed, first, that the jurisprudence had begun its development with cases arising under the inquisitorial process of criminal prosecution existing in many European countries, and without regard to such safeguards as are built into the English adversarial procedure. He noted that under the English procedure there was one moment only, namely at the trial itself, when a prosecution witness could be examined on behalf of a defendant, a point which had not been examined in the European cases, and which was particularly relevant in a case where the witness had been kept away by fear. He stated that it had to be borne in mind that questions whether Article 6 had been infringed were very fact sensitive. Having reviewed eight cases decided by the European Court he drew from them four propositions: “i) The admissibility of evidence is primarily for the national law; ii) Evidence must normally be produced at a public hearing and as a general rule Article 6(1) and (3)(d) require a defendant to be given a proper and adequate opportunity to challenge and question witnesses; iii) It is not necessarily incompatible with Article 6(1) and (3)(d) for depositions to be read and that can be so even if there has been no opportunity to question the witness at any stage of the proceedings. Article 6(3)(d) is simply an illustration of matters to be taken into account in considering whether a fair trial has been held. The reasons for the court holding it necessary that statements should be read and the procedures to counterbalance any handicap to the defence will all be relevant to the issue, whether, where statements have been read, the trial was fair. iv) The quality of the evidence and its inherent reliability, plus the degree of caution exercised in relation to reliance on it, will also be relevant to the question whether the trial was fair.” 23. Those conclusions are in particular assisted by a passage from the European Court’s judgment in Doorson v Netherlands (1996) 22 EHRR 330, under the heading ‘The Court’s general approach’, as follows: “66. As the requirements of Article 6(3) are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6(1) the Court will examine the complaints under Article 6(1) and (3)(d) taken together. 67. The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court’s task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair.” 24. The finding that the three important witnesses in Sellick were absent through fear, was an essential part of the court’s reasoning, For the inducing of that fear was to be attributed to the defendants or those acting on their behalf. It could be asked why it was unfair to the defendants that the statements of the witnesses whose absence they had caused should be read. There is no equivalent factor here. 25. The important factors in the present case are the following. The witness, Miss Tampsett, could not be examined on behalf of the appellant because she had died. She was the only witness whose evidence went directly to the commission of an indecent assault on her by the appellant. If her statement had been excluded, the prosecution would have had to abandon the first count. The appellant was able to attack the accuracy of Miss Tampsett’s statement by exploring the inconsistencies between it and the witnesses, Mr Fish and Mrs Hewlitt, and through the expert evidence relating to ‘altered perception’ under hypnosis. The relevant sections of the 1988 Act contained provisions designed to protect defendants, which were properly considered by the judge, before the statement was admitted in evidence. Lastly, the tribunal of fact, here the jury, could and should take proper account of the difficulties which the admission of a statement might provide for the appellant, which should be provided by an appropriate direction to the jury. 26. Where a witness who is the sole witness of a crime has made a statement to be used in its prosecution and has since died, there may be a strong public interest in the admission of the statement in evidence so that the prosecution may proceed. That was the case here. That public interest must not be allowed to override the requirement that the defendant have a fair trial. Like the court in Sellick we do not consider that the case law of the European Court of Human Rights requires the conclusion that in such circumstances the trial will be unfair. The provision in Article 6(3)(d) that a person charged shall be able to the witnesses against him examined is one specific aspect of a fair trial: but if the opportunity is not provided, the question is ‘whether the proceedings as a whole, including the way the evidence was taken, were fair – Doorson, paragraph 19. This was not a case where the witness had absented himself, whether through fear or otherwise, or had required anonymity, or had exercised a right to keep silent. The reason was death, which has a finality which brings in considerations of its own, as has been indicated at the start of this paragraph. 27. It was suggested by Mr Bennathan that one important consequence of the absence of Miss Tampsett, which made it unfair for her statement to be admitted, was that ‘there were real areas that the defence would have sought to explore about the complainants’ knowledge of each other’s complaints.’ This ignores the stance taken on behalf of the appellant both at the hearing before Judge Rennie when he ruled the statement admissible, and at the trial, not to explore the possibility of collusion between the witnesses: collusion was not suggested. Further, as we have stated, there was nothing to suggest that the women knew the details of each other’s allegations. 28. We have concluded that the rights of the appellant under Article 6 were not infringed by the admission of the statement. We consider that his rights were sufficiently protected in the circumstances of his case. His trial was not unfair. We refer to the matters we have set out in paragraphs 25 , 26 and 27. That conclusion must be subject to the question whether the trial judge gave an appropriate direction to the jury as to the statement. It is well-established that such a direction must be given. The direction to the jury 29. In McCoy 1101674/W4, 10 December 1999, unreported, this court stated: “If a statement of a critical witness is to be read to a jury, perhaps especially in an alibi case where identification is the true issue, it must be incumbent on the trial judge to ensure that the jury realise the drawbacks which are imposed on the defence if the prosecution statement is read to them. It is not enough simply to say that counsel has not had the opportunity of cross-examining. The lay jury may not appreciate the significance of that fact. The judge must at least explain that it means that they may feel quite unable to attach anything like as much weight to the evidence in the statement, as they might if it were tested in cross-examination; and where appropriate it would be necessary, certainly desirable, for the judge also to indicate to the jury by way of illustration the sort of matters that might well be put in cross-examination in the particular case. None of that was done in this case.” The need for an appropriate direction was also emphasised in Sellick , where the direction given at the trial by Butterfield J is set out in paragraph 67 of the judgment. 30. The directions given here were as follows: “Count 1 concerns Susan Tampsett. Her statement was, of course, read to you. As I explained at the time, normally witnesses have to come to court to give evidence, particularly if that evidence is very much in dispute, but there are circumstances or reasons when a witness’s statement can be read. The death of the witness is one of those reasons. We know, tragically, that Miss Tampsett committed suicide. She had become increasingly depressed about the multiple sclerosis, the MS that she was suffering from, and the increasing disability it was causing to her. It is very important that you bear in mind when considering her evidence that you have not seen her give evidence; you have not heard her give evidence; and you have not heard her evidence tested in cross-examination by Mr Seabrook who would, undoubtedly, have had a number of questions to put to her.” and: “So far as Count 1 is concerned, members of the jury, the alleged assault, the touching of Miss Tampsett’s lips, her mouth, her breasts and her bottom for the defendant’s sexual gratification, bear in mind, as I said, that this evidence was read to you. The allegation is completely denied, and as I have said, Mr Seabrook would have had a number of questions for Miss Tampsett, and you must take that into account when considering her evidence. The prosecution suggest that her evidence is supported by the evidence of Miss Upton, Miss Koster and Miss Dudeney.” 31. We consider that it would have been better if the judge had stated explicitly that the appellant was potentially disadvantaged by the absence of Miss Tampsett and that in consequence of the inability to cross-examine her and of the jury to see her, her evidence should carry less weight with them. Nonetheless, in the circumstances of this case it must have been wholly clear to the jury from the directions the judge did give, that this was the purpose of his remarks. We therefore consider that the jury were given an adequate direction as to the consequences of Miss Tampsett’s statement being in evidence in her absence, and that this is not a factor which might make the appellant’s trial unfair and in breach of Article 6. We should also say that overall the evidence against the appellant was very strong. We were wholly unpersuaded that the verdicts were unsafe.

2005_11_03-626.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/2697/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/2697

fb3c4e2966a166e70b394461396e1046e7f199b76d7e76c16ff2f15ef42d6cba

[2024] EWCA Crim 336

EWCA_Crim_336

2024-03-20

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making are that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. I N THE COURT OF APPEAL CRIMINAL DIVISION Case No: 2024/00371/A2 NCN: [2024] EWCA Crim 336 Royal Courts of Justice The Strand London WC2A 2LL Wednesday 20 th March 2024 B e f o r e: LADY JUSTICE MACUR DBE MR JUSTICE HOLGATE HIS HONOUR JUDGE PATRICK FIELD ( Sitting as a Judge of the Court of Appeal Criminal Division ) ____________________ R E X - v - LEE HOLDSHIP ____________________ Computer Aided Transcription of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _____________________ Mr N Spasojevic appeared on behalf of the Appellant ____________________ J U D G M E N T ____________________ Wednesday 20 th March 2024 LADY JUSTICE MACUR: I shall ask Mr Justice Holgate to give the judgment of the court. MR JUSTICE HOLGATE: 1. On 2 nd January 2024, in the Crown Court at Cambridge before His Honour Judge Enright, the appellant pleaded guilty on re-arraignment to aggravated vehicle taking (count 2), and also pleaded guilty to three counts of common assault (counts 4, 5, and 6), which were added on that date. On 3 rd January 2024, he was sentenced by the same judge to an overall term of imprisonment of 21 months, comprising 15 months on count 2, and consecutive terms of two months on each of counts 4, 5 and 6. The judge disqualified the appellant from driving for a total period of 34 months (comprising a discretionary period of 24 months and an extension period of 10 months), and imposed a restraining order for five years. The appellant now appeals against sentence with the leave of the single judge. 2. We summarise the facts. Count 2 3. The appellant was in a relationship with Lilian Hill for about two and a half years. On 3 rd June 2023 they had already separated, but agreed to meet at a hotel in order to discuss the possibility of the appellant remaining in contact with Miss Hill's youngest child. After an argument with Miss Hill, the appellant, who had been drinking, became aggressive. She felt uncomfortable and left the hotel. She had travelled there in the disability car belonging to her mother, Helen Synnott, which she had full permission to use. It was a Toyota Yaris, valued at about £11,000, but which had been modified as a disability vehicle. Miss Hill left the vehicle at the hotel as she too had consumed alcohol. She travelled home by taxi. 4. After Ms Hill arrived home, she discovered that the appellant had taken the Toyota and had driven it from the hotel. The vehicle was returned to her driveway at around 2 am. It had been involved in a collision with another car. The damage to the vehicle was so substantial that it had to be written off. The appellant accepted causing the damage. Miss Hill reported the damaged vehicle to the police. When she did so, she also provided a detailed statement outlining the background of her relationship with the appellant, the breakdown of that relationship and three physical assaults upon her. Count 4 5. The appellant and Miss Hill married on 8 th June 2021. The appellant had been drinking throughout the day and, when the couple went to their room, he started a jealous argument over her previous sexual relationships. Miss Hill tried to leave. The appellant grabbed her by her hair and dragged her to the floor. Miss Hill's hair came out in clumps and she had a severe headache. As she stood up, the appellant pushed her down onto the bed and choked her tightly around the neck so that she could barely breathe. She was able to pull the appellant's hands off and escape. Count 5 6. In January 2023, the appellant was about to smoke a cannabis joint when Miss Hill confronted him about that, resulting in an argument. The appellant lit the joint, smoked some of it and then put it out on Miss Hill's arm, causing a burn. Count 6 7. In February 2023, the appellant and Miss Hill were watching television with her children. Later, when she went up to the bedroom, the appellant was already in bed. She turned the television on, in order to help her to get to sleep, at which point the appellant leapt up and knocked the television onto the floor, causing it to smash. That alerted Miss Hill's two eldest children to run in. The appellant was pulling Miss Hill by her hair. The children asked him to stop. He went downstairs and sat in a car outside. That was the last time that Miss Hill saw the appellant before the offence of aggravated vehicle taking. 8. The appellant was aged 41 when he was sentenced,. He had 27 convictions for 63 offences between May 1999 and March 2022. There were no previous driving offences, but there were a significant number of offences involving domestic violence and breaches of non-molestation orders. 9. There was no pre-sentence report in this case. We consider that the judge would have been well-advised to have ordered one. However, for the purposes of section 33 of the Sentencing Act 2020, we have concluded that a pre-appeal report is not necessary for the fair disposal of this appeal in the light of the updated information which the court has received. 10. We have read the victim personal statements of Helen Synnott and Lilian Hill. 11. In passing sentence, the judge said that he had been referred to the sentencing guidelines on aggravated vehicle taking for Magistrates' Courts, but they did not constrain his assessment as the case had been committed to the Crown Court for sentence. For count 2, the appropriate starting point was one year's custody. That was increased to 18 months for being under the influence of alcohol and for writing off the mobility adapted car of a disabled person. 12. The appellant has caring responsibilities for his brother who suffers from dementia. But the judge did not treat that as a mitigating factor because he said that it was the responsibility of the local authority to provide care. He allowed a credit of about 15 per cent for the guilty plea which had been tendered on the first day of the trial. 13. We are grateful to Mr Spasojevic for his helpful written and oral submissions. The appellant does not take issue with the consecutive sentences imposed on counts 4, 5 and 6, the period of disqualification, or the restraining order. The appeal relates solely to the sentence of 15 months' imprisonment imposed on count 2. It is submitted that that was manifestly excessive. The appellant had no previous convictions for driving offences, and he had important caring responsibilities for his brother. While he has been in prison, a friend of the appellant and her daughter have looked after his brother. It is said that there has been little or no assistance from the local authority and that the condition of the appellant’s brother has deteriorated. 14. It is also submitted that a sentence after trial of 18 months' imprisonment for count 2 was too close to the statutory maximum of two years. That sentence would have been more appropriate to cases, for example, where injury was caused. Discussion 15. We do not accept the judge's apparent view that no weight should necessarily be given to the appellant's role as the primary carer for his brother. The significance of that factor would depend upon the precise circumstances of the case. 16. In giving leave to appeal, the single judge rightly suggested that the appellant, or his representatives, should assist the full court by providing the evidence relied upon to support the assertion that the local authority has provided no support and will not do so. 17. In an email sent on 11 th August 2023 a care co-ordinator at Support 4U Healthcare Limited, gave a very brief description of the services which they had been providing for the appellant’s brother since October 2022, based upon four visits each day. She said that the police had pointed out that care responsibilities could be raised with the local authority, but that had yet to be done. A second email from that organisation dated 13 th March 2024 said that they were continuing to make four visits a day. The writer simply said that she was not aware of any local authority involvement in providing care for the appellant's brother, but no more information was provided. For example, nothing was said as to whether any contact has been made with the local authority and if so, when, by whom and what response the authority gave. 18. It is also apparent from the information before the court that a level of care is being provided. Despite the opportunity which has been given, there is nothing before the court to suggest that this should have been a significant mitigating factor in the circumstances of this offending. 19. Ultimately, the question is whether the overall sentence imposed was manifestly excessive. We do not think that it was. We would point out that the appellant could have had no complaint if the sentence for count 4 had been higher. That was a serious type of common assault, involving choking in a domestic context. Furthermore, the judge allowed 15 per cent credit for the guilty plea, rather than the more usual ten per cent. 20. Turning to count 2, a sentence of 18 months' imprisonment after trial still allows significant headroom before reaching the maximum sentence of two years for more serious offending. It is well established in the authorities that where a statutory maximum is relatively low, as here, a bunching effect is to be expected for sentences approaching that maximum. A range of different forms of serious offending will merit similar sentences in that upper range. 21. It should be borne in mind that, although no personal injury was involved, the appellant caused the Toyota, which had been specially adapted to meet the needs of a disabled person, to be written off. The harm is not simply the monetary value of the car. The effect on Ms Synnott has been serious. She has stage 4 cancer and has to attend many hospital appointments. Furthermore, the car was involved in a damage only collision with another vehicle. We also consider that the judge was entitled to attach significance to the fact that the aggravated vehicle taking took place whilst the appellant was under the influence of alcohol. 22. We conclude that neither the sentence imposed on count 2, nor the overall sentence of 21 months' imprisonment was manifestly excessive. 23. The judge ordered disqualification from driving for an overall period of 34 months, including a discretionary period of 24 months. Applying R v Needham [2016] EWCA Crim 455 [2016] 1 WLR 4449, R v Morrison [2021[ EWCA Crim 917 [2022] 1 Cr. App. R. (S) 20 and section 11(3) of the Criminal Appeals Act 1968, we direct that the record in the Crown Court be amended by reducing the overall period of disqualification of 34 months to one of 33 months and 30 days, comprising a discretionary period of 24 months, an uplift period of seven months and 15 days, and an extension period of two months and 15 days. 24. To that extent only, the appeal is allowed. _____________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: [email protected] ______________________________

2024_03_20-6098.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/336/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2024/336

51c65c67d98b06cff9bfd2911037c204e0752f4d5d1de4429a8bfda499d3e1ad

[2022] EWCA Crim 1628

EWCA_Crim_1628

2022-12-01

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION Case No: 2022/01475/A4 NCN: [2022] EWCA Crim 1628 Royal Courts of Justice The Strand London WC2A 2LL Thursday 1 st Decmber 2022 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Burnett of Maldon ) MRS JUSTICE McGOWAN DBE MR JUSTICE JACOBS ____________________ R E X - v – DAVID WILLIAM RYAN ____________________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) ____________________ Mr R Vardon appeared on behalf of the Appellant ____________________ J U D G M E N T ____________________ Thursday 1 st December 2022 THE LORD CHIEF JUSTICE: I shall ask Mr Justice Jacobs to give the judgment of the court. MR JUSTICE JACOBS: 1. On 8 th March 2022, in the Crown Court at Manchester, the appellant, David Ryan, pleaded guilty to three counts on an indictment: dangerous driving (count 1), assault on an emergency worker (count 2) and possession of a Class A drug (cocaine) with intent to supply (count 4). Another charge was ordered to lie on the file. 2. On 6 th May 2022, in the Crown Court at Manchester, Ms Recorder Hudson sentenced the appellant to a total of 42 months' imprisonment. This comprised a sentence of 12 months for the offence of dangerous driving, which was ordered to run consecutively to a sentence of 30 months' imprisonment for the offence of possession of a Class A drug with intent to supply. For the assault on an emergency worker (count 2) the appellant was sentenced to a concurrent term of one month's imprisonment. He was also disqualified from driving for a period of 39 months. 3. The appellant now appeals against sentence with the leave of the single judge. The focus of the argument on the appeal is the sentence of 30 months' imprisonment for the possession of a Class A drug with intent to supply. We are grateful to Mr Vardon for his short, but clear submissions. 4. The circumstances of the offences were as follows. At about 8.30 am on Sunday 19 th September 2021, a CCTV camera operator at the Manchester Fort retail park saw the appellant park his BMW car in the car park. The operator saw that the appellant appeared to be smoking a pipe, using some white powder. The operator then thought he saw the appellant take a sawn- off shotgun from the rear of the car and put it down by the right hand side of the driver's seat. The operator called the police, but the appellant drove away. Armed police officers were deployed to try to locate the BMW car which the appellant was driving. The officers did not recover a firearm and the appellant was never charged with any firearm offence. 5. The first officers to see the BMW were in full uniform in a marked police Armed Response Unit vehicle. They saw the appellant's car parked in another car park. The officers parked their vehicle behind the BMW and approached the driver's side of the car. The appellant was the only person in the BMW. One of the officers shouted, "Armed police", drew his handgun and pointed it towards the appellant in the car. The appellant started to manoeuvre the BMW, so one of the officers broke the driver's window whilst the other continued to point his gun at the appellant and told him to stop. Both officers tried to take hold of the appellant by his shirt and upper body. The appellant pulled away from them and in so doing, pulled the officers' hands and arms inside the car through the broken glass of the window. One of the officers sustained cuts in the process, requiring five stitches to a cut to his hand. This was the subject matter of the assault charge. The appellant continued to manoeuvre the car and managed to get it into a position where he was able to drive towards the exit of the car park. He then drove straight into the police car before reversing and driving off at high speed. 6. Other officers were looking for him and they saw him. They tried to follow but, due to the speed and manner of the appellant's driving, they abandoned the chase in order to minimise the risk to other road users. A few minutes later, the car was seen to park up and the appellant set off on foot. He was followed by officers and arrested. He was found to be in possession of a crack cocaine smoking pipe, ten grams of crack cocaine and six grams of heroin. An analysis of a blood sample taken from the appellant after his arrest showed that the level of cocaine in his blood was greater than twice the legal limit for driving. 7. The appellant's home address was then searched. Officers found just over 160 wraps of crack cocaine, as well as cannabis. The total street value of the cocaine was over £1,500. The weight of the cocaine was not, as has been suggested in some of the materials before us and the Recorder, 160 grams. The weight was in fact around 18 grams. In the appellant's car two mobile phones were found: they contained messages in which individuals were asking for drugs to be supplied to them. 8. In interview, the appellant made no comment, other than to say that he had not been in possession of a gun. 9. For the purposes of the sentencing hearing, the appellant lodged a written Basis of Plea, which was acceptable to the Crown. It stated that the cocaine had been bought in bulk by bank transfer, funded by a Universal Credit back payment; that the drugs were intended primarily for the appellant's own use (he had been a heavy drug user for many years); and that he would have supplied two friends, Lee and Charmaine, both of whom are drug users, who would also supply him. 10. The appellant, who was aged 41 at the time of sentence, had 24 previous convictions for 57 offences, spanning 2003 to 2022. These were mainly for theft and fraud, but also included one drug offence (the production of cannabis) in 2018, two offences against the person (affray and common assault in 2015), and convictions for driving whilst disqualified in 2004, and dangerous driving in 2008. At the time of the index offences, the appellant had been released under investigation for an offence of driving under the influence of drugs. He subsequently pleaded guilty to that offence and was sentenced to a conditional discharge and disqualified from driving for 12 months. 11. The Recorder had the benefit of a pre-sentence report. The author's assessment was that a combination of substance misuse, impulsivity, poor decision making, and financial gain regarding the drugs offence, contributed towards the appellant's offending on this occasion. The appellant acknowledged to the author of the pre-sentence report that he had been using crack cocaine and heroin for the past 20 years. Whilst he had achieved short periods of abstinence, he always ended up relapsing, particularly when he was faced with stressful situations. He had previously been diagnosed with an emotionally unstable personality disorder, severe anxiety and depression, and at one point he had been sectioned under the Mental Health Act. He had self-medicated with drugs when he had been on long waiting lists for mental health services in the past. The author considered that the appellant posed a high risk of serious harm towards the public and acknowledged that the court could well impose a custodial sentence. In the event, the Recorder did impose such a sentence. There is no suggestion that she was wrong to do so. The only argument on appeal has been as to the length of the sentence. 12. In her sentencing remarks, the Recorder accepted that the appellant did not have a gun, albeit that the police believed that he may have had one. She accepted that the conduct of the officers may well have sent him into a panic. She referred to 160 wraps of cocaine, which she considered to be a huge quantity in the context of purchase for the appellant and his two friends. But she said that she would sentence him on the basis of plea which we have already described. 13. In relation to the offence of possession of Class A drug with intent to supply, which was the most serious offence, she said that it was a category 3 offence under the relevant guidelines and that the appellant had played a "significant role", but she accepted that it had features of a "lesser role". She took into account "the very sad history" set out in the pre-sentence report, but noted the positive fact that the appellant had been abstinent during his eight months in custody. We have been told that that has remained the position since the time of sentence. The Recorder gave the appellant credit of 20 per cent for his guilty pleas, took into account totality, and, as we have said, imposed 30 months' imprisonment for the drug offence and a consecutive term of 12 months' imprisonment for the dangerous driving. 14. In his written submissions on behalf of the appellant, Mr Vardon submitted that the overall sentence of 42 months' imprisonment was too high. The focus of his oral submissions this morning has been on the offence of possession of a Class A drug with intent to supply. There is no suggestion that the Recorder's sentence in respect of the other matters could in any way be criticised. 15. The principal argument advanced was that, whilst this was a category 3 offence under the guideline, the appellant should – taking into account the basis of plea – have been sentenced on the basis that his was a "lesser role", rather than a "significant role". Mr Vardon also relied upon the mitigating factors, in particular the appellant's mental health, his lack of drug supply convictions, and his determined effort to remain abstinent whilst in prison. 16. We have considered those submissions. We take the view that Mr Vardon's submission that this was a category 3 "lesser role" is persuasive. Under the guidelines which were in effect at the time of sentence, category 3 included selling directly to users. This was what happened in the present case, albeit that in accordance with the basis of plea those sales were being made to the appellant's friends. The quantity of drugs involved (18 grams) would not qualify as category 3, which under the guideline is based upon 150 grams. Nevertheless, because this was an offence of supplying direct to users, as evidenced by various phone messages which were before the Recorder, it was indeed a category 3 offence. 17. The relevant starting point, and therefore the range for this category 3 offence, depends upon whether the appellant's role was "significant", as the Recorder considered to be the case, or "lesser". If it is a lesser role, then there is a starting point of three years' custody, and a range of two years to four years six months. The Recorder, as we have said, considered the appellant's role to be "significant", with elements of "lesser". 18. We consider that, viewing the matter in the round in the light of the basis of plea, this was a case which was within, or at least much closer to, a "lesser role" than a "significant role". We therefore approach the sentence on the basis that there should have been a starting point of three years' custody, prior to credit for the appellant's guilty plea. 19. In accordance with the guideline, the sentence should also have reflected the relatively low quantity of drugs which were found at the appellant's home. The quantity, as we have said, was 18 grams, well below the 150 grams which is the indicative quantity for category 3 under the guideline. A quantity of 18 grams cannot be regarded as huge, although we read the Recorder’s sentencing remarks as making the fair point that it was huge in the context of personal use and supply to two friends. 20. Overall, since we consider that the categorisation here was lesser, or at least far closer to lesser than significant, we have concluded that the sentence on the drugs offence was manifestly excessive for a category 3 "lesser role" role. We propose, therefore, to reduce that sentence by six months. In making that reduction, we bear in mind that this offence is not to be considered in isolation, and that the dangerous driving offence was serious. Nevertheless, we consider that a reduction is warranted in this case. 21. It is then necessary to say something about two aspects of the disqualification from driving. First, after a conviction for dangerous driving, a disqualification until an offender passes an extended driving test is obligatory, pursuant to section 36 of the Road Traffic Offenders Act 1988 . That section does not apply if an order for such a test is already in force. That is not the case here. Accordingly, the appellant is disqualified until that extended test is passed. 22. Secondly, the decision in R v Needham [2016] EWCA Crim 455 requires sentencing judges (and now ourselves) to identify separately the constituent elements of an overall disqualification period in circumstances where the period is being extended as a result of a sentence of imprisonment being imposed, and where an extension is necessary in order to avoid defendants serving some or all of their disqualification in prison, rather than in the community after release. 23. The Recorder decided that an 18 month period of disqualification from driving was appropriate in relation to the offence of dangerous driving. There is no appeal against that decision. 24. In view of our decision to reduce the overall sentence on the drug supply offence, there needs to be a reduction in the disqualification period. Therefore, using the terminology in Needham , the constituent elements of the disqualification are as follows. There is a discretionary disqualification period of 18 months for the dangerous driving offence, a section 35A extension period of six months in relation to the dangerous driving offence, and a further section 35B uplift of 12 months because of the prison sentence for the drug supply offence. The total period of disqualification is, therefore, 36 months. 25. For those reasons, and to that extent, we allow the appeal. __________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected] ______________________________

2022_12_01-5515.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/1628/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/1628

b58a60d36fd65878b71a09ed91eddd7c4081614dc8cc1e081bc03bcc72e393f0

[2011] EWCA Crim 1339

EWCA_Crim_1339

2011-05-27

crown_court

Neutral Citation Number: [2011] EWCA Crim 1339 Case No: 200904784/201004410B5 , 200904811B5 , COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SNARESBROOK Her Honour Judge Beech Royal Courts of Justice Strand, London, WC2A 2LL Date: 27/05/2011 Before : LORD JUSTICE PITCHFORD MR JUSTICE TREACY and THE RECORDER OF BIRMINGHAM (HH JUDGE WILLIAM DAVIS QC) - - - - - - - - - - - - - - - - - - - - - Between : O’Grady Plant and Haulage Limited Paul O’Grady Sarah O’Grady Appellants an

Neutral Citation Number: [2011] EWCA Crim 1339 Case No: 200904784/201004410B5 , 200904811B5 , COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SNARESBROOK Her Honour Judge Beech Royal Courts of Justice Strand, London, WC2A 2LL Date: 27/05/2011 Before : LORD JUSTICE PITCHFORD MR JUSTICE TREACY and THE RECORDER OF BIRMINGHAM (HH JUDGE WILLIAM DAVIS QC) - - - - - - - - - - - - - - - - - - - - - Between : O’Grady Plant and Haulage Limited Paul O’Grady Sarah O’Grady Appellants and London Borough of Tower Hamlets Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - R Harwood (instructed by Noble Solicitors and the Registrar of Criminal Appeals ) for the Appellant s/Applicant R Birch (instructed by London Borough of Tower Hamlets ) for the Respondent Hearing date: 12 April 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pitchford : 1. Each member of the court has contributed to this judgment. The proceedings 2. On 7 August 2009, at Snaresbrook Crown after a trial before Her Honour Judge Beech, the first appellant, O’Grady Plant and Haulage Limited (“the company”), was found guilty by the jury of counts 1 and 3 in the indictment; the second appellant, Paul O’Grady, was found guilty of counts 2 and 4. The first and second appellants were charged with offences contrary to section 33(1) Environmental Protection Act 1990 . In summary, it was alleged that they, between 29 March 2007 and 7 March 2008: (1) deposited controlled waste on land without a waste management licence authorising the deposit, contrary to section 33(1) (a) of the Act ; (2) treated, kept or disposed of controlled waste on land without a waste management licence authorising the treatment, keeping or disposal, contrary to section 33(1) (b) of the Act . The company was charged with the section 33(1) (a) offence in count 1; Mr O’Grady was charged with the same offence in count 2. The company was charged with the section 33(1) (b) offence in count 3; Mr O’Grady was charged with the same offence in count 4. Mr O’Grady was the sole director of the company. The third appellant, his wife, was the company secretary. Mr and Mrs O’Grady were the effective owners of the company. 3. The first and second appellants appeal against their convictions with the leave of the single judge. 4. On 21 September 2009 Mr O’Grady was sentenced to a fine of £6,000 upon each of counts 2 and 4. No additional penalty was imposed on the company. On 10 November 2009 the sentence upon Mr O’Grady was varied under section 155 of the Criminal Courts (Sentencing) Act 2000 to a conditional discharge for 2 years upon each count. 5. On 16 April 2010 the trial judge made an order that Mr O’Grady pay prosecution costs in the sum of £27,665. His application for an extension of time within which to seek leave to appeal against the costs order has been referred to the full court by the Registrar. 6. On 21 August 2009 the Crown Court, in anticipation of confiscation proceedings, granted restraining orders against both Mr and Mrs O’Grady. The confiscation proceedings were ineffective and eventually discontinued. Mr O’Grady had the benefit of publicly funded legal representation throughout. Mrs O’Grady’s legal representation in the restraint proceedings was privately funded. On 16 th April 2010 the London Borough of Tower Hamlets was ordered to pay to Mrs O’Grady the sum of £1,573.38, said to be twenty per cent of her costs in the restraint proceedings. Mrs O’Grady seeks leave to appeal the costs order. Appeals against conviction The legislative framework 7. Section 33(1) of the Environmental Protection Act1990 Act provided at the relevant time: “ 33. Prohibition on unauthorised or harmful deposit, treatment or disposal etc. of waste. (1) Subject to subsections (2) and (3) below and, in relation to Scotland, to section 54 below, a person shall not— (a) deposit controlled waste, or knowingly cause or knowingly permit controlled waste to be deposited in or on any land unless a waste management licence authorising the deposit is in force and the deposit is in accordance with the licence; (b) treat, keep or dispose of controlled waste, or knowingly cause or knowingly permit controlled waste to be treated, kept or disposed of — (i) in or on any land, or (ii) by means of any mobile plant, except under and in accordance with a waste management licence; (c) treat, keep or dispose of controlled waste in a manner likely to cause pollution of the environment or harm to human health.” 8. By section 75(1) “waste” means any substance or object in categories listed in schedule 2B, which include virtually any substance surplus to requirements and, by section 75(4), “controlled waste” means household, industrial and commercial waste or any such waste. At trial nothing turned on the definition of waste. 9. By subsection (3) of section 33 , section 33(1) (a) and (b) did not apply: “in cases prescribed in regulations made by the Secretary of State and the regulations may make difference exceptions for different areas.” 10. The Waste Management Licensing Regulations 1994 were made under the power given to the Secretary of State by section 33(3) and (4) of the Act . Regulation 17(1) provided: “(1) Subject to the following provisions of this regulation and to any conditions or limitations in Schedule 3, section 33(1) (a) and (b) of the 1990 Act shall not apply in relation to the carrying on of any exempt activity set out in that Schedule.” The application of regulation 17(1) is subject to regulation 17(4) which provides: “(4) Paragraph (1) above only applies in relation to an exempt activity involving the disposal or recovery of waste by an establishment or undertaking if the type and quantity of waste submitted to the activity, and the method of disposal or recovery, are consistent with the need to attain the objectives mentioned in paragraph 4(1)(a) of Part 1 of Schedule 4 .” [italics added] 11. By regulation 18(2) it is the duty of the “appropriate registration authority” to establish and maintain a register of establishments and undertakings carrying on exempt activities involving the recovery or disposal of waste. By regulation 18(1) it is an offence for such an establishment or undertaking to carry on an exempt activity without being registered with the appropriate registration authority. At the relevant times the appellant company was registered with the London Borough of Enfield who granted a permit under paragraph 24 of schedule 3, namely for: “(1) Crushing, grinding or other size reduction of waste bricks, tiles or concrete, under an authorisation granted under Part 1 of the 1990 Act , to the extent that it is or forms part of a process within paragraph (c) of Part B of section 3.4 (other mineral processes) of Schedule 1 to the 1991 Regulations [or under a permit under the 2000 Regulations to the extent that it is or forms part of an activity within paragraph (a) of Part B of Section 3.5 (other mineral activities) of Part 1 of Schedule 1 to the 2000 Regulations]. (2) Where any such crushing, grinding or other size reduction is carried out otherwise than at the place where the waste is produced, the exemption conferred by sub-paragraph 1 above only applies if those activities are carried out with a view to recovery or reuse of the waste. (3) The storage, at the place where the process is carried on, of any such waste which is intended to be so crushed, ground or otherwise reduced in size, if the total quantity of such waste so stored at that place at any one time does not exceed 20,000 tonnes. 12. The prosecution agreed at trial that the defendant company was entitled to a further exemption under paragraph 13 of schedule 3: “(1) The manufacture from – (a) waste which arises from demolition or construction work or tunnelling or other excavations; or (b) waste which consists of ash, slag, clinker, rock, wood, bark, paper, straw or gypsum, of timber products, straw board, plasterboard, bricks, blocks, roadstone or aggregate. (2) The manufacture of soil or soil substitutes from any of the wastes listed in sub-paragraph (1) above if – (a) the manufacture is carried out at the place where either the waste is produced or the manufactured product is to be applied to land; and (b) the total amount manufactured at that place on any day does not exceed 500 tonnes. (3) The treatment of waste soil or rock which, when treated, is to be spread on land... (4) The storage of waste which is to be submitted to any of the activities mentioned in sub-paragraphs (1) to (3) above if – (a) the waste is stored at the place where the activity is to be carried on; and (b) the total quantity of waste stored at that place does not exceed – (i) in the case of manufacture of roadstone from road planings, 50,000 tonnes; and (ii) in any other case, 20,000 tonnes.” The prosecution did not seek to argue at trial that the appellants were in breach of any of the conditions of the paragraph 13 or 24 exemptions. 13. Paragraph 4(1)(a) of schedule 4 (referred to in regulation 17(4) above) provided: “(1) For the purposes of this Schedule, the following objectives are relevant objectives in relation to the disposal or recovery of waste – (a) Ensuring that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment and in particular without – (i) risk to water, air, soil, plants or animals; or (ii) causing nuisance through noise or odours; or (iii) adversely affecting the countryside or places of special interest.” The evidence 14. For the moment we need refer to the evidence only in summary. The company was tenant of a site, formerly a furniture factory, at 616 Wick Lane, London E3. In 2005, when the company acquired the site, it was on condition that when it relinquished possession the few buildings which remained would be demolished and cleared. Mr O’Grady used the site as his haulage depot for heavy open trucks and fashioned offices from the remaining buildings. Also stored on the site was some heavy earth moving machinery and a concrete crushing machine. Neighbouring residents complained to the environmental protection department of Tower Hamlets about dust and smoke emanating from activities on the site. The residents began to monitor activity and take photographs of those activities. Mr Okey Ngoka, environmental health technical officer was the residents’ point of reference. The principal residential witnesses for the prosecution were Peter Downie and his partner, Zoe Camper, Wendy Miller and Sam Armstrong. They lived in a work/living block of flats at 417 Wick Lane, overlooking the site. Supporting evidence was given by Mr Ngoka who visited the residents from time to time to receive their complaints and to view the alleged nuisance for himself. The oral evidence was supported by an album of some 165 contemporaneous photographs. Much of the evidence at trial concerned the proper interpretation of the photographs. The photographs were taken by the residents throughout the period April to August and November 2007. 15. The residents gave evidence that Mr O’Grady was bringing building or other rubble and soil to the site from outside. Broken up concrete would be crushed in the concrete crushing machine; wood and other material was burned; the waste would be gathered up in heaps. They complained of noxious and acrid smoke, dust and noise. They were unable to open their windows in warm weather. If they did, their flats would become contaminated with dust. 16. Wendy Miller gave evidence that she was an asthma sufferer. She had not suffered particular problems until Mr O’Grady’s business moved on to the site. She inhaled dust. The piles of waste material became higher and higher. She complained to Mr Ngoka on 3 March 2008 that during an intense period of 7 days trucks loaded with reinforced, broken concrete had dropped their loads within the site. Sam Armstrong had taken photographs on 21 June 2007 showing a lorry, belonging to a firm called Bedrock, depositing its load of concrete at the site and leaving. 17. Mr Ngoka gave evidence of observations made by him in July 2006 (before the indictment period), 18 May 2007, and several days in April and May 2007. Mr Ngoka estimated that he spoke to Mr Downie on one or two occasions per month throughout the indictment period. He carried out an inquiry into the delivery by the Bedrock lorry and recovered the consignment note. 18. Keith Sandland, a building control surveyor, gave evidence that he had visited the site on various occasions between 2001 and 2007. In his estimation, which he accepted was not a calculation but a “guestimate”, there was significantly greater quantity of heaped spoil on the site in July 2008 than there had been before Mr O’Grady took occupation in 2005. 19. Mr O’Grady gave evidence that he used the concrete crusher (for which he had a permit) only occasionally. It was fitted with dust suppression equipment. He employed water jets on the site. He said the complaints were either untrue or grossly exaggerated. He denied that he tipped waste on the site. Any waste seen there was generated by demolition of buildings on the site itself. Sometimes lorries returning to the site to undergo MOT checks needed to drop their loads. That was why some photographs showed trucks in the tipping position. He asserted that the Bedrock delivery had nothing to do with him. Bedrock had not sought permission to tip the load. In his opinion there was a conspiracy between Mr Ngoka and the owner of Bedrock, Mr Gannon, to make the delivery in order that Mr Armstrong could take his photographs. In other words, Mr O’Grady was accusing Mr Ngoka of manufacturing the evidence against the appellants. One of Mr O’Grady’s drivers, Danny Reardon, gave evidence about a load of crushed concrete which he delivered to the site on 21 April 2007. It emanated, he said, from the site itself, was to be delivered to a customer, but was returned as surplus to requirements. Shafiq Malik was the property developer who had arranged Mr O’Grady’s tenancy. He gave limited evidence in support of the defendants. Mrs Sarah O’Grady gave evidence that the company did not accept waste. She described the dust suppressing equipment available on site and produced photographs the following day to support her evidence. 20. The judge commenced and completed her summing up on Friday 7 August 2009 and the jury returned unanimous guilty verdicts on the same day. Ground 1 – Application of the regulation 17 exemption 21. As we have said, the appellants’ principal case at trial was that no waste was brought to the site from outside; if that was so, no offence was committed under section 33(1) (a) of the Act . Secondly, the terms of Mr O’Grady’s concrete crusher exemption enabled him to process waste generated on the site itself; accordingly, he was, under regulation 17(1) exempt from the requirement for a waste management licence for the purposes of section 33(1) (a) and (b). 22. It was submitted by Mr Harwood, who also represented both appellants at their trial, that even if waste was brought to the site it was, on the prosecution case, for the purpose of processing waste for the production of aggregates. That was an exempt activity under the paragraph 13, schedule 3 exemption; it followed that both the section 33(1) (a) and the section 33(1) (b) activities were exempt from the requirement for a waste management licence. 23. The learned judge accepted that the exemption from holding a waste management licence applied unless the regulation 17(1)/schedule 3 exemptions were disapplied by regulation 17(4). The judge ruled to this effect at the close of the prosecution case. She directed the jury as follows as to counts 1 and 3: “So what are the ingredients of count 1 about which you must be sure before you can convict the company? Firstly, you must be satisfied that the piles of material you can see in the photographs is controlled waste. You shouldn’t have too much difficulty with that because it has been agreed… Secondly, you must be satisfied that controlled waste was deposited on the site… Thirdly, if you are satisfied that waste was deposited on the site from outside within the indictment dates, rather than it having been created by demolition work on the site, you must then go on to consider whether the company knowingly…permitted the controlled waste to be deposited on the site… [Fourthly], you must go on to consider whether the type of waste deposited, the way in which it was deposited and in the volume or amount that was deposited were consistent with the need to retain the objectives of ensuring that human health was not endangered and without using processes or methods which could have harmed the environment and, in particular, that it posed a risk to air by the creation of dust and could have caused a nuisance through noise…” The judge gave a similar direction as to the application of the exemption to the charge of depositing waste (count 2) against Mr O’Grady, and to the charges of keeping, disposing of or treating the same waste (counts 3 and 4) against the company and Mr Mr O’Grady. 24. Mr Harwood’s argument is that Her Honour Judge Beech did not appreciate that an offence would not be committed under section 33(1) (a) or (b) provided the terms of the schedule 3, paragraphs 13 and/or 24 exemptions were met, whether or not on any particular occasion the operation might be harmful to the environment or human health. Mr Harwood submitted to the judge and to this court that the test of harm to the environment or human health was confined to the offence created by section 33(1) (c) which applied whether or not the operator had a waste management licence. The prosecutor could have charged the defendants under that subsection but had chosen not to do so. Mr Harwood submitted that reg 17 (4) removed the exemption only if the process and methods as envisaged by the schedule 3 exemption failed to meet the objectives mentioned in paragraph 4 (1) (a) of schedule 4. So, if the process and method of treating waste (for example operations of an approved concrete crusher) were capable of being operated in accordance with the paragraph 4 (1) (a) exemption, the fact that on any particular occasion the process or method was being misused or inappropriately used so as to fail those objectives did not have the effect of removing the exemption. The prosecutor would be driven Mr Harwood submits, to prosecute under section 33 (1) (c). If Mr Harwood’s argument is right it would mean that the licensing authority should have applied the paragraph 4(1)(a) test to the operator and the equipment before registering the exemption. We see no such requirement in the regulations and none was drawn to our attention. Furthermore, it would require the authority to anticipate all the circumstances in which the operation would be carried on. 25. The judge ruled that the obligations created by schedule 3 and paragraph 4(1)(a) of schedule 4 were cumulative. Not only must the operator abide by the terms of the permit but the exemption granted was disapplied if “the type and quantity of waste submitted to the activity and the method of disposal or recovery” (paragraph 17(4)) were not consistent with the need to ensure “that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment...” (paragraph 4(1)(a), schedule 4). 26. This is a matter of construction. Section 33(3) of the Act disapplies section 33(1) in cases which the regulations may prescribe. Those cases were defined in regulation 17(1) of the Regulations. Subject to the further provisions of the regulation, the activities (subject to their conditions) listed in schedule 3 were exempt. However, by regulation 17(4) those exemptions would only apply to an activity “involving the disposal or recovery of waste...if the type and quantity of waste submitted to the activity, and the method of disposal or recovery are consistent with the need to attain the objective” of “ensuring that waste is recovered or disposed of without endangering human health” etc. If Mr Harwood’s construction is to be preferred it is necessary to imply into regulation 17 (1) and (4) words which are not present to the effect that an exemption under schedule 3 is deemed to comply with the objectives identified in paragraph 4 (1) (a) of schedule 4. In our view, no such implication is necessary or appropriate. The plain words of regulation 17(1) and (4) require that in order to attract exemption from the requirement of section 33(1) (a) and (b) of the Act , (not without a waste management licence to deposit or treat, keep or dispose of controlled waste), the operator must: (1) obtain an exemption under one of the paragraphs of schedule 3; (2) comply with the conditions attached to the schedule 3 exemption; and (3) ensure that the activity when it takes place is consistent with the objective of the human health and the health of the environment. It was, in our judgment, a matter for the jury to decide whether in the circumstances of the activity as they found them to be the appellants met these requirements. 27. In argument, we posed to Mr Harwood the question how, upon his construction of the legislation, the public and the environment would be protected from an activity which, while permitted, was carried on in an inappropriate location causing damage to health or the environment. Mr Harwood repeated his argument that section 33(1) (c) would be the appropriate charge. However, it seems to this court that there is at least a respectable argument that the prohibition upon treating, keeping or disposing of controlled waste “ in a manner likely to cause pollution” etc. is not wide enough to embrace performance of the permitted activity in a completely inappropriate location rather than the method used to perform it. Whether or not this is the correct analysis, it seems to us plain that the primary purpose of section 33(1) (c) is to catch the offender who is abusing his waste management licence by causing pollution or harm to health. A person who possesses a waste management licence is not subject to the regulation 17(4) requirement to carry out the activity consistently with the objective. Section 33(1) (c) is the provision which imposes obligations on the holder of a licence similar to those which are imposed upon the operator with an exemption under section 33(3) and regulation 17. Mr Harwood’s argument requires, in our view, a strained interpretation of regulation 17(4) which its language does not reasonably bear. We accept Mr Birch’s argument that the judge was right to rule as she did and to direct the jury upon the requirements of regulation 17(4). 28. The appellants argue that the judge should have directed the jury that as a matter of law they should judge whether the activity in which they were engaged was consistent with the scale and type of operations which were exempted. Since, Mr Harwood argues, the operations exempted would be bound to have some impact on health or the environment the judge should have directed the jury not to make the mistake of thinking that the operation had to be sanitised. We do not accept this criticism. First, we have not accepted that paragraph 17(1) was satisfied solely by the grant of an exemption. These were cumulative requirements. Secondly, the test was risk of endangerment of health or harm to the environment which were common terms requiring no additional explanation. 28. During the course of Mr Harwood’s cross examination, Mr Ngoka expressed his personal opinion that the appellants did not qualify for the paragraph 13 and paragraph 24 exemptions because the site was within an air quality management zone and for that reason he thought that an exemption would not be registered. It was also his understanding that if an exemption was sought a waste assessment would be required and, to his knowledge, none had ever been carried out. He had been informed by the Environment Agency, he said, that the site was unlikely to qualify. Mr Harwood argues that all this information was irrelevant because the prosecution accepted that the exemptions did apply to the processes used on site. We agree. We wonder why Mr Harwood did not object to this evidence when it was given. Mr Harwood appears to have encouraged Mr Ngoka’s answers by challenging his opinion (Vol III transcript, page 96 B). However, we are not persuaded that the evidence had any meaningful effect upon the fairness of the proceedings. The judge gave the jury explicit directions of law which required them to be sure that the operation in which the appellants were engaged breached the requirements of paragraph 4(1)(a), schedule 4. In other words the judge’s directions were framed upon the assumption that the exemptions applied. Her oral directions were repeated in writing and handed to the jury just before they retired. There is no danger that the jury was misled into substituting Mr Ngoka’s opinion for the judge’s directions of law. Ground 2 – The indictment period 29. It was submitted that it was unfair to permit the indictment to plead a course of conduct when, as originally framed, it relied upon 32 offences committed on 8 separate days. At a plea and case management hearing conducted on 11 August 2008, a year before the trial, HH Judge Bing permitted the indictment to be amended in accordance with rule 14.2(2) Criminal Procedure Rules. The prosecution proceeded to serve additional evidence to support its case relying upon 21 separate dates during the indictment period. Complaint is made that additional days were being added up to the month before the trial. 30. Mr Harwood argues that it would have been difficult for the jury to assimilate all the information they received. We do not see why that might be so. The trial took just over a week. The defence case was that no disposal of waste took place at the site. The overwhelming evidence was that it did. We agree that not all the photographs were of sufficient quality to support the oral evidence given by the residents as to the deposit of waste, and the burning and crushing of waste, but their evidence was emphatic as to the use being made of the site over a period of time and the effect which its operations had upon their health and comfort. The defence case was that those witnesses were lying or grossly mistaken. The jury decided that they were telling the truth. No particular prejudice is relied upon by Mr Harwood and we do not consider that there was any. Ground 3 – Submission of no case to answer 31. There was, it is argued, no evidence at the close of the prosecution case or at the close of all the evidence to support the prosecution assertion that the nature of the operations at the site deprived the appellants of the benefit of the exemptions. It was accepted that the crusher was used on site but it was the appellants’ case that it was used to crush material produced by demolition of buildings already on the site. One could not tell, as Mr Ngoka conceded, from the mere fact that the crusher was producing dust, and fire was producing smoke, that the material being processed had been imported to the site. Mr Harwood submitted that the prosecution adduced no evidence to the effect that material was being imported to the site from elsewhere (save by Bedrock) or that it was imported material which when processed caused nuisance. There was no evidence which could have contradicted the defence case. We disagree. The jury was entitled to apply common sense when deciding upon those inferences of which they could be sure. There was evidence, photographic and oral, that the volume of material was substantially greater at the end of the indictment period than it was when the buildings were originally demolished. Secondly, the witnesses were clear that they saw lorries, sometimes several a day, arriving at the site with waste products which were unloaded on the site, that they saw large mechanical diggers moving waste material around the site, and that the concrete crusher was at times used for intensive periods. It was for the jury to decide whether they were sure of the answers to the third question posed for them by the learned judge (see paragraph 23 above). Ground 4 – Contamination of evidence 32. Before trial the prosecution provided the witnesses, Mr Downie and Ms Miller with a copy of the summary of the prosecution case. That had been done in a spirit of openness towards the complainants but the prosecution accepted at trial that it should not have happened. The decision we have to make is whether their foreknowledge had such an effect upon the fairness of the proceedings that the verdicts should be treated as unsafe. 33. The live residential witnesses were Mr Downie and his partner, Ms Camper, Ms Miller and Mr Armstrong. The position appears to be that in May 2007 the Council emailed Mr Downie and Ms Miller informing them of their plans to mount a prosecution and the evidence which it was hoped to obtain. That document was sent after each of them had made their first witness statements but before they provided their second witness statements. The judge mistakenly informed the jury that only Ms Miller’s witness statement was outstanding. These were witnesses who had made complaints to the Council. We see no objection to the prosecuting authority informing complainants what steps they are taking in the investigation and the prosecution provided that in so doing no attempt is made to influence the evidence those witnesses are able to provide. There is no evidence that this was the intention or the effect of the email a copy of which was provided to the defence. 34. At the commencement of proceedings in the magistrates court the Council produced a copy of the case summary. It had been shown to Mr Downie in April 2008 and he had corrected some minor errors in it. At some time after seeing the case summary Mr Downie and Ms Camper made further witness statements in which they referred to additional dates upon which relevant incidents had occurred. Mr Harwood objects that the case summary referred to the material being deposited at the site as waste. But it had, as we understand it, always been the evidence of the residents that material was being brought to the site and treated. The case summary was prepared from the evidence which the residents were providing. These matters were raised in cross examination by Mr Harwood. The judge in her summing up referred to the impropriety of showing the case summary to the witnesses and reminded them of Mr Harwood’s suggestion that the credibility of the evidence of these witnesses was affected. The judge told the jury that it was for them to assess whether the evidence was undermined and, if so, to what extent. Mr Harwood submits that the judge should have gone further and explained how the risk of contamination may have materialised. The difficulty with that submission was that Mr Harwood was hard-pressed to suggest in what respects a document based on the witness’ evidence may have contaminated that evidence. These two people lived together and they kept a significant photographic record of the complaints they were making. It seems to this court that the danger of significant contamination from sight of the case summary was negligible. Ground 5 – Excessive and improper intervention by the trial judge 35. Mr. Harwood argues that the trial judge intervened during the cross-examination of prosecution witnesses so as to support their evidence and questioned Mr. O’Grady and his wife (who was called as a defence witness) in a way that amounted to cross-examination of them. His submission is that in consequence Mr. O’Grady did not have a fair trial. 36. There is a growing body of case law in relation to judicial intervention and its possible effect on the fairness of the trial. The approach to appeals raising this issue is set out in the judgment of Lord Justice Lawton in Hulusi and Purvis (1974) 58 Cr.App.R. 378 at p.382 where (quoting the words of Lord Parker CJ in the unreported case of Hamilton) he said: “Interventions to clear up ambiguities, interventions to enable the judge to make certain that he is making an accurate note, are of course perfectly justified. But the interventions which give rise to a quashing of a conviction are really threefold; those which invite the jury to disbelieve the evidence for the defence which is put to the jury in such strong terms that it cannot be cured by the common formula that the facts are for the jury and you, the members of the jury, must disregard anything that I, the judge, may have said with which you disagree. The second ground giving rise to a quashing of a conviction is where the interventions have made it really impossible for counsel for the defence to do his or her duty in properly presenting the defence, and thirdly, cases where the interventions have had the effect of preventing the prisoner himself from doing himself justice and telling the story in his own way.” 37. The recent authorities on this topic are helpfully discussed and analysed in Zarazadeh [2011] EWCA Crim 271 . For the purposes of this judgment it is not necessary to rehearse and repeat that discussion and analysis. As is properly identified by Mr. Harwood the essential issue is whether the judge acted in such a way as to prevent the appellant having a fair trial. It should be observed that it is the duty of a trial judge in a criminal case to ensure that the jury receive proper elucidation of evidence that is called before them. That will involve from time to time the judge identifying some lacuna in the evidence and inviting a witness to supply the missing information or the parties in the case to make appropriate enquiries. If a trial judge does no more than take an accurate note of the evidence adduced irrespective of obvious issues arising from the evidence, he or she in many cases will not be fulfilling his or her duty to the jury. It is the experience of most trial judges that, where the parties fail to deal with an issue raised in the evidence, the jury often will ask a question or questions seeking to elucidate that issue. Where the jury’s questions come in the course of the evidence, they can be addressed. Not infrequently they will raise matters that have to be investigated by the parties and which lead to the calling of further evidence. Where the jury’s questions come after the close of the evidence and/or during their retirement, the judge is left in the unfortunate position of telling the jury that their questions cannot be answered – however relevant or significant they may be. A judge who anticipates such questions and raises them for himself or herself is not descending into the arena so as to affect the fairness of the trial. Rather, he or she is undertaking the proper task of assisting the jury to reach a proper verdict. 38. In this case there was a particular example of the trial judge taking proper steps to ensure that the jury had the materials available to them to reach a verdict on the basis of sound evidence. The primary issue in the case was the extent to which steps had been taken at the site occupied by the appellant to avoid environmental pollution from his activities at the site. His case was that various steps had been taken, those steps involving different types of equipment. The jury had a large bundle of photographs of the site taken on various dates in the indictment period. Most if not all of the photographs had been taken by witnesses who lived near to the site on various dates during 2007. They were taken in order to show the activities of lorries at or near the site but inevitably they depicted the area of the site in general. They also had photographs taken at some later date (but prior to the trial) by the appellant’s solicitors for use in the proceedings. Until the judge intervened (in a manner now complained of by the appellant – see below for the detail of the complaint) neither side had addressed the question of whether the equipment referred to by the appellant could be seen on the photographs and, if not, why not. Had the judge not done so, the jury may have asked the relevant questions – but too late for any proper answer to be given. Alternatively, the jury may have simply looked at the photographs themselves, decided (rightly or wrongly) that no equipment was visible and concluded that the appellant was telling lies about a vital issue. Had the jury done that, the appellant would be entitled to question the fairness of the process. The judge’s intervention in fact served to ensure that the issue was dealt with properly and fairly. Whether it was to the appellant’s eventual factual advantage is another matter but that is not the relevant question. 39. Mr. Harwood’s submissions in relation to intervention by the trial judge in this case fall into two categories. First, he submits that the judge intervened in the course of the evidence of prosecution witnesses so as to support those witnesses and thereby to support the prosecution case over that of the appellant. Second, he argues that both the appellant and the appellant’s wife (who was called as part of his case) were cross-examined by the judge in such a way as to leave the jury with the clear impression that she did not accept the evidence of the appellant and his witness. 40. In relation to his submission in respect of the prosecution witnesses Mr. Harwood provided the Court with a detailed schedule headed “Substantive interruptions and questions by the Judge”. This schedule identified each and every time that the judge said anything at all including those occasions where she simply asked the witness to repeat something because she had not heard it. A total of 56 comments were identified over the course of more than two and half days of evidence. On a pre-reading of the transcripts of the evidence we were able to categorise very many of the “interruptions and questions” set out in the schedule as being no more than legitimate attempts to clarify the evidence or to curtail repetitive cross-examination. Therefore, we invited Mr. Harwood to identify those interruptions about which he made particular complaint and which he said rendered the trial unfair. Mr. Harwood chose to point to two specific examples. We are able to proceed on the basis that, if those examples do not demonstrate the unfairness on which he relies, none of the other interruptions and questions can give rise to any proper criticism. 41. Both examples relied on by Mr. Harwood came during the evidence of Mr. Ngoka. Mr. Ngoka gave evidence over the course of two days. He was cross-examined for at least a day. There came a point at which he was cross-examined about a lorry that had been seen on a particular day entering the appellant’s site, the lorry apparently being operated by a company named Bedrock. One of the documents in the case was a conveyance note relating to that lorry’s load on that day. The prosecution case was that the lorry delivered waste to the site. The appellant’s case was that it did not do so albeit that he did not appear to have a positive case to put as to the nature of the load. The conveyance note gave no proper detail of the nature of the load. The only entry on the note said that the load was “H/A”. Mr. Ngoka was cross-examined at some length as to the possible meaning of this abbreviation. It is apparent from a comment made by Mr. Harwood in the course of his cross-examination that he did not anticipate the attendance of any witness from Bedrock, namely a person who could explain the entry. Eventually (at p.113D) Mr. Harwood concluded this part of his cross-examination by putting to the witness (not for the first time) that the document did not identify what had been carried by the relevant lorry. Mr. Ngoka agreed that it did not but observed that there were photographs of the lorry concerned. At this point the judge made the intervention of which complaint is made. She asked if the court had the photographs. The witness confirmed that the photographs were within the jury’s bundle and he identified the page numbers in the bundle. The judge and the jury turned up the relevant photograph. As everyone in court looked at the photograph, the judge observed “I am no expert but that looks like construction waste to me”, followed immediately by the observation that she was not giving evidence. Taken in isolation it plainly is arguable that a judge should not offer an opinion on an issue of fact which is to be part of the jury’s decision making process. However, the observation made has to be put into context. It came as the judge sensibly and helpfully elucidated the evidence that had emerged from a protracted cross-examination by reference to the most useful source of evidence in the case i.e. the photographs. As she made the observation the jury were looking at the photographs. They were well able to determine whether the judge’s impression was accurate and the judge made it plain as soon as she had said what she did that she was not giving evidence. Having looked at the photograph ourselves it is difficult to see that the material in the lorry was anything but waste. Insofar as the judge said something she should not have done, any prejudice to the appellant was vanishingly small. 42. The second example relied on occurred shortly after the first. On this occasion Mr. Harwood had directed the witness’s attention to another photograph in order to make a point about a concrete crusher on the site. That led to questions about a lorry shown in the photograph, the witness saying that the lorry was carrying waste. The judge asked Mr. Harwood if he had a positive case to put about the load on that lorry. Mr. Harwood said that he did not but suggested (apparently from simply looking himself at the photograph) that the load “looks like some sort of soil”. The witness initially appeared to agree with that proposition. Rather than leaving the point, Mr. Harwood asked further questions about the possibility of the load being soil. The result was that the witness, having looked more closely at the photograph, said that the load was waste. A brief and somewhat fruitless exchange between the witness and Mr. Harwood about whether anyone could be sure that the load was waste was interrupted by the judge who observed “it doesn’t look just like pure soil does it? It’s obviously got bits and pieces in there.” The witness responded by saying that the load had “huge lumps in it” (which the photograph showed quite plainly) and based on that he could not say that the load was pure soil. As with the previous intervention complained of, it has to be put into context. The judge was talking about a photograph that the jury had and which quite clearly showed the features to which she referred. Her intervention served to curtail cross-examination that was becoming repetitive and which had largely ignored the material the jury had available to them. It could be argued that the judge could have made the same point in a different way without offering any personal view as to the nature of the load. That she did it in the way she did does not begin to make her intervention unfair. 43. Mr. Harwood’s complaints in relation to the conduct of the judge during the defence case do not relate to the examination in chief or the cross examination of the appellant. Rather, he argues that the judge intervened during re-examination and then asked questions of the appellant herself which he described in the course of argument before us as “raising doubts and fishing around in a challenging manner”. He submits that the judge’s conduct during the closing stages of the appellant’s evidence fell foul of the principles set out in Hulusi . 44. In relation to the appellant’s re-examination the only matter relied on in the course of argument was a question by the judge as to whether a PG9 notice (some kind of notice about a defect in a lorry) about which the appellant gave some evidence was immediate or delayed. This was said to be irrelevant – which it may have been but it arose from evidence the appellant had chosen to give – and prejudicial – which plainly it was not. The evidence as to the type of notice was of no consequence at all. We were told that the judge has some expertise in transport licensing law which doubtless explains why she sought clarification. The clarification probably was unnecessary but it did not harm the appellant’s case and it did not prevent him from being able to present his case properly. 45. At the conclusion of Mr. Harwood’s re-examination the judge then asked a number of questions. She spent about 15 minutes doing so. The first topic she dealt with related to how the appellant was able to park the vehicles he operated under his haulage licence at the site in question. The available space at the site was of relevance since the prosecution case was that over a period of time there was a diminishing amount of space available at the site due to increasing amounts of waste being delivered whereas the appellant was saying that no waste was delivered to the site. These were legitimate questions and she presumably was able to raise them in the context of the appellant’s licence conditions because of the expertise to which we already have made reference. The appellant answered the questions (which were put in a neutral fashion) without any adverse comment from the judge. The second issue with which the judge dealt was the refusal of the appellant to answer a particular question in the course of his interview. It does not appear that this issue had been raised before. It was essential that the judge did so in order to deal with any possible adverse inference point that might be raised. Again the judge posed the questions in a neutral fashion and noted the replies. The third matter the judge raised was a delivery of tarmac about which the appellant had been cross-examined briefly by the prosecution. The judge sought clarification and elucidation of the evidence he had given in cross-examination by reference to the photographs. She was quite entitled to do so in order to ensure that the jury were provided with the full picture. The final issue raised by the judge was that about which Mr. Harwood makes most complaint. She referred to the evidence the appellant had given about the equipment he had at the site in order to deal with any environmental side effects of his activities. This went to the heart of the case the jury had to consider. She asked whether any of this equipment appeared in any photograph within the jury bundle. This had not been raised by counsel but it was a matter which the jury was bound to consider. The course taken by the judge not only was not open to any proper objection but also was prudent. The manner in which the questions were put was said to be objectionable. We do not consider that it was. The judge initially asked whether there were any photographs of particular types of equipment to which the appellant replied there were not. In relation to a tractor equipped with a sprinkler, she observed “there is no evidence of that before us at the moment”. That was an entirely accurate observation with which the appellant agreed. It was argued before us that this passage of questioning was carried out in such a manner as to lead the jury to disbelieve the appellant’s case. We see nothing wrong in the manner of the questioning. It did not begin to meet the test identified in Hulusi. 46. Further matters were canvassed with the appellant by Mr. Harwood and the prosecution. The appellant referred to the use of sheets on his lorries. Again this was not apparent on any photograph so the judge asked the appellant about that briefly, together with some questions about whether the water supply apparently needed for suppressing dust was visible on the photographs. These were in effect a continuation of the questions posed earlier and were wholly justified for the reasons given above. 47. The outcome of the judge’s questions was that the appellant overnight caused further photographs to be taken. He was not recalled to give evidence to deal with them. Rather, his wife, who was to give evidence about other matters, produced the photographs. They showed various pieces of equipment which it was said had been used on the site at the time of the alleged offences. Mr. Harwood submits that his examination in chief was effectively taken over by the judge. We find that it was not. The judge asked questions to assist with the production of the photographs. She did not prevent the flow of Mr. Harwood’s examination. The appellant’s case as being presented via his wife was put perfectly adequately. 48. At the conclusion of the evidence of Mrs. O’Grady, the judge asked questions about two matters. She did so in the context of the evidence given by the witness, namely that Mrs. O’Grady was responsible for the company’s accounts and had produced the photographs. In relation to the witness’s financial responsibilities the judge asked about the economics of the site occupied by the appellant i.e. it was rented at a cost of £3,000 per month when it was full of rubble which had to be disposed of at some significant cost. These were matters about which the jury probably were or certainly would have been concerned after argument in final speeches. Given the stage at which this witness gave evidence i.e. at the very conclusion of the evidence in the case, it was incumbent on the judge to deal with them. In relation to the photographs produced by the witness, it now was possible to see in pictorial form the equipment said to have been used at the site. The judge asked the witness to clarify that the equipment in the recent photographs was the equipment used over the indictment period. She then said “We have lots and lots of photographs …. Not one of them has a picture of that piece of equipment in it”. That observation was agreed by the witness to be wholly accurate. Mr. Harwood argues that this intervention by the judge was impermissible cross-examination. We agree that the question is interrogatory in nature and it would have been better if it had not been. If, however, the judge had asked the question “is that piece of equipment in any of our photographs”, Mr. Harwood presumably would have taken no point. The answer to the question would have been that the equipment was not in the photographs. The effect, therefore, would have been identical. We not consider that the fairness of the trial was affected. 49. At the conclusion of Mrs. O’Grady’s evidence, Mr. Harwood argued that the issue of the environmental effects of the appellant’s activity had arisen late in the day which is why the photographs of the equipment only had been produced at that point. The judge said this: …I am not criticising (the late production of photographs). The point I am making is that there are (photographs) that show the site exhaustively and (the pieces of equipment) do not appear to be in there. That is the point I was making. It is for the jury to decide. They can look at the photographs.” That made it perfectly plain to the jury (insofar as it needed to be made plain) that the issue of what could be seen on the photographs was a matter for them as was any inference to be drawn from their findings about the photographs. 50. Mr. Harwood concluded his argument to us on this ground of appeal by submitting that the various interventions upon which he relied amounted to a “continuum” such that the overall effect was to render the appellant’s trial unfair. Since none of the matters upon which he relies gave rise to any unfairness, the fact that there was a number of them adds nothing. We dismiss this ground of appeal. Application to add an additional ground - fresh evidence 51. The appellants sought leave to call the evidence of Mr Seamus Gannon in the following circumstances. As we have said, on 21 June 2007, a resident, Mr Sam Armstrong, took photographs of a lorry owned by a company called Bedrock which delivered a full load of concrete to the O’Grady site and tipped it. These were photographs 101-103 in the jury bundle. The photographs were later handed to Mr Ngoka. Mr Ngoka contacted the company and was provided with a copy of the conveyance note for the load. Among the witness statements gathered to support the prosecution was one purporting to be the statement of Sean Gannon, the proprietor of Bedrock. The statement which is dated 14 September 2007 was, according to Mr Ngoka written on statement paper left with Mr Gannon and later delivered to Tower Hamlets. It reads: “On the morning of 21 June 2007 we had a phone call from a company called East London haulage asking us if we would do a haulage job for them as there vehicles where otherwise engaged [sic]. We do not know much about East London Haulage, only that they are near our own location. We explained to them we only do our own work and do not involve ourselves with haulage for other people as we recycle all our materials and it’s not really viable for our company to engage in haulage alone. A gentleman who I think his name is Paul came on the line and said as a one-off would we help him out as we are neighbours. We where [sic] talked into helping out and was asked to pick up a load of concrete from a job of theres [sic] in Haggerston, and took it back to there [sic] yard in Wick Lane. When Mr Ngoka visited our company and told us ELH was trading illegally and had no licence for there [sic] activities we where [sic] furious as we had been drawn into a situation we are totally against. As Bedrock prides itself with the way it conducts its affairs and runs its business and complies with all legal obligations. We have since spoken to the representative of ELH and told him our thoughts regarding companies like this that give everyone in this industry a bad name. We do not want any further discussion with this company as our legal representatives are pursuing a claim against company (ELH). Since this incident we have moved to a new location in Canning Town.” The statement is signed “S. Gannon”. 52. On 1 August 2009 the Crown Court received a letter in response to a witness summons issued for Mr Gannon’s attendance. It read: “I have received this summons on Sat 1 st August. It is too short notice for me to attend court as I am on holiday. I have no knowledge whatsoever of this incident and I did not sign the statement you enclose. Therefore I can be of no assistance to you. Our company ceased trading 12 months ago and I am now retired.” The letter was signed “S Gannon”. The handwriting of the signature was different from that used to write the signature in the statement. Mr Gannon did not attend the Crown Court and the prosecution did not seek to adduce his evidence. 53. Notwithstanding Mr Gannon’s absence from Court the prosecution continued to rely upon the photographic record of the delivery, Mr Armstrong’s evidence, and Mr Ngoka’s enquiries with the company which produced the copy conveyance note. Mr O’Grady was asked about photographs 101-103 in evidence. He said he had known Mr Gannon for 10-15 years. He was asked to look at the conveyance note at exhibit page 10. He had never heard of Haggerstone, the collection point. In cross examination Mr O’Grady asserted that was a conspiracy between Mr Ngoka and Mr Gannon from Bedrock to arrange this delivery for the purpose of producing false evidence that loads of waste were being delivered to his site. 54. On 6 May 2011 the appellants submitted Form W to the Court seeking to rely on the fresh evidence of Seamus Gannon set out in a witness statement dated 14 April 2011. That witness statement asserts that when Mr Ngoka visited him making inquiries he could not answer the question whether his lorry had supplied concrete on the occasion in question. He asserts that Mr Ngoka was aggressive and threatened to put Mr O’Grady out of business. He says he did not make a witness statement or sign any document. He received a document in the post purporting to be his statement and was very confused by it. He had never heard of East London Haulage. 55. Mr Gannon’s April 2011 version of his conversation is denied by both Mr Ngoka and by Deshni Nadar who accompanied him during the visit. In a letter dated 3 July 2007 to Mr Ngoka at Tower Hamlets Mr Gannon enclosed a copy of the conveyance note dated 21 June 2007. In the typewritten letter the author, who signed himself “S Gannon”, wrote: “With reference to your enquiry regarding vehicle LX54 DYD on the 21 st June 2007. The above vehicle is owned by this company and on the day your enquiry relates to and the photographic details you have provided this vehicle was on haulage work for E.L.H. We picked up rubble from one there jobs and delivered it to there yard in Wick Lane. I have enclosed a copy of our waste transfer note for your inspection. I have mentioned your enquiry to the site office in Wick Lane but they are not being very co-operative...” [italics added] We have observed that the curious spelling mistake for “their” is common to both the letter and the disputed witness statement of 14 September 2007. We note that in his witness statement of 14 April 2011 Mr Gannon makes no reference to the copy conveyance note which his firm sent to Tower Hamlets in July 2007. 56. Our suspicions were aroused by the fresh evidence which the appellants now seek to adduce. Mr Harwood seeks to argue that Mr Gannon’s evidence would serve to support Mr O’Grady’s assertion at trial to the effect that Mr Ngoka sought to pervert the course of justice; that he did so not by suborning Mr Gannon but by forging his witness statement. We rejected the appellants’ application to admit this evidence under section 23 Criminal Appeal Act 1968 . The Notes for Guidance accompanying Form W make clear the applicant’s obligation to support the application with witness statements “from all involved in the obtaining of new evidence to provide the Court with the circumstances surrounding the obtaining of the new evidence which are potentially highly relevant to its credibility (see R v Gogana, The Times July 12, 1999, CA )”. We should have thought that the fact, as Mr O’Grady asserted in evidence at his trial, that he had known Mr Gannon for many years would have demonstrated the need for the clearest possible explanation of the circumstances in which this evidence came to light and the reason why it became available only on 14 April 2011. Not only have no such circumstances been established by the production of any Gogana statements but it was quite clear that Mr Harwood had no instructions on the subject. We were not satisfied that the evidence submitted was capable of belief. 57. There was disclosed to the appellants by Tower Hamlets an internal email written by Deshni Nadar in which she supported Mr Ngoka’s recollection of their visit to Mr Gannon’s office. She added that she did not agree with certain of Mr Ngoka’s replies in evidence dealing with disclosure. Mr Harwood sought to raise this difference of opinion in an attempt to support his argument that Mr Ngoka had some dishonest motive of his own for pursuing the appellants. Had the email been disclosed at trial he would have been able to cross examine Mr Ngoka to effect. It seems to this court that the subject of disagreement between Ms Nadar and Mr Ngoka was of peripheral relevance to the issues before the jury and, in any event, their difference of opinion fails to raise a germ of a case that Mr Ngoka was corrupt. We rejected the application to raise a new ground of appeal. 58. In the opinion of each member of the Court these convictions were safe and the appeals against conviction are dismissed. The costs application of Mr O’Grady 59. On 16 April 2010 Mr O’Grady was ordered to pay the costs of the prosecution in the sum of £27,665.00. He subsequently lodged an application for an extension of time of about four months and for leave to appeal against the costs order. Those applications have been referred to the full court by the Registrar. 60. On 21 September 2009 Mr O’Grady was fined a total of £12,000.00. No separate penalty was imposed in relation to the company O’Grady, Plant and Haulage Limited. Prior to passing sentence the judge had been informed of the means of the company and Mr O’Grady. The company’s situation was described as “tenuous”. The outgoings of Mr O’Grady and his wife were put at a sum in excess of their income, but it was accepted before the judge that Mr O’Grady had personal investments valued at about £50,000.00 which were unencumbered and which would be available to him. Having considered the circumstances of the offences together with Mr O’Grady’s financial position the judge imposed fines in the total sum of £12,000.00. 61. It was anticipated at that stage that confiscation proceedings would take place in February 2010. In October 2009 the prosecutor drew the attention of Mr O’Grady and the judge to the provisions of section 13(2) of the Proceeds of Crime Act 2002 . This requires the court to take account of the confiscation order before imposing a fine. On 10 November 2009 the case was listed before the trial judge. She stated that had she been referred to the relevant sections of the Proceeds of Crime Act she would not have sentenced the applicant to a fine. She accordingly rescinded the fines imposed on Mr O’Grady and substituted a conditional discharge. 62. It was still contemplated that confiscation proceedings would take place in February 2010. However, Mr O’Grady then appealed to the Court of Appeal Criminal Division for leave to appeal against the conditional discharge. The Registrar subsequently informed him that in the light of R v Clarke [2009] EWCA Crim 1074 the Crown was precluded from proceeding with the confiscation proceedings and he withdrew his appeal. There was a further hearing before the judge on 5 February 2010 before as a result of which the confiscation proceedings were discontinued. On the same occasion restraint orders which had been obtained against Mr O’Grady and his wife on 21 August 2009 were discharged. On this occasion the Crown indicated that it was seeking costs against Mr O’Grady and the hearing was adjourned. Thus, the matter came back before the court on 16 April 2010 when the court made an order for costs against Mr O’Grady in the sum of £27,665.00. 63. The grounds of appeal do not challenge the quantification or reasonableness of the sum of costs sought. The submission is that the order made was excessive in the light of the fact that the judge had considered the applicant’s ability to pay for the purposes of a fine and had wrongly gone behind that assessment in fixing a higher figure in relation to the costs order. In effect it was being argued that the £12,000.00 imposed by way of fine should define and circumscribe the costs figure. 64. We do not consider that there is merit in this argument. It is clear from the transcript of the August hearing that the judge identified that there was £50,000.00 in free assets available to Mr O’Grady to pay a fine and costs. The availability of that sum was not disputed. It is also clear from the judge’s sentencing remarks that she contemplated making an order in relation to costs in addition to the fine at the conclusion of the confiscation proceedings. Because of the way in which events proceeded, Mr O’Grady received an un-covenanted windfall in that the £12,000.00 fine imposed was subsequently withdrawn in favour of a conditional discharge. So the position was that when the judge came to deal with the Crown’s application for costs in April 2010, the £50,000.00 available to Mr O’Grady had not been depleted by any payment of the £12,000.00 fine. 65. At the hearing in April 2010 Mr Harwood sought to persuade the judge that she was bound by the assessment she had made in relation to the fine. The judge rejected that submission which has in effect been renewed before us today. The judge indicated that she had fixed the level of the fine, not only by reference to a consideration of Mr O’Grady’s finances, but also by reference to authorities on the appropriate level of financial penalty in this class of case. The judge made clear in terms that the amount of the fine had not been reduced because she thought Mr O’Grady did not have the means to pay; she had been satisfied that he had investments available to him which could satisfy both fines and costs. 66. The essential question for us is whether the judge fell into error and had bound herself in any future assessment of costs by the way in which she dealt with the imposition of the fine. We are entirely satisfied that that is not the case. The arguments which Mr Harwood unsuccessfully raised before the judge are not in our judgment enhanced by their repetition before us. It is clear to us that the judge was not binding herself in any way by reason of the fines assessment exercise as to how she would deal with the question of costs. It is clear to us that there were sufficient assets available for the costs order to be met. The order which the judge made was entirely within the exercise of the discretion granted to her. In those circumstances there is no tenable argument available to the applicant. Accordingly we refuse the application. 67. As far as the application for an extension of time is concerned, we refuse that too since there is no merit in the application. The application of Mrs O’Grady 68. On 5 February 2010, after the confiscation proceedings had been discontinued against Mr O’Grady, the restraint order which had been made in August 2009 on the application of the London Borough of Tower Hamlets against Mr and Mrs O’Grady was discharged. On 16 April 2010 the London Borough of Tower Hamlets was ordered to pay to Mrs O’Grady the sum of £1,573.38. This represented twenty percent of what was said to be her costs in the restraint order proceedings. Mrs O’Grady is dissatisfied and seeks the full costs. 69. Mrs O’Grady was company secretary of O’Grady, Plant and Haulage Limited but had not been a Defendant in the trial which involved her husband and that company. The restraint order was properly made shortly after the conclusion of the trial in contemplation of the confiscation proceedings which were to involve Mr O’Grady. The property restrained comprised the assets of Mr O’Grady, whether solely or jointly owned, in particular a dwelling house in Hertfordshire and a joint bank account with Lloyds TSB Bank Plc. Both the bank account and the dwelling house were property jointly owned by Mr and Mrs O’Grady, so she was made a party to the order. There was no separate restraint on any asset in which Mrs O’Grady had an interest. 70. Mrs O’Grady was represented by Mr Harwood, who also represented Mr O’Grady at five hearings when the restraint order was dealt with. All those hearings would have been necessary whether or not Mrs O’Grady was involved. 71. The hearings involved the following matters. On 2 September 2009 an application to amend the restraint order was agreed. The hearing lasted a few minutes. There were sentencing hearings on 11 and 21 September 2009. On the latter date a further minor amendment to the restraint order was agreed. On 5 February 2010 the restraint order was discharged upon the discontinuation of the confiscation order. On 16 April 2010 the judge dealt with costs matters including Mrs O’Grady’s application for costs. 72. Mr O’Grady had the benefit of legal aid. Mrs O’Grady privately instructed the solicitors who were acting for her husband. Mrs O’Grady claimed over £7,500.00. She argued that since the restraint order was made jointly against herself and her husband, the solicitors were entitled to divide the time they had spent on the case on a 50/50 basis as between the two. So, if the application against Tower Hamlets was successful, they would be liable to Mrs O’Grady for half the work done by her and her husband’s legal advisors payable at private rates. 73. It was argued that the court could not limit the costs recoverable by one party to the extra work attributable to that party on the basis that all other costs would have been incurred by the other jointly represented party. The Crown resisted this application on the basis that in reality the work had been primarily done on behalf of Mr O’Grady and that any work required to be undertaken on behalf of Mrs O’Grady was de minimis . 74. After hearing rival submissions, the judge, without making a ruling, indicated that counsel should be discussing costs matters between themselves, both in relation to Mr O’Grady and Mrs O’Grady and sorting the matter out. The judge then adjourned for lunch having observed that she would be minded to make some allowance for Mrs O’Grady’s restraint order costs, but not to a great extent. She was minded to allow twenty percent of her costs, taking the view that since the parties were married and had joint living arrangements, the costs of Mr O’Grady’s restraint proceedings alone would have been virtually identical. All the work would have been done in any event in relation to Mr O’Grady. She said however that she was minded to allow some additional concession in relation to any extra work that might have been for Mrs O’Grady. She then indicated that the parties should discuss the matter. 75. The parties returned after the midday adjournment and Mr Harwood said “we have had discussions over lunch and there is a settled position”. He said “This is expressed on the basis of your honour’s indications and the views which your honour has expressed on the question…In the light of those indications I am not going to continue to argue the case all the way to the end of the judgment to the end of the day, but for the purposes of the matter going any further, the position is, Your Honour, on the basis of these indications. On that basis Your Honour…the council will pay to Mrs O’Grady a figure in respect of the costs of the restraint order proceedings £1,573.38.” 76. It appears to this court that what then took place was the award of an order for costs by consent without the matter having proceeded to a full ruling before the judge at all. Mr Harwood submits that the words he used preserved his position for the purposes of any appeal. If that was his intention he used the most opaque language in which to do so. We are, however, prepared to give him the benefit of the doubt. 77. In due course an application for leave to appeal was submitted by Mrs O’Grady, but the correct papers were not received in the Criminal Appeal Office until December 2010. Thus an application for an extension of time of approximately eight months is required. The Registrar has referred the application for leave to the full court. 78. It is clear to us that the restraint order was perfectly properly made on 21 August 2009 when the confiscation proceedings were contemplated. Thereafter, no step was taken by the O’Gradys’ advisors to discharge the confiscation and restraint orders notwithstanding the fact that, firstly, a fine and, then, a conditional discharge had been imposed on Mr O’Grady. It was the Crown, and then the Criminal Appeal Office respectively who drew the O’Gradys’ advisors attention to the issues, which meant that the confiscation order could not be proceeded with, and thus that the restraint order would also fall. 79. On this basis there would, it seems to us, have been a strong argument open to Tower Hamlets for greatly limiting, if not expunging, their liability to an order for costs in relation to the restraint order. However, that approach was not taken before the judge, nor indeed before us. 80. Under section 42(3) of the Proceeds of Crime Act 2002 an application to discharge a restraint order may be made to the Crown Court by any person affected by the order. Section 43(2) of the Act provides: “If an application is made under section 42(3) in relation to a restraint order…the following persons may appeal to the Court of Appeal in respect of the Crown Court’s decision on the application: (a) The person who applied for the order; (b) any person affected by the order.” 81. There is a potential difficulty about the jurisdiction of this court. It hinges on what is meant by “the Crown Court’s decision on the application” in section 43(2) . If that phrase encompasses consequential orders resulting from an application to discharge, such as costs, this court has jurisdiction. If on the other hand the phrase “decision on the application” is to be construed as relating solely to the application to discharge the restraint order, then it might be argued that there is no jurisdiction because the question of costs arises from a separate application which is not itself an application to discharge the restraint order. 82. Although we have not heard argument on this point, we tend to the view that the absence of confining language in section 43(2) means that the word “decision” should be interpreted on the broader basis. If so, there would be no question of lack of jurisdiction. 83. It is clear, however, that if there is merit in Mrs O’Grady’s complaint, then she should not be denied a remedy before the courts. If this court did not have jurisdiction we would have been prepared to reconstitute ourselves as a Divisional Court of the Queen’s Bench Division (having regard to the provisions of section 29(3) of the Senior Courts Act 1981 ), dispensed with necessary formalities and abridged time in order to hear this matter as a claim for Judicial Review. 84. Were it necessary definitively to decide the point of jurisdiction we would do so. However, it seems to us that whichever jurisdiction is the correct one, the test to be applied is essentially the same. We must consider whether the judge exercised her discretion in the matter wrongly or took into account irrelevant considerations or otherwise proceeded on an improper basis. 85. Criminal Practice Rule 61.19 shows that, inter alia , the court has a discretion as to whether costs are payable by one party to another and also as to the amount of those costs. The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but that the court may make a different order. In deciding what order to make about costs (if any), the court must have regard to all of the circumstances. 86. It is clear therefore that the judge had a wide discretion in deciding what the appropriate order should be. In our judgment there was no reason why the judge should have felt bound by the approach which was adopted by Mrs O’Grady in making her claim for costs. The judge was entitled to look to the realities of the position, which was that her husband was the primary focus, both of the confiscation proceedings and the restraint order, that the parties shared the same legal representative, that no significant identifiable additional work was done by reason of Mrs O’Grady being included as a party to the restraint order which covered jointly owned assets. 87. Assuming for the purposes of this application (a) that Mr Harwood had not unconditionally invited the judge to make the order and (b) that this court has jurisdiction, we do not consider that it has been demonstrated to us that there is any arguable case that the judge was in error in the exercise of her discretion. We do not think that there is an arguable case of the sort which should attract the grant of leave. In the absence of merit we therefore refuse to grant an extension of time and refuse the application for leave to appeal against the costs order made in favour of Mrs O’Grady. Accordingly, the order made by Her Honour Judge Beech will stand. Conclusion 88. For these reasons the appeals against conviction of the first and second appellants are dismissed. The second appellant’s application for leave to appeal against the order to make a contribution towards prosecution costs is refused. The application by Mrs O’Grady for an extension of time within which to seek leave to appeal against the costs order in her favour is refused.

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[2005] EWCA Crim 3500

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crown_court

No: 2005/05541/A9 Neutral Citation Number: [2005] EWCA Crim 3500 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Wednesday, 21 December 2005 B e f o r e: LORD JUSTICE KEENE MR JUSTICE FIELD MR JUSTICE LANGSTAFF - - - - - - - R E G I N A - v - FAROOQ MOHAMMED - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - MR R S GIOSERANO appe

No: 2005/05541/A9 Neutral Citation Number: [2005] EWCA Crim 3500 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Wednesday, 21 December 2005 B e f o r e: LORD JUSTICE KEENE MR JUSTICE FIELD MR JUSTICE LANGSTAFF - - - - - - - R E G I N A - v - FAROOQ MOHAMMED - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - MR R S GIOSERANO appeared on behalf of THE APPELLANT - - - - - - - J U D G M E N T Wednesday, 21 December 2005 LORD JUSTICE KEENE: I will ask Mr Justice Field to give the judgement of the court. MR JUSTICE FIELD: 1. On 29 July 2002, in the Crown Court at Leeds, before His Honour Judge MacGill, the appellant on re-arraignment pleaded guilty to robbery. Sentence was adjourned pending the trial of the appellant's co-accused, Fahim Azam and Amir Hussain. On 14 August 2003, also in the Crown Court at Leeds, before the same judge and a jury, the two co-accused were convicted of robbery. On the same date all three co-defendants were sentenced as follows: the appellant, to ten years' imprisonment; Fahim Azam, to fourteen years' imprisonment; and Amir Hussain, to fifteen years' imprisonment. The appellant and the two co-accused lodged applications for leave to appeal against sentence. Fahim Azam also lodged an application for leave to appeal against conviction. All applications were refused by the single judge and in each case were renewed before this court. On 28 May 2004, the appellant signed a Form A, abandoning his renewed application for leave to appeal against sentence. On 1 November 2004, the full court (Potter LJ, Tugendhat J and His Honour Judge Maddison) heard the renewed applications of the co-accused. The court dismissed Azam's renewed application for leave to appeal against conviction, but granted both co-accused leave to appeal against sentence. In each case the appeal was allowed and the sentences were reduced by two years, so that the sentence on Fahim Azam was twelve years' imprisonment, and on Amir Hussain, thirteen years. 2. On 16 February 2005, new solicitors wrote on behalf of the appellant to the Registrar of Criminal Appeals to the effect that the appellant now sought leave to have his notice of abandonment set aside as a nullity. This application was made in the light of the reduction in sentence received by the co-accused and the appellant's instructions that he had not been properly advised in respect of his renewed application. The waiver procedure was completed. 3. On 11 October 2005, the full court (Rix LJ, Bell J and Sir John Alliott) refused the application to set the notice of abandonment aside as a nullity. The court was of the view, however, that there would be injustice if the appellant, who had pleaded guilty, did not receive the same reduction as those who had contested the proceedings but had persevered with their renewed applications, and indicated that the matter should be brought to the attention of the Criminal Cases Review Commission. The Commission have now referred the appellant's sentence to this court. He appeals against sentence pursuant to that reference. 4. The facts of the robbery can be shortly stated. On 12 January 2002, the appellant and his co-accused robbed a Securicor van of over £350,000. Hussain, who was employed to drive the van, acted as an inside man, but attempted to portray himself as the victim of the robbery. Apart from this, it was not possible to determine the precise role of each of the accused. None of the money was ever recovered. 5. When passing sentence in the Crown Court, the judge considered the antecedents of each defendant and gave the appellant credit for his guilty plea. Aspects of Hussain's behaviour during his employment with Securicor showed that he had probed to see what he could get away with before planning the robbery with his co-accused. On the facts the judge thought that it was the appellant who entered the van and took the money. In the course of passing sentence the judge made it clear that he took into account the decision of R v Law [1998] 2 Cr App R(S) 365 in arriving at his starting point. 6. When the co-accused's appeal came before this court, this court took the view that R v Law did not indicate an appropriate starting point in this case because there a firearm had been used, whereas no firearm of any kind had been used in this robbery. Accordingly, this court accepted in the case of the co-accused that their sentences were too high and reduced them by two years. 7. On behalf of the appellant it is submitted that this court should take account of his age, his effective good character, the fact that there was no firearm used in the commission of the robbery, and the indication given by this court that the sentence was too long by two years. 8. We accede to these submissions. We are in particular affected by the indication by this court that will have given rise to an expectation that the sentence ought to be reduced by two years. Accordingly, we quash the original sentence and impose in its place a sentence of eight years' imprisonment. For these reasons and to this extent this appeal is allowed.

2005_12_21-670.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/3500/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/3500

ff5c287c6ab7fc4975a4060aa86f31cb4ba31b02c3de3f2077a2810f43cfb847

[2009] EWCA Crim 921

EWCA_Crim_921

2009-05-14

supreme_court

Neutral Citation Number: [2009] EWCA Crim 921 Case No: 2009/00415/A5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM His Honour Judge Orme T20067809 Royal Courts of Justice Strand, London, WC2A 2LL Date: 14/05/2009 Before: LORD JUSTICE HOOPER MR. JUSTICE LLOYD JONES and HIS HONOUR JUDGE JEREMY ROBERTS QC Between: REGINA Appellant - and - TREVOR NORMAN CLARKE Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2009] EWCA Crim 921 Case No: 2009/00415/A5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM His Honour Judge Orme T20067809 Royal Courts of Justice Strand, London, WC2A 2LL Date: 14/05/2009 Before: LORD JUSTICE HOOPER MR. JUSTICE LLOYD JONES and HIS HONOUR JUDGE JEREMY ROBERTS QC Between: REGINA Appellant - and - TREVOR NORMAN CLARKE Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. Andrew Fisher QC for the Appellant Mr. T. Green for the Respondent Hearing date: 28 th April 2009 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Lloyd Jones: 1. On 19 th August 2008 at the Crown Court at Birmingham the Appellant was convicted of causing death by dangerous driving. On the 19 th December 2008 he was sentenced by His Honour Judge Orme to three years imprisonment. He was disqualified from driving from life. The judge directed that, if the Appellant’s medical condition were to improve and were he deemed fit to drive, a driving licence could be applied for but a significant time must first pass and he must in any event take an extended driving test. 2. Shortly before 2.00 p.m. on 13 th April 2006 the Appellant was driving his Renault motor car in Birmingham when he suffered a hypoglycaemic attack. This caused him to drive in a most erratic fashion. Witnesses described his vehicle entering roundabouts at inappropriate times, lurching through traffic lights, revving unnecessarily, braking suddenly and swerving from lane to lane. One witness described the Appellant’s appearance: “I could see that his eyes were very glazed as he was just staring straight ahead of himself. His face was blank, expressionless. I thought he looked drunk or high on drugs.” After a distance of about two and a quarter miles the Appellant veered off the road and onto a footpath where two boys were walking, Daniel Shakespeare aged 14 and his stepbrother Cory Ciesielski who was 4 years of age. The Appellant’s vehicle collided with the boys. Cory Ciesielski was gravely injured and died two weeks later in hospital. 3. The Appellant suffered and still suffers from type 1 diabetes. Although after the collision he initially denied that he had suffered a hypoglycaemic attack, it was agreed by all parties at his trial that he had in fact suffered such an attack at the relevant time and that that was the cause of his totally erratic and uncontrolled driving. Furthermore it was accepted that his driving was dangerous. The central issue at trial appears to have been whether the Appellant was at some stage aware that he was suffering the onset of a hypoglycaemic attack and nevertheless continued to drive or whether his medical condition impaired his cognitive ability to the extent that he was not so aware. 4. The Appellant was 49 years of age at the date of the incident and 52 years of age by the time he came to be tried and sentenced. He lives alone. He has previous convictions in the Magistrates’ Court for shoplifting in 1986 and for driving whilst disqualified in 1991. At his trial Professor Livesley, who gave expert evidence of behalf of the prosecution, said that he was 100% certain that the Appellant was aware that he was suffering from hypoglycaemia and that he could have prevented the accident by stopping and by eating or taking glucose tablets. Two experts called on behalf of the defence, Professor Barnett and Professor Marks, both gave evidence that the Appellant was suffering from hypoglycaemic unawareness, a condition from which up to 40% of all long term type 1 diabetics suffer at some time. In their opinion, Mr. Clarke managed his condition in an exemplary manner and took all proper and reasonable precautions. They stated that in their view Mr. Clarke’s driving was ‘automatic behaviour’ while he was suffering a hypoglycaemic attack and that it was more likely than not that he was unaware of the onset of the attack. In their view the most likely explanation for the attack was a sudden, very rapid drop in Mr. Clarke’s blood sugar level of which he was unlikely to have been aware, particularly since he had tested his blood sugar level and eaten appropriately only an hour or so prior to the collision, in accordance to the DVLA guidelines. It is significant that Professor Barnett gave evidence of a consultation with the Appellant on 8 th March 2007 at which the Appellant’s speech was slurred, a possible sign of hypoglycaemia. The Appellant did not think that his blood sugar level was low but a blood test established that it was. Professor Barnett commented that this episode was highly suggestive of hypoglycaemia unawareness. 5. The Appellant was convicted by the jury of causing death by dangerous driving. 6. The sentencing hearing was delayed at the request of the defence in order to enable them to obtain further reports on the Appellant. At the hearing on 19 th December 2008 there was medical evidence before the court that the Appellant had been diagnosed with diabetes in 1978 and suffered from type 1 diabetes. A medical report from Professor Barnett concluded that the Appellant would present serious management issues to the prison authorities, by reason of his medical condition, and that this would put him at serious risk of harm and even death. Professor Barnett also referred to the fact that it was proposed that the Appellant should undergo an islet cell transplant. It was Professor Barnett’s opinion that there was no possibility of his receiving this treatment if a custodial sentence were imposed due to the complexity of the procedure and the need for immuno-suppressant treatment and follow up. This would deny him the possibility of a cure for both his diabetes and hypoglycaemic unawareness. 7. Professor Barnett in his report of 18 th December 2008 also referred to a planned operation to remove part of the Appellant’s thyroid gland. He stated that if on biopsy this was found to be cancerous the Appellant may need further surgery and treatment which would require regular hospital attendance, perhaps for some time. 8. A pre-sentence report dated 26 th September 2008 noted that the case had been to trial twice, the jury having failed to agree on the first occasion. It was noted that the Appellant accepted full responsibility for causing the death. In the opinion of the author there was a low risk of reconviction. It was possible that the Appellant could put other people at risk if he were to suffer a sudden drop in his blood sugar levels if he were in a situation where he was driving or engaged in some hazardous activity. However it was to be noted that this was the first occasion that he had committed an offence which caused injury to anyone else. Repetition of such an offence was unlikely and he did not pose a significant risk of serious harm. Furthermore, there were major risks to his health should he go to prison, given the high level of care and management needed to control his diabetes. 9. In passing sentence the Judge observed: “…the management of your diabetic condition has been described by those who are responsible for your medical supervision as usually exemplary and good. You had taken, on the evidence that I heard, some precautions during the earlier part of the day to prevent any episode linked to your diabetes affecting your driving. However, there came a time, on the basis of the evidence that we heard and the jury’s verdict, when you should have been aware of your deteriorating condition, of the likelihood of an imminent hypoglycaemic attack, hypoglycaemic unawareness, and indeed that was, on the jury’s finding and on the evidence we heard, either before you began driving at a particular time or during the course of your driving. The jury concluded that the awareness that you had was such as it should have caused you to stop driving or indeed never start driving that two miles stretch that led up to the tragic accident that shortly afterwards took place. Your driving over that distance, on your own admission, was quite appalling. Whilst you were driving I acknowledge, and we heard from the doctors, you would have had no, or certainly very little awareness, awareness that you could control as to how you were driving but what took place before that leaves you now to be sentenced by me for causing a small child’s death as a result of what you did. ” Account was taken by the judge of the unusual nature of the Appellant’s medical condition and his usual exemplary ability to control his diabetes and health generally, which was nevertheless deteriorating. Furthermore, account was taken of the reports which indicated that in custody there would be serious management issues relating to the Appellant’s medical condition. The possible loss of an islet cell transplant when he was in custody would be regrettable. He would require “very careful observation in prison by officers and medical staff to make sure that his acute diabetic state is properly managed.” The judge accepted that the case was properly contested on the basis of the medical and legal advice given to the Appellant. 10. The judge considered that there was at least one aggravating feature present, namely that a driver knowing he was suffering from a medical condition which significantly impaired his driving skill nevertheless took a risk which led to an accident. The judge found the authorities of limited help save that they provided a range for sentencing, as did the sentencing guidelines. This had been an appalling tragedy for the family of Cory Ciesielski. The sentence was one of three years imprisonment. 11. We consider that the judge faced a particularly difficult sentencing exercise for a number of reasons, including the fact that the Appellant’s conduct had caused the death of one child and injuries to another. (1) It was necessary to assess the degree of the Appellant’s culpability in the light of his medical condition. (2) It was necessary to take account of the impact of the custodial sentence on the Appellant’s health and in particular the treatment which would and would not be available to him in prison. (3) It was necessary to take account of the impact of the custodial sentence on the ability of the Appellant to undergo necessary surgery for another medical condition. (4) It was necessary to take into account to the delay which had occurred in bringing the matter to trial and sentence. Culpability 12. The Appellant accepted he was responsible for the death of Cory Ciesielski. Although he had initially denied he suffered a hypoglycaemic attack, at trial it was agreed by all parties that he had suffered such an attack. Following receipt of expert medical reports the issue at trial was whether or not the Appellant was aware of the onset of the attack or its likelihood and whether he could have prevented the incident. 13. The jury clearly rejected the evidence of Professor Barnett and Professor Marks. Mr Andrew Fisher QC, who appeared for the Appellant at trial and on this appeal, suggests that the jury may have been unable to accept that someone could drive in excess of two miles, negotiating the hazards which the Appellant did, without being aware of his condition and his appalling driving. Be that as it may, Mr Fisher accepts that it was open to the jury to reject the evidence of Professor Barnett and Professor Marks and to come to their verdict and that there are no grounds on which an appeal against conviction would be arguable. 14. Nevertheless, we have been concerned to identify the precise issues at trial and the precise basis on which the Appellant came to be sentenced. Because there was no appeal against conviction, we have not been provided with a transcript of the judge’s summing up. Accordingly we have not been able to see precisely how the issues were presented to the jury. Furthermore, we have been troubled by apparent contradictions in the judge’s sentencing remarks quoted above. However, we have been greatly assisted by counsel on the hearing of this appeal. In particular Mr Green on behalf of the prosecution has very fairly accepted that we should approach this case on the basis of fact most favourable to the Appellant which is consistent with the fact of his conviction. Accordingly, on the invitation of Mr Green and Mr Fisher we have approached the case on the following basis. (1) The Appellant usually controlled his medical condition in an exemplary manner and was almost obsessive about testing himself, testing his blood more frequently than is recommended. (2) He carried out a blood test at 12.48 p.m and took food after that blood test and before he suffered the hypoglycaemic attack. (3) At some point before or after the start of the dangerous driving there would have come a stage at which he was conscious that he was in the early stage of a hypoglycaemic attack. However, after that he would have ceased to be aware of that fact. The period of awareness could have been very brief and may have been only momentary. We draw particular attention to this unusual factual basis. 15. Subject to one exception, the judge’s sentencing remarks accord with this approach. On this basis the Appellant moved from a condition of normality to a second phase during which he was aware of the onset of a hypoglycaemic attack and thereafter moved into a third phase which was one of hypoglycaemic unawareness. The legal basis for his conviction and the culpability of his conduct are to be found in his conscious failure during the second phase to stop driving. The one observation of the judge which cannot be accommodated within this framework is his observation that there came a time when the Appellant should have been aware of his deteriorating condition. If that were the limit of the Appellant’s culpability he would not have committed the offence charged. We consider that this is a slip by the judge which does not reflect the resolution of the issues by the jury’s verdict. The jury’s verdict is based on their acceptance that there was a time when the Appellant was aware of his deteriorating condition. 16. When these findings are analysed in the light of Cooksley [2004] 1 Cr. App. R. (S.) 1 and Richardson [2007] 2 Cr. App. R. (S.) 36 and the Sentencing Guideline Council guidelines, the aggravating feature that the Appellant drove while knowingly suffering from a medical condition which significantly impaired his ability to drive would normally make this a case of higher culpability in the scale identified by this court in Cooksley and a level two case in the framework of the Sentencing Guideline Council guidelines. 17. However, it was also common ground before us that the second phase during which the Appellant was aware of his deteriorating condition could have been of a very brief duration and may have been only momentary. We shall proceed on that basis. In our judgement this has an important bearing on the degree of culpability. Moreover, there is absent in the present case a further aggravating feature often encountered in cases of hypoglycaemia, namely a driver’s reckless indifference in failing to follow the regime for the regulation for his illness. The very opposite was the case here. 18. A rigid application of the guidance in Richardson would lead to a starting point in the range of 4 ½ to 7 years imprisonment. Similarly, within the Sentencing Guidelines Council guidelines the starting point would be 5 years imprisonment and the sentencing range from 4 to 7 years imprisonment. However, we consider that the further factors we have identified significantly reduce the Appellant’s culpability so that, even when the matter is considered without regard to other mitigation, the sentence falls significantly below the range indicated. The effect of custody on the Appellant’s health and treatment in prison. 19. It is necessary to consider two linked matters here: the management of the Appellant’s condition in prison conditions and the effect of a custodial sentence on the ability of the Appellant to undergo a pancreatic cell implant. 20. In an undated report written between conviction and sentence, Prof Barnett states: “ There is no question in my mind (and this is true for other members of my staff who have seen Mr. Clarke and the other expert witnesses involved in this case) that Mr. Clarke has “hypoglycaemic unawareness”. This is further supported by the fact that Mr. Clarke has now been accepted onto an islet cell transplant programme in Oxford. This is now a recommended procedure as a treatment / possible cure for type 1 diabetes under certain circumstances. The experts in Oxford believe that Mr. Clarke fulfils the requirements from the National Institute for Health and Clinical Excellence for an islet cell transplant based on the fact that he has “hypoglycaemic unawareness” as a clinical entity with “life threatening consequences” and importantly NICE considers this an indication for consideration of islet cell transplant. … In summary, it is my belief that Trevor Clarke will present serious management issues to the prison authorities which could put him at significant risk of harm or even death. This arises from poor warning symptoms of hypoglycaemia as well as the usual issues of having to give insulin injections five times a day, regularly record his blood glucose, care with diet and ensuring he has appropriate levels of exercise. … It should also be noted that whilst in prison I cannot see any possibility of treatment of his diabetes with an islet cell transplant due to the complexity of the procedure, the need for immunosuppressant treatment and careful follow-up. This will deny him the possibility of a cure for both his diabetes and hypoglycaemic unawareness. Poor warnings of hypoglycaemia may lead him to appear disorientated, confused, drowsy and may even be associated with loss of consciousness. He will need very careful observation in prison, not just by the prison officers but also by the medical and allied staff. He will also need regular follow up at hospital diabetes specialist services. There is also the possibility that he could be a danger to others during these episodes particularly if he is in an environment where “reduced brain function/ collapse” could have a negative effect on others, e.g. prison workshops etc. In short, I believe that Mr. Clarke will present major management problems to the prison authorities. He will need very careful observation, follow up and support. My previous dealings with prisoners with diabetes who attend our diabetes services is that many of them are provided with nothing like the level of care required and this may lead to significant detriment to health. In Mr. Clarke’s case, this will be a particular problem given the complexity of his medical / diabetes condition.” 21. In a letter dated 18 th December 2008 – the day before sentence – Professor Barnett explained that experts in Oxford had confirmed that the Appellant fulfilled the requirements for a pancreatic islet cell transplant and were willing to put him into the transplant programme. A number of investigations were necessary however before this could proceed including a coronary angiogram. That was in hand. Some results had been received and others were awaited. 22. In a further report dated 30 March 2009 written for the purposes of this appeal, Professor Barnett repeats his conclusions and states further that he is concerned as to whether there is a safe way the Appellant’s planned islet cell transplant can be pursued while he is in prison in view of the complexity of the procedure, the need for immunosuppressant treatment and careful follow up. He also states that any delay will deny the Appellant the possibility of a cure for both his diabetes and hypoglycaemic unawareness. 23. In a letter dated 2 nd April 2009, Professor Paul Johnson of the Nuffield Department of Surgery at Oxford states that the Appellant is currently awaiting a pancreatic islet transplant. He emphasises that patients are accepted on this programme only if they completely fulfil the criteria for having no warnings of their hypoglycaemic attacks. The Appellant had clearly demonstrated this on detailed assessments carried out in Oxford. He explains that following the first transplant the Appellant will require a further top up transplant about three months later. He will also need intensive follow up, including attending outpatients in Oxford two to three times a week. He states that if the Appellant were not available for a transplant when a suitable pancreas became available it would be difficult to justify keeping him on the national waiting list. Professor Johnson confirms that hypoglycaemic unawareness is a life threatening condition and observes that, initially, the prison service was not carrying out blood tests as frequently as he would have liked. 24. In a further letter dated 6 th April 2009 Professor Johnson states that the Appellant is currently second on the relevant waiting list for an islet transplant. He hopes to be able to carry out the operation in the next couple of months but this depends on the availability of a quality donor pancreas. “If however we have not managed to transplant him within this timeframe, I would be seriously considering referring him to my colleague for a whole pancreas transplant as I am very concerned that his hypoglycaemic unawareness is potentially life threatening for him.” Professor Johnson adds: “I would also re-emphasise the importance of very close monitoring of his diabetes while he is awaiting his transplant. If he has a severe hypoglycaemic episode without any warning this could be fatal. However, if he runs his blood sugars deliberately high in order to prevent hypoglycaemia, this is clearly associated with the onset of other severe complications of diabetes such as blindness and renal failure.” 25. The report provided at the request of this court by the healthcare centre at HMP Hewell, where the Appellant is serving his sentence, is very brief. It consists of one short paragraph and states that the Appellant is coping with his diabetes. He has his medication and testing equipment in his possession and is able to contact healthcare staff at any time. In view of the evidence before us that the Appellant suffers from hypoglycaemic unawareness, this provides limited reassurance. 26. On 27 th April 2009 the Criminal Appeal Office received, in response to a request for information from the court, a fax from the Governor of HM Prison Hewell confirming that Mr Clarke would be facilitated in having the islet transplant at Oxford, including the consequent application supervision, if the opportunity arose. Further Medical Condition 27. Prior to sentence, the Appellant was found to have a nodule in the right lobe of the thyroid. On 27 th of November 2008 he underwent a diagnostic hemi-thyroidectomy. At the date of sentence the only information before the sentencing court on this matter was that if the growth proved to be malignant it may well require further surgery and other treatment which would require regular hospital attendance. However, since sentence it has been established that this was in fact a benign lesion. As a result we do not have to consider the further complications which would have been introduced had the Appellant required surgery for this condition. Nevertheless, we note the opinion of Professor Barnett that the Appellant suffers from possible impairment of heart function and that he has ‘a multiplicity of medical problems’. Delay. 28. We note that there have been significant delays in his case and that, through no fault of the Appellant, 2 years and 8 months passed between the accident and the sentence. We consider that this factor should be taken into account in the Appellant’s favour. Conclusion. 29. For the reasons set out above, we consider that the highly exceptional circumstances of this case reduce the Appellant’s culpability to an extent which brings the offence significantly below the sentencing range which would normally apply in a case of driving whilst conscious of a significant medical impairment. Furthermore, although we are satisfied that the prison authorities would make arrangements for the Appellant to undergo the two operations he requires as part of the cell transplant and would make efforts to accommodate the intensive outpatient regime which would follow, the treatment and the difficulties to which it would give rise make a custodial sentence considerably more onerous for the Appellant than would otherwise be the case. 30. Having regard to all of the considerations identified above, we have come to the conclusion that this is a case in which this Court is entitled to intervene. The seriousness of the offence is such that we are unable to substitute a suspended sentence. However, in our judgement the appropriate sentence is one of twelve months imprisonment. 31. There is, quite rightly, no appeal against the order of disqualification. 32. We wish to address some final remarks to Cory’s parents who, we have been told, have conducted themselves throughout these prolonged and difficult proceedings with complete dignity. It may appear strange to them that this court should devote so much attention to the medical condition of the man whose conduct led to their son’s death. However we are bound to do so in order to establish the degree of his culpability for what occurred and in order that we should be aware of the precise consequences for him of the sentence imposed. We certainly have not lost sight of the appalling tragedy suffered by Cory and his family. The victim impact statements in this case speak very clearly of the extreme suffering of Cory’s family. However, the sentences imposed in cases such as this are not intended to reflect the value of the life lost nor to make reparation in any way. No doubt Cory’s parents would be the first to accept that no sentence, however severe, could ever do that. 33. Accordingly the sentence of 3 years imprisonment will be quashed and one of imprisonment for one year will be substituted. To that extent the appeal is allowed.

2009_05_14-1936.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/921/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/921

e95447c6764c4f9b8182efe6b649672dd0fbbaf1c1290099f1d321736a04bad4

[2008] EWCA Crim 1421

EWCA_Crim_1421

2008-06-06

crown_court

No: 2008/01335/A1 Neutral Citation Number: [2008] EWCA Crim 1421 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 6th June 2008 B E F O R E: LORD JUSTICE SCOTT BAKER MR JUSTICE BURNETT HIS HONOUR JUDGE ROBERTS QC ( sitting as a judge of the Court of Appeal, Criminal Division ) - - - - - - - - - - - - - - - R E G I N A -v- ELIZABETH BEETON - - - - - - - - - - - - - - - Computer Aided Transcript of the Palantype Notes of Wordwave International Limited A M

No: 2008/01335/A1 Neutral Citation Number: [2008] EWCA Crim 1421 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 6th June 2008 B E F O R E: LORD JUSTICE SCOTT BAKER MR JUSTICE BURNETT HIS HONOUR JUDGE ROBERTS QC ( sitting as a judge of the Court of Appeal, Criminal Division ) - - - - - - - - - - - - - - - R E G I N A -v- ELIZABETH BEETON - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - Miss K Thorne appeared on behalf of the Appellant - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE BURNETT: This is an appeal against sentence brought with leave of the single judge. 2. On 23rd March 2007 at the Crown Court at Chichester, before His Honour Judge Thorpe, Mrs Beeton pleaded guilty to four counts of perverting the course of justice and on 20th April 2007 was sentenced to 4 years' imprisonment on each count to run concurrently. Two other counts were left on the file. It is submitted on her behalf that the overall sentence was manifestly excessive, having regard to the circumstances of the offences, having regard to Mrs Beeton's psychiatric and psychological make-up, her domestic circumstances, that is in particular her two young children, and of course her guilty pleas. Additionally, it is submitted that these sentences are not consonant with others imposed or upheld in this court for similar offences. 3. Each count involved the appellant making a false allegation of rape against a 17-year-old boy called Daniel Boiling, and the first count also related to a 24-year-old man called Gareth Horton. 4. The facts are remarkable. In January 2005 Mrs Beeton's husband called the police as a result of an allegation that she had made to him that she had been raped. She was interviewed by the police and that interview was summarised in a statement dated 31st January 2005. She described how in the summer of 2004 she had had sex with Daniel Boiling consensually in her flat. Then in September she said he came round to her flat again and raped her in her bedroom. Then, within a week, Boiling and another man, Gareth Horton, came to her flat again, forced their way in and Mr Boiling raped her, while Mr Horton watched, egging on Mr Boiling whilst he masturbated. 5. Mrs Beeton claimed that from then the same two men came round and raped her so many times that she had lost count. She said that they always said they would hurt her if she told anyone, and she recounted a particular incident on the day after Boxing Day when she suggested that the two men forced their way in and raped her, and also engaged in some violence. 6. Mrs Beeton's suggestion was that the reason the police had been called the day before was because at about 3.30 in the afternoon there was a knock at the door. She described opening it and Mr Boiling and Mr Horton pushing their way in. In the living room she said they pushed her to the floor and Mr Boiling raped her. She said that her son, Josh, who was then aged four or five, was upstairs playing, and walked into the lounge and said words to the effect of, "Get off my mummy." Then he went back to his bedroom. She said that she did not think that Mr Boiling had ejaculated. 7. Mrs Beeton's husband came home later and she explained that she had told him what had happened. He called the police, who went to the address. 8. Unsurprisingly, in the face of a series of very serious allegations of this sort, both Mr Boiling and Mr Horton were arrested and they were interviewed. As is inevitable in cases of alleged rape, various intimate samples were taken from them. It is right to observe that one of the samples taken was blood and that caused particular difficulties for Mr Boiling, who has a phobia of needles. 9. In their interviews, both men denied the offences and explained that they hardly knew Mrs Beeton at all, and had not seen her since the previous September. They did know her husband, but there had been disagreements and allegations made by him against them, they said, and thus they had not seen him since the autumn of 2004. They were both able to give alibis for 30th January 2005. Mr Boiling explained that he had never had sexual relations with Mrs Beeton. After being kept in custody overnight, they were released. 10. The intimate samples taken on that occasion, including those that had been taken from Mrs Beeton, were forensically examined. They produced no forensic evidence whatsoever to support her claim. 11. It does appear that from the outset the police had some suspicions about the genuineness of the complaint, because in a statement dated 31st January 2005 a police officer recorded the fact that he regarded Mrs Beeton's behaviour as suspicious. 12. The alibis to which we have referred were investigated and were confirmed. Although to begin with both Mr Boiling and Mr Horton were bailed, we understand that they were stood down in March, when the police had concluded that the allegations were unlikely to be correct. 13. That history concerns the subject matter of count 1, to which Mrs Beeton pleaded guilty. 14. On 16th June 2005 Mrs Beeton's husband called the police again as a result of another allegation of rape being made. Mrs Beeton was interviewed and made a statement on 21st June 2005. She claimed that at about 10 o'clock on 15th June she was at home with Josh, and was getting ready to go to her neighbour's house to see a friend called Jenny. She said that she had opened the door and found Mr Boiling standing there, that he jumped on her and raped her in the hallway. She described then going to her neighbour's home, but not telling her about what is said to have happened. Neither did she tell her husband about it when he arrived home at 11.30pm, but it emerged during the course of a long period of discussion and petting that they engaged in until about 5 o'clock in the morning. That is why he called the police. 15. Mr Boiling was again arrested and interviewed. He was able to give an alibi for the evening of 15th June 2005 because he was at home with his mother, his stepfather and brother, having dinner before going to bed at about 10 o'clock. He repeated that he had not seen the Beetons for about a year. Intimate samples had been taken from Mrs Beeton and nothing to associate Mr Boiling with her was detected. 16. Again, the alibi was investigated and in due course Mr Boiling was stood down. These facts supported the subject matter of the second offence. 17. However, that was not the end of it. On Sunday 17th July 2005, at about 7 o'clock in the morning, police were called to the Beetons' home address once more. Mrs Beeton told them that the night before she had smelt petrol coming from her front door. She explained that she went to investigate and found Daniel Boiling at her front door with a petrol can and a lighter, threatening to set her flat on fire. She said that he dropped those items and then pushed her to the floor and violently raped her, on this occasion she thought he ejaculated. He then left, taking the petrol can and lighter with him. She did not tell her husband immediately about what had occurred, and she explained that no one else had been with Mr Boiling on this occasion. 18. The matter was again investigated. Various swabs were taken from Mrs Beeton, which provided no support whatsoever for her allegations. Additionally, on this occasion forensic examination was performed at her home, to see whether there was any support for the suggestion that petrol had been spilt or other flammable liquids and none was detected. 19. Those are the facts that give rise to the subject matter of the third count. 20. On 14th August 2005 Mr Beeton called the police again, stating that his wife had been raped two days previously. The allegation Mrs Beeton later made to the police was that she had been watching television one evening. She was vague about when or at what time. She heard the front door open, which she had not locked. She says she got up and saw Daniel Boiling in the hallway, and once again he pushed her to the floor and raped her. It does not appear that on this occasion Mr Boiling was arrested. 21. The impact of these allegations, which were accepted as being false, was, as one would have expected, extremely distressing and profound. In a letter to the court dated 18th July 2006, Daniel Boiling said this: "The experience of these false and malicious allegations of rape has had a profound and disturbing effect on me and my family. I was only 17 years old and it was the first time I had ever been in a police station. Being locked up in a police cell on my own without any outside contact was terrifying for me. Each time I was arrested I have found it an extremely humiliating and degrading experience. The whole process of being arrested three times on three separate occasions, being booked in and taken into custody. I have had my clothes and shoes taken from me and sent away for investigation. I had intimate samples taken that has left me completely devastated. Going through all these procedures/processes has caused me to experience high levels of stress/anxiety, nightmares and I have also experienced numerous panic attacks. I was unable to work for a long period during this time and unable to leave the house. Since this has happened I have felt unable to contemplate having a close relationship with anybody. I feel psychologically damaged and traumatised by everything that has happened to me. I wish that life could be how it was before any of this happened. The reality is it has changed my life and my mum's life forever and unfortunately there is no going back even though that is the one thing I wish for." At the time he wrote that letter it appeared that he would have to give evidence at the trial. 22. Mr Horton, on 20th April 2007, wrote a short note for the court. It said this: "This case has been very traumatic for me and my family, obviously this has affected me in numerous ways. Firstly, I now have a mistrust of most women. I know in myself that this is unjustified but I can't seem to form lasting relationships because of the fear that this might happen again (accused of raping a female). I also don't seem to like being on my own as I feel I need an alibi at all times. Finally, is my mistrust of the legal system, as this has lasted over 2 years! I just want this to finish so I can get on in my life." 23. The appellant was eventually arrested. In the course of what we are told were long interviews, she accepted that the allegations she had made were physically untrue. The reference to "physically untrue" was apparently a contrast with the concept of "mentally true". That is in some way a suggestion that the appellant believed that the rapes had occurred, even though she was accepting that her belief had no foundation in fact. Despite that, she did not plead guilty to these offences until the first day of her trial. The offence in each case requires an intention to pervert the course of justice, which by her pleas she admitted. 24. One thing that has never been adequately explained is why the appellant made these false allegations. The author of the pre-sentence report speculates that it may have been to cover-up an affair. The appellant admitted an affair to get back at her husband, who had apparently earlier strayed. Otherwise, we have mentioned that there was some history between Mr Boiling and Mr Horton and her husband. But the author of the pre-sentence report was reduced to speculation because, although the appellant accepted her culpability, she did not provide any explanation beyond a reference to her mental health concerns. 25. The way in which it has been put before us this afternoon is that the appellant, Mrs Beeton, suffered from a series of problems and difficulties resulting from personality disorder and marriage problems which made her behave in a way which she would not ordinarily have done. 26. Those acting for the appellant sought the assistance of a psychiatrist, Dr Hadi, an associate specialist in psychiatry, who prepared a report on 30th October 2006. He noted that her general practitioner had referred the appellant to psychiatric services in March 2006, long after the commission of these offences, because depression had developed. Dr Hadi in fact explicitly stated that there was no suggestion that depression had played a part in the offending. He noted also that the appellant had unfortunately suffered for some time from epilepsy, but that it was fully controlled by medication. 27. Dr Hadi's conclusion, having seen the appellant three times, was that she suffered from a mixed personality disorder, which contained features of three identifiable personality disorders, none of which was predominant. 28. One of the features of the appellant's personality disorder which we note is that she was apt to act impulsively without thought of the consequences. But the personality disorder does not really throw any light on why the appellant committed these offences. The psychiatric evidence does show that she is emotionally unstable in various ways, and otherwise from time to time is likely to be disturbed. Dr Hadi considered that further expert input was required because she found impairment of memory and was concerned that the appellant might suffer from a learning disability. 29. In consequence of that, Dr Nathaniel-James, a neuropsychologist, was instructed and produced a report. He subjected the appellant to a well-known battery of tests. He concluded that she may have cognitive impairment, but unfortunately was driven to conclude that the tests had no validity because the appellant performed badly on a number of tests which those with severe dementia or serious brain damage can perform with ease. He was unable to determine why she had performed badly, but concluded that she must either have consciously or unconsciously exaggerated her difficulties. 30. In his sentencing remarks, the judge made reference to the conscious or unconscious exaggeration of any cognitive difficulty from which the appellant suffered. Whilst Dr Nathaniel-James had raised the possibility of the appellant being a malingerer (that much was implicit in his finding), the judge concluded that she probably was and also that she was a manipulative woman. That was a conclusion open to him on the totality of the evidence and in particular the history of the appellant's education background, employment, and her ability to deal with quite detailed but peripheral matters when talking to the probation officer for the purposes of the pre-sentence report. 31. We have the benefit of a report that was not available to the judge, namely a report from Dr Rachel Terry, clinical psychologist. She performed further psychometric testing and her conclusion is that the appellant does suffer from some intellectual impairment which places her in the bottom six per cent of the population. 32. None of this material in our judgment illuminates why the appellant committed these crimes. Neither does it really go to excuse her culpability. It does have some impact in showing that prison will be an especially difficult place for her. It does, when coupled with the submissions we have heard this afternoon, provide some explanation for why she might have behaved so far out of character. 33. In his sentencing remarks, the judge gave full credit for guilty pleas and previous good character. He noted, as an aggravating feature, the fact that the offences comprised a course of conduct over many months. He referred to the damage done to the victims. Although not mentioned in the sentencing remarks, he was fully aware from the pre-sentence report of the domestic circumstances of the appellant, and in particular her two young children. 34. So far as we can judge, one decision of this court had been drawn to the attention of the learned judge, namely that of R v Fletcher [2005] EWCA Crim 3284 , where a woman who had made an allegation in circumstances which might be taken broadly to reflect the first of the incidents with which we are concerned was sentenced. On guilty pleas she received a sentence of 2 years, which the Court of Appeal considered to be relatively high, but with which the court did not interfere. 35. The other cases to which our attention has been drawn are helpfully collected together in paragraph 31 of Miss Thorne's advice. She drew our attention to the cases of R v Kyriakou (1990-91) 12 Cr App R (S) 603; R v Gregson (1993) 14 Cr App R (S) 85 ; R v Merritt [2005] EWCA Crim 2313 ; R v Nazifi [2006] EWCA Crim 1743 ; and R v Goodwin (1989) 11 Cr App R (S) 194 . Each of those concerned guilty pleas. Fletcher is the longest sentence identified in those cases and the shortest was four months. 36. These cases make it plain that the consequence of a false allegation of rape will almost inevitably be a custodial sentence. The essential question for this court, on which we have been addressed with skill, is whether the two aggravating features — namely, first, the fact that the primary allegation was made against two men and, secondly, the persistent course of conduct evidenced by multiple accusations against Mr Boiling — justifies 4 years in these circumstances. 37. Miss Thorne submits that taking account of those cases, the sentence imposed by the judge was simply too high, even though she accepts those two distinguishing features and, in our judgment, is bound to accept that the circumstances of this case are more serious than those of Fletcher . 38. There is an additional factor which we consider to be of some importance, which has not been highlighted in the decisions drawn to our attention. It is well known that the conviction rate for rape compared with the number of allegations made is low, when contrasted with many other offences. For obvious reasons, a jury is often confronted with very difficult decisions on credibility. It is extremely easy to make an allegation of rape when there is no foundation for it whatsoever. It is also inevitable that an allegation of rape will be taken extremely seriously by police forces. The cases to which we have been referred, and which I have sought to summarise, show that this phenomenon is not a particularly rare one. There is no doubt that it has entered the public consciousness and it is likely to have the perverse impact of increasing the likelihood of guilty men going free. 39. There is no doubt that the offences to which Mrs Beeton pleaded guilty were very serious indeed. It may be, as was submitted, that Mr Boiling was not detained for long, but the impact on him of what to our eye was a sustained vendetta by a manipulative woman has obviously been very profound indeed. An important feature, as Miss Thorne accepted, is the age of the victim Mr Boiling. 40. Having said that and having regard to the authorities to which our attention has been drawn, we consider that the sentence of 4 years on a guilty plea for which full credit was given is too long. Taking account of all the factors to which we have referred, our conclusion is that that sentence should be quashed and substituted with one of 3 years. 41. LORD JUSTICE SCOTT BAKER: Thank you, Miss Thorne. 42. MISS THORNE: Thank you very much.

2008_06_06-1531.xml

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[2022] EWCA Crim 1815

EWCA_Crim_1815

2022-11-17

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NOS 202202867/A1 & 202202868/A1 NCN [2022] EWCA Crim 1815 Royal Courts of Justice Strand London WC2A 2LL Thursday 17 November 2022 Before: THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION LORD JUSTICE HOLROYDE MRS JUSTICE FOSTER DBE THE RECORDER OF LIVERPOOL HIS HONOUR JUDGE MENARY KC (Sitting as a Judge of the CACD) REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 REX v EWYN SAIN DENECKER MARIO BARCELA SALA 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 B HOLT appeared on behalf of the Attorney General MISS C MADDOCKS appeared on behalf of the Offender Denecker MR M ALDEIRI appeared on behalf of the Offender Sala J U D G M E N T 1. THE VICE-PRESIDENT: Ewyn Denecker and Mario Sala pleaded guilty to offences of conspiracy to supply controlled drugs of class A. For convenience only, and meaning no disrespect, we shall refer to them by their surnames. Denecker was sentenced to a total of three years' imprisonment; Sala to a total of three years six months' imprisonment. His Majesty's Solicitor General believes those sentences to be unduly lenient. Application is accordingly made, pursuant to section 36 of the Criminal Justice Act 1968, for leave to refer the case to this court so that the sentencing may be reviewed. The facts 2. The indictment alleged that Denecker and Sala conspired together between 1 June 2020 and 10 March 2022 to supply to others crack cocaine (count 1) and diamorphine (count 2). They pleaded not guilty at a plea and trial preparation hearing in the Crown Court at Portsmouth on 11 April 2022 and their case was fixed for trial on 5 September 2022. Sala filed a defence statement in which he denied any involvement in drug dealing. However, from about July onwards there were discussions between counsel which resulted in a hearing on 26 August 2022, that being the earliest date at which all involved could attend. Both men pleaded guilty to both counts at that hearing. 3. The charges related to the supply of class A drugs in the Havant area. The drugs were sold via the "gypsy deal line", so-called because the person operating the line referred to himself as "the gypsy". Over the 21-month period covered by the indictment, the gypsy line operated on a total of seven different mobile phone numbers, and the evidence showed that the SIM cards linked to those numbers had been used in a variety of handsets. 4. Gypsy line phones were used to send bulk text messages to the contact list of customers, typically stating what drugs were available for sale. During the period covered by the indictment, the gypsy line phones collectively sent a total of 26,666 such bulk messages. 5. It was the prosecution case that Sala was “the gypsy”, and that Denecker was his assistant. The SIM card for the first of the gypsy line numbers, used in July and August 2020, was registered to an address which Sala had given when stopped by the police in March 2020. Six other handsets were shown by call data to have housed at different times both a SIM card attributed to Sala and one or more SIM cards linked to a gypsy line number. 6. Denecker was stopped by the police on 30 September 2020. He was driving a car in which was found a Lucozade bottle containing 29 wraps of cocaine and 19 wraps of heroin. Sala's fingerprints were found on two of the wraps. Denecker was also in possession of two mobile phones. One had exchanged many calls with one of the gypsy line numbers and had received from that number a series of messages listing 15 postcodes in the Havant area. The prosecution submitted that it could be inferred that Sala, operating the gypsy line, was directing Denecker as to the addresses to which he should deliver drugs. They derived support for that submission from the fact that similar lists of postcodes sent from gypsy line numbers were found on a phone seized from a woman arrested in February 2021 on suspicion of being concerned in the supply of class A drugs. 7. From the date of that police stop onwards, Denecker was under police investigation and must have known that he was liable to be prosecuted at some point. 8. Sala was arrested on 17 March 2021 on suspicion of being concerned in the supply of drugs. He had two phones with him. One contained the SIM card operating one of the gypsy line numbers, the other had previously housed the SIM card linked to another of the gypsy line numbers. He too was released under investigation. 9. Denecker was again stopped by the police on 5 January 2022. He had a mobile phone which had exchanged over 1,000 text messages with gypsy line numbers. 10. Both men were arrested on 10 March 2022. Sala had a mobile phone which had housed two of the gypsy line numbers. He had a second phone, the packaging for which was found at Denecker's home. ANPR and cell siting evidence supported the assertion that Sala was the principal operator of the gypsy line. Cell siting evidence showed that four of the gypsy line numbers, and to a lesser degree also a fifth, had frequently used "bed and breakfast" cells in the vicinity of the address at which Sala was arrested. The remaining gypsy line numbers had used bed and breakfast cells in the vicinity of addresses used by Denecker at the time when those numbers were active. 11. An estimate was made, by analysis of the gypsy line call data, of the total quantity of drugs supplied during the period covered by the indictment. This was done by estimating that at least one-quarter of the bulk messages sent would have resulted in a sale of the amount of heroin and crack cocaine expected to be bought by a drug user. On the basis of those assumptions, the total quantity sold would have been about six kilograms of class A drugs. The sentencing hearing 12. As we have said, there had been discussions between counsel prior to the hearing on 26 August 2022. Counsel then appearing for the prosecution had prepared a sentencing note in which he suggested that under the Sentencing Council's definitive guideline relating to substantive offences of drug supply, this was a Category 3 case in which Denecker played a significant role and Sala a leading role. 13. Both men are now aged 33. Both have previous convictions, but their previous offending was largely in the form of low-level dishonesty, disorderly behaviour and motoring offences. Neither had been convicted of offending involving class A drugs, although Sala had two convictions for possession of cannabis. 14. A number of testimonial letters and prison certificates had been put forward on behalf of both men, showing their better sides. No pre-sentence reports were thought to be necessary and none is necessary at this stage. 15. Prosecution counsel, in opening the case to the judge, reiterated his suggestion that this was a Category 3 case under the guideline. The judge pointed out that he had to sentence for offences of conspiracy and that the estimated total quantity supplied would fall within Category 1 of the guideline. Miss Maddocks, then, as now, representing Denecker,, acknowledged that it was a matter for the judge but said that her view had been that a sentencing hearing could take place because it had been "agreed between the prosecution and defence that this would be sentenced as a Category 3 offence". The judge said that in view of the agreed approach of counsel he would proceed on the basis of a Category 3 conspiracy. The sentences 16. Having heard submissions about the respective roles of the defendants, the judge said that there was no clear evidence which would place Sala in a leading role and concluded that Sala was "at the top end of significant role". He placed Denecker "right in the middle of a significant role". 17. Under the guideline, a significant role in a Category 3 offence has a starting point of four years six months' custody and a range from three years six months to seven years' custody. In Sala's case the judge raised the starting point to five years six months but then reduced it by a year to reflect the personal mitigation. In Denecker's case he took the guideline starting point, which he reduced by nine months to reflect the personal mitigation. He then reduced each of the sentences by 20 per cent to reflect the guilty pleas. Thus he imposed concurrent sentences on each of the two counts of three years' imprisonment in Denecker's case and three years six months' imprisonment in Sala's case. The submissions 18. On behalf of the Solicitor General, Mr Holt submits that those sentences were unduly lenient. Relying on the principles stated in R v Stewart [2016] EWCA Crim 2238, Mr Holt submits that he can properly depart from the concession made by prosecution counsel below that the offending fell within Category 3 of the guideline. He acknowledges that in cases such as Attorney General's Reference No 79 of 2009 [2010] EWCA Crim. 187 and R v Susorovs [2016] EWCA Crim 1856, this court has either refused leave to refer or has made an adjustment to sentence in the offender's favour where a departure from a concession made below has resulted in unfairness to the offender. Mr Holt submits, however, that there is no unfairness in his relying at this stage on the evidence as to the total quantity of drugs, which was estimated in a manner accepted as permissible by this court in R v Akrofi-Daniels [2022] EWCA Crim. 589, and on the inferences to be drawn from the evidence as a whole. He submits that the offending should have been placed in Category 1 and that Sala should have been sentenced on the basis of a leading role, or at least a role at the point of overlap between a significant and a leading role. He accepts that Denecker was properly categorised as having a significant role. 19. Miss Maddocks submits on behalf of Denecker that the matter only proceeded to sentence "on the understanding that there was an agreed position" on the guidelines and "solely on the premise" that Denecker would be sentenced on that basis. If that had not been agreed, she submits the case would have been adjourned so that a formal written basis of plea could be put forward, and the defence would have wished to obtain expert phone evidence with a view to challenging the prosecution case as to the scope and duration of the conspiracies. Steps had already been taken to obtain such evidence but, Miss Maddock says, had been put on hold because of the agreement as to the basis of sentencing. She submits that it would be unjust now to depart from that agreed approach. On the basis of what had been agreed, she submits that the judge properly considered all relevant factors and imposed a sentence which was not unduly lenient. 20. Mr Aldeiri, representing Sala in this court as he did below, similarly submits that the experienced judge made no error of law or principle, assessed all relevant factors and passed a sentence which was within the range properly open to him. 21. We are grateful to all counsel for their assistance. Analysis 22. It is apparent from the transcript of the hearing that defence counsel were able to and did make detailed submissions as to the extent of the conspiracies, as to the role of the individual offenders and as to the agreement amongst the advocates as to the categorisation under the guideline. In particular, Miss Maddocks was able to submit, and the judge accepted, that Denecker had not become involved in the conspiracies until August 2020, and then as a result of his own use of class A drugs. Had counsel wished to pursue the possibility of obtaining expert evidence, they could have asked the judge to adjourn the sentencing hearing. An application to adjourn could also have been made in order to put in what was referred to as a basis of plea, although it would in truth have been no more than a note of submissions as to the appropriate basis for sentence. Whether either of those applications would have succeeded would have been a matter for the judge. However, the apparent suggestion that the defendants could in some way dictate the terms on which they were willing to be sentenced is misconceived. It is for the judge to decide the basis of sentence, taking account of any agreement between counsel but not being bound by it, and any complaint that a different approach would cause unfairness could have been dealt with by an application to adjourn. 23. We can understand why the judge was reluctant to sentence on a basis which was significantly different from that which was agreed between all the advocates, particularly when he was told that counsel had only been willing to proceed to sentencing that day on the agreed basis. However, his first instincts were correct, and it is unfortunate that he was led by counsel into an approach which, with respect to all concerned, was clearly wrong. 24. Sala and Denecker were involved in conspiracies to supply two different types of class A drugs on a substantial scale over a period approaching two years. Neither had been deterred by police stops and arrests during that period, or by the knowledge that they were being investigated for drug offending. Their drug dealing only ended when they were arrested and held in custody. As was observed by Edis LJ in R v Kavanagh [2021] EWCA Crim. 1584 at paragraph 7, the court in such circumstances must take into account the fact that the conspirators intend their conspiracies to continue. The suggestion that they fell to be sentenced on the same basis as a conventional street dealer convicted of a substantive offence of supply was and remains untenable. As was said in R v Akrofi-Daniels [2022] EWCA Crim 589 at paragraph 19: "The Sentencing Guideline states that the court should consider all offences involving supply directly to users as at least category 3 harm; but nothing in the wording of the Guideline prevented the Recorder from treating the applicant's offences as falling within a higher category if the threshold for a higher category was met." 25. We underline those words. The indication in the guideline as to the approach to be taken to street dealers is not to be relied upon to reach an absurd result, seeking to equate persons running a drug line such as this, over a period of many months, with a conventional street dealer. The threshold for a higher category plainly was met in this case. 26. We are not persuaded that there is any unfairness to the offenders in the Solicitor General now departing from the concession wrongly made in the court below. It was always the prosecution case that the conspiracies had involved substantial quantities of drugs and that Sala was more culpable than Denecker, although of course both shared in the wider criminality of the conspiracies. As to the estimate made of the total quantity of drugs dealt, it seems to us that the algorithm relied upon by the police officer concerned adopts an appropriately conservative approach. But even if a yet more conservative approach be substituted, the inescapable fact is that substantial quantities of class A drugs were involved. Why else would the conspiracies have continued over so many months? 27. The applicability of guidelines to offences of conspiracy to supply drugs, and the approach to be taken in such circumstances, are well-established: see R v Khan and others [2013] EWCA Crim. 800. 28. In our judgment, being as favourable as possible to the offenders, the total quantity of drugs in which they dealt puts the case at the level which represents the overlap between Categories 1 and 2. The sentences, based as they were on Category 3, were therefore unduly lenient. In fairness to the offenders, we think it right to remain faithful to the judge's assessment that Sala was at the top end of the significant range and Denecker in the middle of that range, and to his assessment of the weight to be given to the personal mitigation advanced in each case. 29. Again being as favourable as we can to the offenders, we think that the least sentences which could properly be imposed before reduction for guilty pleas were 10 years' imprisonment in Sala's case and seven years six months' imprisonment in Denecker's case. The judge allowed 20 per cent credit for the pleas and we shall do the same. 30. We therefore grant leave to refer. We quash the sentences as unduly lenient. We substitute concurrent sentences on each count as follows: Denecker, six years' imprisonment; Sala, eight years' imprisonment. 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]

2022_11_17-5498.xml

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[2003] EWCA Crim 194

EWCA_Crim_194

2003-01-30

crown_court

No: 200201125/Y4, 200206186/Z5, 200203554/Y3, 200205806/X4, 200203226/W1, 200204561/Z3, 200205349/Z4, 200201675/W4, 200203918/Y5, 200204488/X4, 200205399/X4, 200205556/X5,2002200124,W3,200203333/X3,20020554/W5 Neutral Citation Number: [2003] EWCA Crim 194 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand, London, WC2 Date: Thursday. 30th January 2003 BEFORE: LORD JUSTICE ROSE (Vice President of the Court of Appeal, Criminal Division) MR JUSTICE AIKENS MR JUSTICE MACKAY - -

No: 200201125/Y4, 200206186/Z5, 200203554/Y3, 200205806/X4, 200203226/W1, 200204561/Z3, 200205349/Z4, 200201675/W4, 200203918/Y5, 200204488/X4, 200205399/X4, 200205556/X5,2002200124,W3,200203333/X3,20020554/W5 Neutral Citation Number: [2003] EWCA Crim 194 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand, London, WC2 Date: Thursday. 30th January 2003 BEFORE: LORD JUSTICE ROSE (Vice President of the Court of Appeal, Criminal Division) MR JUSTICE AIKENS MR JUSTICE MACKAY - - - - - - - - - - - - REGINA -v- PARVAIS NAJEEB & ORS - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - MR M MANSFIELD QC & MISS T MYLVAGANA appeared on behalf of the APPELLANTS LATIF, AZAD, HUSSAIN, HANIF, QURBAN, KHAN & RAZA MR S MYERS appeared on behalf of the APPELLANT KHALIL MR S WOOD appeared on behalf of the APPELLANT NAJEEB MR R GIOSERANO appeared on behalf of the APPELLANT QAZI MR T BAYLISS appeared on behalf of the CROWN - - - - - - - - - - - - JUDGMENT 1. THE VICE PRESIDENT: The cases of four appellants and eleven applicants have been heard together in this Court because, although they were sentenced at Bradford Crown Court on different occasions by three different judges, they all took part in a riot in Bradford on 7th/8th July 2001. 2. The circumstances were these. There had been disturbances in Oldham 2 months before, and in Burnley, two weeks before. In relation to Burnley, the Recorder of Preston subsequently identified as racist attacks which had been made on Asians, and a jury at Preston acquitted all the Asian defendants on the basis that they had been acting in self-defence. 3. On 6th July 2001, the leader of the British National Party made a speech in Ravenscliffe, Bradford. The Bradford City Council had cancelled a World Inner City Festival which had been scheduled to take place in the city on 7th July. On 7th July, at 10.00 am, Anti Nazi league party supporters began to gather in Centenary Square, Bradford, in response to an assembly by the National Front party which had been contemplated but which the police in Bradford had banned. During the course of the morning, small groups of national front members were in Centenary Square handing out leaflets. There were a number of minor scuffles between opposing factions and a considerable number of Asian youths in the square. 4. The Asian community were, understandably, concerned about the need to defend themselves against right wing extremists. By 2.30 pm, the city centre was awash with groups of up to 200 people and serious disorder ensued between rival Asian and white males in the Ivegate and Market Street areas. A number of arrests were made, but the majority present were dispersed and made their way towards the Sunbridge area of Bradford. Missiles were thrown by groups of Asian youths at premises, smashing windows. From about this time, police officers were targeted. 5. At a little after 4.30 pm an Asian man received serious stab wounds at the hands of a white man in Sunbridge Road. Another man was also stabbed in the leg. There were reports to the police by members of the public about Asian males running amok in the city centre. Confrontations between white and Asian youths continued along Ivegate, where a number of those who were ultimately to appear before the courts were arrested. There were further reports to the police about the carrying of an array of sticks and baseball bats and attacks on city centre pubs and shops. 6. At that stage, the police decided to drive the increasing number of youths out of the city centre to prevent further destruction. At 6.30 pm, this group, which was largely Asian, had been pushed back to the White Abbey Road area. Premises were then attacked by stone throwing Asian youths who appeared to be selecting their targets. At this time, the police came under a heavy barrage of missiles, ranging from petrol bombs to stones. All available police were asked to attend White Abbey Road. Two police horses were stabbed. At one time the police were heavily outnumbered. They were attacked with sections of metal fencing, a cross bow was used and the mob then retreated and began to build barricades, using stolen motorcars which had been set alight. Further public houses were damaged and some set alight. Stolen cars were driven at the police ranks, some of those cars being, as we have said, deliberately set on fire. On one occasion, a car was reversed into the police ranks, the driver trying to knock the officers down. 7. By 10.00 pm many police officers had been injured and there were no more ambulances available. At 11.30 pm a police commander believed that lives were at risk and other forces were contacted for assistance. Almost 400 police attended from other forces. Other premises were then targeted, including a local labour club, where burning vehicles were put at the front and back, and petrol bombs were thrown trapping those inside. The police arrived soon after and the people inside were released. But the premises were completely destroyed. 8. At 1.15 am, the mob focused its attention on two garages, Listers Motors in Oak Lane and Sunwin motors on Keighley Road. Both were looted and cars stolen. Both premises were damaged by fire and Listers Garage was completely gutted. Other premises in the Oak Lane area were also badly damaged, as were four further public houses. 9. By 5.00 am, the troubles were coming to an end. A Do It Yourself in Oak Lane was ramraided at that time by a stolen car and the shop was looted by Asian males. 10. By reason of these events, over 300 police officers, from a number of police forces, were injured. The damage was estimated at one stage at £27 million. Businesses were ruined. Thirty-five people were arrested during the time of the tumult and others, including most of the defendants before us, surrendered and/or were arrested later, after analysis of video films of the riot had been completed and pictures had been published in the media of some of those who had been involved. At the Bradford Crown Court, videos were shown which depicted the nature and scale of the riot and, in the case of most of the defendants before this Court, some of their activities. All these defendants save Maskin, who pleaded guilty to violent disorder, pleaded guilty to riot. Four of them, Najeeb, Qazi, Mahmood and Raja, each of whom was sentenced to 4 years' imprisonment, appeal by leave of the Single Judge. The other eleven renew their applications for leave to appeal following refusal by the Single Judge. Of those eleven, Maskin was sentenced to 2 years and 9 months and the other 10 to periods of imprisonment between four and six-and-a-half years. A twelfth applicant, Ranzeb, who was sentenced to four-and-a-half years' detention in a young offender institution, abandoned his renewed application for leave to appeal on the day before the hearing began in this Court. 11. In total, so far, over 100 defendants have been sentenced, the great majority for riot and almost all following pleas of guilty. Leaving aside a sentence of eight-and-a-half years passed on a man called Rashid, who was convicted by the jury of throwing petrol bombs, an activity in which only Khalil of the present defendants was involved, the sentences passed on adults, subject to very few exceptions, have been within the range of 4 to six-and-a-half years, on a plea of guilty to riot. For those under 18 at the time of the offence, terms between 6 and 18 months' detention have been imposed, since this Court, differently constituted, in Ghafoor on 19th July 2002, reduced from four-and-a-half years to 18 months the sentence on a defendant who was 17 at the time of the offence, the Court saying that, in that case, there was no good reason to depart from the maximum of 2 years generally available for a 17 year old. 12. In relation to violent disorder, on 7th July, in Infirmary Fields, there was disorder involving, initially, about 20 people. Apart from one community penalty, the sentences imposed on the 16 defendants who have appeared before the courts in relation to that matter have been within the range of 9 months to 3 years. It was this episode in Infirmary Fields in which the defendant Maskin was involved. 13. In this context, it is convenient to refer to another decision of this Court, differently constituted, in Chapman Neutral Citation 2002 EWCA Crim 2346 Court of Appeal (Criminal Division) transcript of 16th October 2002. There, a sentence of 3 years' detention in a young offender institution, on a young man who was 19 at the time of the offence and was of good character, was upheld by this Court, following his plea of guilty to violent disorder. He had been involved, for about 15 minutes, throwing stones in the direction of the police in the course of disorder at the Ravenscliffe Estate in Bradford which took place two days after the riot with which we are concerned, that is on 9th July 2001. That disorder lasted about 4 hours, and was less serious and violent and caused conspicuously less damage than the Manningham riot with which we are concerned. The sentences imposed on the seven defendants other than Chapman, who all pleaded guilty to violent disorder, were, save for one community penalty, within the bracket of 15 to 30 months' imprisonment or detention in a young offender institution. In giving the judgment of the Court, dismissing Chapman's appeal, Judge LJ quoted extensively and with express approval from the sentencing remarks of Judge Gullick, the Honorary Recorder of Bradford who, as will appear, sentenced almost all these defendants and who, on 23rd November 2001, sentenced a man called Ashraf, who was the first defendant to be dealt with for his part in the Manningham riot. Those remarks of Judge Gullick demonstrate, as is accepted, that he had considered the relevant authorities. Indeed several passages in his remarks expressly reflect the principles which they state. In particular, he stressed the importance of looking at the overall level and nature of the violence used on the occasion in which a particular defendant was involved, the extent of any premeditation, the numbers of persons involved and, in the context of the overall picture, the specific acts of the individual defendant. Judge Gullick repeated those remarks verbatim on many occasions when sentencing other defendants. It is right to say that the remarks approved by the court in Chapman did not include a passage, to which exception is taken before us, in which Judge Gullick said that he was not concerned with the origins of the prolonged violence. 14. For two of the appellants, Mahmood and Raja and all of the applicants save Khalil, Mr Mansfield QC, while accepting that this was a case of extremely serious disorder calling for custody, submits that the general level of sentences passed was manifestly excessive, having regard first to the judge's express exclusion of reference to the origins of the violence, whereby a deterrent component in the sentence became determinative, and secondly to the level of sentences suggested by the authorities, in particular Keys 8 Cr App R(S) 444 and Pilgrim 5 Cr App R(S) 140. In imposing a sentence of 4 years on those who were the least involved, bearing in mind that the defendants almost all gave themselves up, expressed remorse and pleaded guilty at the first opportunity, Mr Mansfield submits that the judge must have given a one-third discount, indicating that his starting figure was 6 years; this, submits Mr Mansfield, was too high. 15. The authorities stress the importance of the distinction between riots which are premeditated and preplanned and those which are spontaneous. Although the police were targeted, the origin of this riot began in the fear within the Asian community, to which almost all of the defendants referred in their police interviews, of racial attack from right wing elements. 16. The judge's starting point, submits Mr Mansfield, should have been 2 years not 6 for those who did nothing. Throwing missiles might take the starting point to 3 years, after a trial, but less in view of the pleas and personal mitigation. The sentences should have been, he submits, in the range 18 months to 3 years, not 4 years and upwards. The imposition of severe deterrent sentences can aggravate the position because the Asian community may be deterred from cooperating, as they did in the present case, by bringing forward defendants once they had been identified by pictures in the media. 17. Miss Mylvaganam made specific submissions in relation to Shazad Ali, Mr Wood in relation to Najeeb, Mr Gioserano in relation to Qazi, Mr Myers in relation to Khalil and Mr Ryder in relation to all the other defendants. 18. Before turning to the individual defendants, it is convenient to make some general observations as to how we have approached our task. The task of the sentencing judges was, as is accepted, a difficult one, in view of the number of defendants, the large amount of video and other evidence and the necessity to deal with the cases over a period of months. Furthermore, this Court must attach great weight to the knowledge of three judges of local conditions. We have been assisted by the authorities to which we have been referred. But it is necessary to approach them with caution in three respects. First, although in Keys some guidance was given, in particular as to the minimum sentence appropriate for a defendant involved, however slightly, in serious rioting and in relation to sentences of 7 years and upwards being called for in relation to ringleaders, Keys was not a guideline cases in the way those words are presently understood. In particular, the Crown was not represented; there was no comprehensive analysis of aggravating and mitigating features and no clear bands of sentence were identified. Secondly, in the present case, unlike the position in earlier reported cases, there is, in relation to almost every defendant, a video record which clearly identifies him and shows at least some of what he did. This, as we shall seek to explain, is of particular relevance in relation to discount. Thirdly, all riots differ in origin, numbers involved, aim, duration and effect. The riot in the present case was of the utmost gravity. It involved many hundreds of people. It was aimed at the police. It lasted about 12 hours. Many police officers were injured and put in fear and many millions of pounds worth of damage was done. We accept that it was not initially premeditated, for it was almost certainly triggered by the incident after 4.30 in the afternoon, when the Asian man was stabbed. We also accept that there was, on 7th July, anxiety, understandably, in the Bradford Asian community, arising from the cancellation of the Inner City Festival, which had been due to be held that day, and from the presence in the city that day of white racists, who, in recent weeks, had fomented trouble in Burnley and Oldham. But the riot was directed from its early stages at the police, who were seeking to prevent conflict between two rival groups by moving the Asian youths from the town centre and confining them to the Manningham area where most of them lived. 19. As the hours passed, we have no doubt that there were clear signs of organisation among the rioters (some of whom were communicating by mobile telephone) particularly in missile throwing, in setting alight vehicles and in preparing and distributing petrol bombs. In consequence, what had initially, no doubt, been spontaneous became marked by premeditation: hence those rioters who covered their faces because of what they intended to do and those who left the scene but later returned after changing clothing or having a meal. 20. It is enormously to the credit of the senior members of the Asian community that they played the role which they did in seeking to calm matters and to restrain the younger members of their community from acting as they did. That attempted peace keeping role is repeatedly apparent in the videos. The defiance of the young of those in entreaties makes the outcome all the more regrettable. It is also enormously to the credit of the senior members of the community that they prevailed on many of the young to surrender to the police when pictures of those involved were published in the media. It is, however, the young, not the senior members of the community, who are before the Court. We have no doubt that deterrent sentences were called for, so that previous good character and circumstances of individual personal mitigation are of comparatively little weight. 21. We would have expected, in relation to this riot, and we stress that we are not referring to other riots, that, if any ringleader had been caught and convicted following a trial, a sentence at or near the statutory maximum of 10 years would have been imposed. Immediately below that highest level of culpability, we would have expected an active and persistent participant, who threw petrol bombs or used a cross bow or drove a car at the police to be sentenced, following a trial, to between 8 and 9 years, as was Rashid, to whom we referred earlier, who threw petrol bombs. 22. Below that level, for those who participated over a number of hours, and threw missiles less dangerous than petrol bombs but potentially more damaging than stones, such as gas cylinders, knives, metal fences or poles, or who set fire to cars, we would have expected, following a trial, sentences of 6 to 7 years. Below that level, for those present for a significant period and repeatedly throwing missiles such as bricks or stones, we would have expected sentences of 5 years following a trial. Lesser degrees of participation would, we would have expected, attract sentences at a lower level. All the figures which we have mentioned would need to be discounted in an appropriate way for pleas of guilty and early co-operation with the police. 23. So far as the sentences actually passed on these defendants are concerned, it is unfortunate that Judge Gullick, in his sentencing remarks, said that he was not concerned with the origins of the prolonged violence. It may be that what he meant was that it was not the court's task to investigate the precise origins of the violence and, in any event, that those origins paled into insignificance compared with the many hours of rioting which followed. But his words could well be understood as meaning that the reasons why the riots started were entirely irrelevant. If he meant that, he was wrong. 24. For the purposes of the proceedings before us, the defendants have been divided into different bands according to the sentences they received. In band one, are those sentenced to 4 years; in band two, those sentenced to four-and-a-half years or 4 years 9 months; in band three, those sentenced to 5 years; and in band 4, Maskin alone, who was dealt with for violent disorder. Khalil, who, as we have said, received six-and-a-half years, is in a fifth band. None of the Crown Court judges put the defendants in bands in this way. 25. It is to be noted that none of these defendants was sentenced for mere encouragement by presence. All were present for a significant period of time, in some cases for many hours, and almost all threw missiles more than once. The appropriate starting point in relation to each was therefore very significantly above the 2 years indicated in Keys . We do not accept that Judge Gullick's starting point for the defendant's before him who were least involved, was 6 years. It is, of course, well established that, in general, a discount of the order of one-third will be given for a plea of guilty. But, depending on the particulars circumstances, the discount may be higher or lower. It is of a particular relevance here that the courts have consistently said that the discount for plea may be substantially less than one-third, when the evidence against a defendant is overwhelming and his prospects of acquittal on a trial are negligible. It is a striking feature of the present case that, as we have already pointed out, video film clearly identified virtually all the defendants by face and clothing and showed some of their activity. In these circumstances, a discount as great as one-third was not, in our view, to be expected for pleading guilty. In consequence if, as seems likely, Judge Gullick's starting point for the least involved was in the region of 5 years, the question arises as to whether that was too high. 26. We have already indicated, in the remarks we have made about our general approach, that it was not. Ultimately, of course, the question we must ask in relation to each defendant is whether the sentence passed on him was manifestly excessive for his part in this riot. 27. We turn to the individual defendants and we will deal with them in the order in which they appear in the Court list. The principal factors on the basis of which we draw distinctions between them relate to the stage at which each was present, the duration of his presence and what he did while there. Najeeb pleaded guilty on 11th December 2001 and was sentenced by Judge Gullick on 8th February 2002. He was born in August 1974, so he is now 28. He was first captured on video in Centenary Square a little before 4.00 pm. He was seen on a couple of occasions later, with the crowd, in both Sunbridge Road and Ivegate and he was also seen running through a pedestrian precinct with a larger crowd. At 6.48 pm he was in the hostile crowd on White Abbey Road, where barricades had been erected and missiles were being thrown at police lines. At 6.54, he jumped from behind others, swinging his right arm forward, in a throwing motion, sufficient to lift him off his feet and spin his body through 90 degrees although no missile was visible. He handed himself in within hours of seeing his photograph in the newspaper. His explanation, at that time, for the throwing action was that he was just moving his arm in a throwing motion without a missile because he was drunk. His counsel, however, accepted that he had thrown one missile. He pleaded guilty at the first opportunity. There were character references upon him, in particular, from his employers. 28. On his behalf, Mr Wood submits that there need not have been a long-term sentence, having regard to the limited part which he played in these events. Mr Wood stressed the early plea and the appellant's remorse. With those submissions we have some sympathy. Accordingly the appeal of Najeeb is allowed, the sentence of 4 years upon him is quashed and we substitute a sentence of 3 years' imprisonment. 29. Qazi pleaded guilty on 3rd April 2002 and was sentenced by Judge Gullick on 27th September. He was among those in the front line of the riot early in the evening, throwing a missile at the police and arming himself with a broken lamp pole and he was among a group which attacked a police van, the appellant striking it three times with the pole. He then picked up a shopping trolley, which he threw at one of the police vans. At about 8.00 pm he was seen with a gas cylinder, which he threw towards the police, knocking an officer over. Subsequently, he was seen gesticulating towards the police, and he left the scene after about two-and-a-half hours. However, after a change of clothing he returned at about 10.15 pm, about 2 hours after he had left. His face was covered. He gesticulated towards the police. He picked up a burning object which he threw at a stolen car. He hurled a gas cylinder, from a short distance, at the police lines knocking an officer down. He left the scene of the riot and went to a nightclub in Sheffield. He was arrested some time later, after he had been recognised from his photograph. 30. The learned judge, in passing sentence, said that, but for his mental condition, to which in a moment we shall turn, a sentence of five-and-a-half years' imprisonment would have been imposed. The sentence passed was of 4 years. 31. Qazi was born in April 1980. There were upon him and are before this Court psychiatric reports from Dr Scala, dated 13th February 2002, and from Dr Harrop, dated 21st March 2002 with an addendum, dated 16th May 2002. This appellant suffers from a mental illness, namely mania, whereby he shows an elevation in mood out of keeping with his circumstances, accompanied by overactivity, grandiose ideas and over confidence. In consequence, his behaviour may be reckless or foolhardy. In Dr Scala's view, the appellant's thought processes and reasoning were, at the time of the riot, affected by a manic episode, whereby he did not retain full responsibility for his actions. At the time of Dr Scala's report, he was receiving appropriate treatment for his condition. It appears from Dr Harrop's reports, that he had earlier, that is to say before the riot, been receiving inappropriate treatment for his bi-pola effective disorder, as she describes it. But it was made clear in the addendum to her report that that misprescription cannot, because it had not taken place over a sufficiently long period, have contributed to his conduct at the time of the riot. He was, however, at that time, hypo manic. 32. Mr Gioserano, on behalf of this appellant, did not take issue with the judge's starting point of five-and-a-half years. That is unsurprising. For the reasons which we have already given conduct might well have attracted a starting point somewhat higher than five-and-a-half years. Mr Gioserano conceded that Qazi played a most serious part in this riot. As against that, he submitted, it cannot safely be said that he would necessarily have been involved at all, had he not been suffering from the mental disorder to which we have referred. 33. The learned judge, Mr Gioserano submitted, effectively found, in a phrase from a different context, diminished responsibility on the part of this appellant. In consequence, it was submitted that there should have been a much greater reduction on the otherwise appropriate sentence than to the term of 4 years which the judge imposed. Mr Gioserano suggested that it could be reduced to such an extent as might permit a sentence to be suspended. 34. We agree with the submission that the learned judge made an insufficient reduction. We are not persuaded that it was appropriate for a suspended sentence to be imposed. We shall allowed Qazi's appeal, by quashing the sentence of 4 years and substituting for it a sentence of 2 years' imprisonment. 35. Mahmood pleaded guilty on 7th May 2002 and was sentenced by Judge Gullick. He was present for about 5 hours and was seen in the crowd several times. Once he threw an object at the police lines. He was also seen making gestures towards the police. He was seen in the vicinity of two cars which were being damaged and also nearby when a petrol bomb was thrown, although there was no suggestion that he himself threw such a bomb. He was arrested on 31st January 2002. He admitted his part in interview. He has previous convictions, the only one which is possibly relevant being for common assault some time ago. He was born in January 1978. 36. On his behalf, Mr Ryder submitted there was significant personal mitigation in relation to Mahmood. He has a sick child with a serious congenital heart defect. His wife does not speak English. Mr Ryder conceded, rightly, that Mahmood's activity was not at the lowest end of activity, because he threw missiles and was there for five hours. Those submissions we have considered. We are unpersuaded that the sentence of 4 years which was passed upon him was excessive and accordingly his appeal is dismissed. 37. Raja pleaded guilty on 30th July 2002 and was sentenced by Judge Gullick on 6th September. He was present between 6 and 7 hours. He was seen making threatening gestures towards the police and, on four separate occasions, threw missiles between the police lines. He covered his face intermittently with a towel. He surrendered to the police in April 2002. Because of the deeply distressing circumstances surrounding his infant child, who sadly died in December 2002, Raja was released on bail, on the clear understanding that no inference was to be drawn from that as to what the ultimate outcome of this appeal would be. Mr Ryder submitted that Raja was in the same category as Mahmood, being involved above the minimum level. He drew attention to the fact that the appellant has a disabled younger sister, whom Raja looks after. He refers to impressive written references speaking of Raja's character. 38. In our judgment, there is no distinction to be drawn between Raja and Mahmood. We cannot accede to a submission that a sentence of 4 years upon him was manifestly excessive. Accordingly his appeal must be dismissed. 39. Maskin, as we have said, pleaded guilty to violent disorder. He did so at the first opportunity, on 26th March 2002. He was sentenced by Judge Bartfield on 10th May. He was, as earlier indicated, a participant in the early disturbances in Infirmary Fields, which involved, initially, some 20 people. In the course of that, he was seen to make a gesture at the police and, on two other occasions, he threw stones towards the officers. He voluntarily surrendered after his picture was in the local papers. He declined to comment on his part when he was interviewed. 40. Mr Ryder submitted that the sentence which was passed upon Maskin, having regard to his comparatively small role in the early incident, was higher than it needed to be. We agree. We give Maskin leave to appeal against sentence. We quash the sentence of 2 years and 9 months and substitute for it a sentence of 2 years. 41. Shazad Ali pleaded guilty on 14th May 2002 and was sentenced by Judge Gullick to 4 years on 5th July. On several occasions, over a 20 minute period, he was seen throwing missiles. He was depicted in a video. He was, at one stage, masked. He surrendered to the police on 9th February 2002, after his photograph had appeared in the local press. He denied at that time that it was a photograph of him, but he, in due course, pleaded guilty at the first opportunity. He was born in May 1980 and is of good character. He is, as Miss Mylvaganam points out, the senior male in the family because his mother, unusually in this community, is divorced. He is the backbone of the family. He has written a letter to the Court which we have read and Miss Mylvaganam relies on character references upon Ali. Those references include an indication that he was a highly motivated student for whom a university place was available. Having regard to all of these matters and, in particular, the short period for which he was involved in this incident, we take the view that the sentence of 4 years imposed by the learned judge was longer than it need have been. We give leave to appeal. We allow the appeal. We quash that sentence and we substitute for it a sentence of 3 years' imprisonment. 42. Pandoor pleaded guilty on 23rd July 2002. He was sentenced by Judge Scott on 16th August to 4 years' imprisonment. His first involvement was at about 6.30 pm and he remained in the crowd until the early hours of the following morning. On three separate occasions, at about 9.00 pm, when he was wearing a mask, he threw a missile at the police. At about 11.00 pm, again, he threw a missile and, again, shortly after midnight, when he was wearing a different coloured mask, he threw another missile at the police. Video film shows him at or near the front of those confronting the police, on a number of separate occasions. 43. He did not surrender. He was arrested. Following arrest he made frank admissions. He was of good character. 44. Mr Ryder submitted that Pandoor should not have received a sentence of 4 years. He points out, rightly, that Judge Scott specifically referred to the underlying causes of the riot. In our judgment, there was nothing wrong with the sentence passed upon Pandoor and accordingly we refuse him leave to appeal. 45. Latif pleaded guilty on 12th December 2001 and was sentenced to 4 years 9 months by Judge Gullick on 15th February 2002. Latif was present for a three hour period. He was seen once with a metal bar in his hand, and on a number of occasions he threw stones at the police lines. He surrendered to the police in August, after a picture had appeared in newspapers which resembled him. He said it was not him because, he claimed, he had been either at work or in Birmingham. Those false alibis had to be investigated. Eventually, in November, he made full admissions and expressed remorse. He was born in November 1968. He has no relevant previous convictions as an adult. 46. Mr Ryder, on Latif's behalf, draws attention to written references upon him and to the pre-sentence report. In our judgment, his participation in these events was at a slightly higher level than those defendants with whom, so far, we have dealt. We are unable to accept that the sentence of 4 years and 9 months was manifestly excessive. His renewed application is therefore refused. 47. Azad pleaded guilty on 25th May 2002 and was sentenced by Judge Gullick on 21st June. He was around between 5.00 pm and shortly after midnight. On a number of occasions he was seen to throw stones and missiles at the police, one of which hit the shields of one of the officers. He was also seen near a burning barricade and near an overturned car. He was at or near the front of the rioters throughout. On occasions he was hooded. On others his sweater was pulled up to conceal his face. He was taken home by his father. But, as we have said, by that time he had been there for some seven hours. 48. He surrendered to the police following the publication of his picture in the local paper. He expressed remorse and admitted taking part in these events. He was born in February 1976. He is of good character. 49. On his behalf, Mr Ryder draws attention to the fact that he surrendered and was not a participant in looting or arson and to the contents of the pre-sentence reports. In our judgment, the role of this defendant was rightly assessed at a level higher than that of those least involved. Accordingly, we refuse leave to appeal against his sentence of 4 years and 9 months. 50. Hussain pleaded guilty on 16th April 2002 and was sentenced by Judge Gullick on 1st July. He was first seen with a large group of men in a park, and he there threw a missile towards the police. He was present, among the hostile crowds, for about eight hours, and he was repeatedly throwing missiles at the police. At one stage, he left for a meal and then returned to the riot. He was seen with a stone or brick in his hand, and he pulled up the hood on his jacket to try to conceal his identity. He was later seen at the front of the crowd, with a stone in his hand about to throw it but, as the police advanced towards the crowd, he melted back. He surrendered in January 2002, and said he could not remember the extent of his involvement but, when he was shown the video which had been made of him, he made full admissions. He was born in May 1975. He has no relevant previous conviction. He is described in the pre-sentence report as showing little remorse, although in a letter he has expressed regret. There are three character references upon him. 51. The submission by Mr Ryder is that there may well have been some untoward lack of harmony between Hussain and the probation officer who made the pre-sentence report upon him. That we take into account. We are, however, unpersuaded that the sentence of four-and-a-half years passed upon him was manifestly excessive. Accordingly his renewed application is refused. 52. Hanif pleaded guilty on 8th May 2002 and was sentenced on 14th June by Judge Gullick to 4 years and 9 months. He participated for over 2 hours and, on six separate occasions threw stones, or other missiles, at the police. He was also involved in an attack on a police van and picked up a metal fence, which he threw at a police van. He was hooded for most of the time. He encouraged others with victory gestures. He surrendered in January 2002, and admitted throwing stones, he said, because everyone else was. He was born in September 1979. Save possibly for one offence of obstructing the police, he has no previous relevant convictions. 53. On his behalf, Mr Ryder draws attention to the explanation given by Hanif to the officer who prepared the report upon him as to his presence, namely because of the British National party and its activities. We are unpersuaded that the sentence of 4 years and 9 months was a manifestly excessive sentence having regard to his role in these events. Accordingly his renewed application for permission to appeal is refused. 54. Qurban pleaded guilty on 17th April 2002, and was sentenced by Judge Gullick on 28th May. He participated for a period of 4 hours or so and was seen to throw a total of nine missiles at the police. He was also videoed brandishing a large light tube, not so much as a weapon, but, no doubt, by way of encouragement to others. He surrendered in August 2001. He admitted being in the city centre but denied throwing missiles. He denied, initially, that he was the person who looked like him in the video. The explanation for that denial was, he said, that he had actually been out drinking and did not want his parents or his family to know about that. He was born in June 1980. He was of previous good character. His pre-sentence report stresses his remorse, and there are three character references which speak well of him. 55. Mr Ryder submitted that the sentence of 4 years and 9 months was manifestly excessive. We do not agree. Accordingly it becomes unnecessary to consider whether it would be appropriate to grant an extension of 12 weeks which is needed for the purposes of his application. In our judgment, there is no arguable ground for appeal and his renewed application is refused. 56. Khalil pleaded guilty on 13th November 2001 and was sentenced by Judge Scott on 5th December. He was present for about 3 hours. He was seen carrying a road sign as a makeshift shield on two separate occasions. He was twice seen throwing missiles at police officers. He carried burning debris on one occasion and he tried to ignite something which was in his hand on one occasion. He was seen at the rear of a vehicle which others were trying to set fire to and was seen to place objects in the rear of that vehicle. He rolled a beer barrel towards the police lines. He held a petrol bomb in his hand. Another person ignited it, the applicant rushed towards the police lines and threw the bomb directly at the officers. He was then, unsurprisingly, followed by a police helicopter and that led to him being arrested at or not far from the scene. He made no comment in interview. 57. He was born in October 1972. He has a previous conviction for obstructing the police, but no conceivably relevant other convictions. The prison report speaks of him presenting no problems. 58. Mr Myers, on his behalf, submits that the judge must have taken too high a starting point and erred in expressly withholding the full credit for a guilty plea. Mr Myers drew a distinction between the way in which the judge apparently accorded full credit to another defendant called Shah, who appeared with him in the dock. It is apparent, from what Mr Myers told us that that defendant, who was sentenced to 4 years, was younger, of good character and his involvement in these events was conspicuously less than that of Khalil. 59. In our judgment, the sentence of six-and-a-half years passed upon Khalil, however unhappily expressed the judge's words in relation to giving of discount may or may not have been, was an appropriate one. It certainly cannot be said that it was arguably manifestly excessive. Accordingly, his renewed application is refused. 60. Khan pleaded guilty on 12th April 2002. He was sentenced by Judge Bartfield on 10th May. He went to the city centre at about 1.00 pm to protest against the British National Party. He was seen first on video at 1.15, in the city centre, behaving perfectly peacefully and responsibly. A little after 8.30 pm, by which time he had changed some of his clothes, he was in White Abbey Road throwing missiles at the police. At about 8.45 he was carrying a milk crate towards a metal fencing, which had been placed in the road by rioters. He was one of a large group which damaged a motor vehicle, although he was not himself seen to be doing any damage. Later he was seen, with a mask on the lower part of his face, helping to erect a barricade in the road by placing a metal barrel and road sign in the roadway. He was also seen carrying a wooden stick. At about 9.30 he was again seen on the video, throwing missiles towards the police lines. He surrendered to the police, after his picture had appeared in the newspapers. He initially lied about his involvement and asked to go on an identification parade although that was not ultimately pursued. He pleaded guilty at the first opportunity. 61. He was born in December 1980. He has no relevant previous convictions. Character references speak of him working hard at college. The learned judge, in passing sentence, said that the full discount was not appropriate, because he had not admitted his participation at the outset. 62. Mr Ryder drew attention to the terms of the pre-sentence report and to the fact, as is plain from the proper way in which he was initially behaving, that he was, at the outset, no more than a spectator. He became, later in the evening, in the way which we have described, far more than a spectator. We are unpersuaded that the sentence of 5 years which was passed upon him, was arguably manifestly excessive. Accordingly his renewed application is refused. 63. Raza pleaded guilty on 27th March 2002, and was sentenced thereafter by Judge Gullick. He was present for just over 5 hours. He was seen on a number of occasions in a group of hostile youths, at the front of the group, the group throwing stones at the police. He himself threw missiles several times, and on one occasion was seen apparently instructing others how to damage a car, which was subsequently set on fire and pushed towards the police lines. He is repeatedly depicted in the videos, in the front line of those facing the police. He made, having surrendered in February 2002, on return to this country from abroad, frank admissions to the police and expressed his remorse. He was born in September 1980. He was of good character. There are six character references upon him. The prison report upon him indicates that he has presented no problems. 64. On his behalf, Mr Ryder submits that a sentence of 5 years was excessive. We are unable to agree, having regard to the length of time during which this applicant was present and that which he did. In those circumstances, his renewed application is refused. 65. MR MANSFIELD: If I detain you just for a moment. As your Lordships are aware there were a large number of cases here, certainly in relation to those that I represent there were 12. I appreciate in four cases leave has been granted and people represented and I would ask your Lordship consider, in those cases, bearing in mind the background, and the matters of public importance so far as sentencing is concerned that are raised in that matter, that your Lordship would consider extending legal aid in one of two ways. One, to cover my instructing solicitor in preparation, as your Lordship has seen, in relation to bundles and also in terms of my own presence. 66. THE VICE PRESIDENT: In relation to four matters on which you succeeded. (Pause) Yes, Mr Mansfield.

2003_01_30-9.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/194/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/194

3936c377f246a3ec55074a8d13b9cb827f1feb2777ec1ab7e1d8a4c60c3defd7

[2023] EWCA Crim 371

EWCA_Crim_371

2023-03-07

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION Case No: 2022/02682/A1 [2023] EWCA Crim 371 Royal Courts of Justice The Strand London WC2A 2LL Tuesday 7 th March 2023 B e f o r e: LORD JUSTICE BEAN MRS JUSTICE FARBEY DBE MR JUSTICE CHAMBERLAIN ____________________ R E X - v - L N ____________________ Computer Aided Transcription of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _____________________ Mr J Bartfeld KC and Miss Lee appeared on behalf of the Applicant ____________________ J U D G M E N T Tuesday 7 th March 2023 LORD JUSTICE BEAN: I shall ask Mr Justice Chamberlain to give the judgment of the court. MR JUSTICE CHAMBERLAIN: 1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of the offences. This prohibition applies unless waived or lifted in accordance with section 3 of the Act. 2. On 19 th April 2022, in the Crown Court at Woolwich before His Honour Judge Mann, the applicant pleaded guilty to a series of sexual offences against one victim, "D", and to one offence against another victim, "A". Both were children at the time of the offences and were members of his extended family. 3. The applicant was a GP and a respected member of the community. On 10 th August 2022, the applicant (who was then 79 years old) was sentenced to a total of 15½ years' imprisonment, with two additional years on licence, pursuant to section 278 of the Sentencing Code. Three additional charges (counts 3, 13 and 15 on the indictment) were ordered to lie on the file. 4. The applicant sought leave to appeal against sentence. He contended that the total of 15½ years was manifestly excessive. Leave was refused by the single judge and is now renewed before the full court. 5. The applicant committed all but one of the offences against the victim D. Over a period of years, when she was between the ages of about 4 and 10 or 11, the applicant touched her vagina with his fingers on many occasions, penetrated her vulva and touched her clitoris. He also made her touch or masturbate his penis, sometimes to ejaculation. When she was 12, he made her masturbate him until he ejaculated into a bowl of porridge, which he made her eat. These assaults took place in the bathroom, bedroom and kitchen of the victim's home. 6. The offences were committed before the coming into force of the Sexual Offences Act 2003. The judge correctly noted that he could not impose sentences higher than the maxima available at the time when the offences took place, but recognised that he was obliged to take into account the sentencing guideline for the equivalent modern offences. He explained the equivalences as follows: Counts 2, 6, 7, 10, 12 and 14 were charged as indecent assault, contrary to section 14(1) of the Sexual Offences Act 1956, which carried a maximum sentence of five years' imprisonment. Some of those counts involved penetration of the vagina. Accordingly, the provisions of section 278 of the Sentencing Code applied. If charged today, they would be assault by penetration of a child under 13. The starting point would be 11 years' custody, with a range of seven to 15 years, if the offence was category 2A; and 16 years, with a range of 13 to 19 years, if the offence was category 1A. The culpability was certainly in category A, because of the abuse of trust. The harm, the judge said, was at least category 2, because of the victim's extreme youth and because of the severe psychological damage which the offences had caused. 7. Count 8 was also charged as indecent assault. Because it did not involve penetration, today it would be charged as sexual assault of a child under 13, and categorised as 1A, giving a starting point of six years' custody, and a range of four to nine years. 8. Count 1 was charged as indecent assault, and counts 4, 5, and 11 as indecency with a child, contrary to section 1(1) of the Indecency with Children Act 1960, which carried a maximum sentence of two years' imprisonment. If charged today, all would be causing or inciting a child under 13 to engage in sexual activity, which would fall into at least category 2A, the judge said, giving a starting point of eight years' custody, and a range of five to ten years. 9. Count 9 was also charged as indecency with a child, but today would be sexual activity in the presence of a child, category 1A, with a starting point of four years' custody, and a range of three to six years. 10. Count 16 in relation to victim A would be sexual activity with a child under 13 – category 2A or 3A, giving a starting point of one year's custody, with a range of six months to two years. 11. The judge explained that he had structured his sentence so as to arrive at the correct total term. The sentences he imposed were as follows: on count 1, three and a half years' imprisonment (reduced from four to reflect credit for the guilty plea); on count 2, three and a half years' imprisonment (reduced from four), plus one year's extended licence period under section 278 of the Sentencing Code; on count 4, 12 months' imprisonment (reduced from 14 months); on count 5, 12 months' imprisonment (reduced from 14 months); on count 6, three and a half years' imprisonment (reduced from four), plus one year's extended licence; on count 7, three and a half years' imprisonment (reduced from four), plus one year's extended licence; on count 8, three years' imprisonment (reduced from three and a half years); on count 9, 12 months' imprisonment (reduced from 14 months); on count 10, three and a half years' imprisonment (reduced from four), plus one year's extended licence; on count 11, 12 months' imprisonment (reduced from 14 months); on count 12, three and a half years' imprisonment (reduced from four), plus one year's extended licence; on count 14, three and a half years' imprisonment (reduced from four), plus one year's extended licence; and on count 16, 12 months' imprisonment (reduced from 14 months). 12. The judge indicated that the sentences on counts 12 and 14 would be consecutive, making a total sentence of seven years, plus two years extended licence, under section 278. The sentences on counts 2, 6, 7 and 10 would run concurrently with each other and with the sentences on counts 12 and 14. The sentences on counts 8 and 9 would be consecutive to the sentences on counts 12 and 14, giving a running total of 11 years, with two years' extended licence. The sentence on count 1 was ordered to run consecutively to all the preceding sentences, giving a running total of 14½ years, with two years' extended licence. The sentences on counts 4, 5 and 11 were ordered to run concurrently with each other and with the preceding sentences. The sentence on count 6 was ordered to run consecutively, giving a total of 15½ years' imprisonment, with two years' extended licence in respect of counts 12 and 14. The judge said that the applicant would be on the Sex Offenders Register and subject to a Sexual Harm Prevention Order for life. He also made an indefinite restraining order. 13. For the applicant, Mr Jason Bartfeld KC submits that the sentence was too long overall for five reasons: first, the judge placed the offences in the highest category (1A), or too high within the range for category 2A, potentially as a result of the prosecution's over-zealous analysis of the harm and culpability features in the guideline; second, he gave insufficient weight to the applicant's age, ill-health, and therefore the difficulty he would encounter in custody; third, he gave insufficient weight to the impact of the sentence on the applicant's elderly wife; fourth, he adopted uncritically the prosecution's analysis of the fact that the applicant had paid compensation to complainant D; and fifth, he gave insufficient weight to the long period of time that had passed since the offences were committed and to the evidence of the applicant's character. 14. We say at once that we have carefully considered the judge's sentencing remarks. Like the single judge, we do not accept any of these criticisms. There can be no doubt at all that the offending was in culpability category A, because it involved a grave abuse of trust. As to harm, D's victim personal statement describes the effect that the offending has had on her. It describes her daily struggle and gives details of poor sleep, depression, suicidal ideation and problems in relationships. She describes the offending as "degrading and relentless"; it took place, among other places, in her bedroom, where she should have felt safe. There has been an ongoing effect on her mental health over many years. 15. The compensation issue did not figure in the judge's remarks as a major consideration. In our view, even without taking it into account at all, the offending fell into either category 1 or right at the top of category 2. 16. The judge made clear that he had taken the applicant's age and health into account, and had also had regard to the effect on the applicant's elderly wife. As to the latter, however, a very substantial sentence was inevitable, and alternative arrangements for her care would have to be made. 17. The judge also bore in mind the applicant's lack of previous convictions, and the fact that these offences stretched back almost 40 years. But he was entitled to regard those matters as of relatively little weight, given the extended period over which this offending had taken place. While living an outwardly respectable life, the applicant had repeatedly committed serious offences against D which, as a GP, he must have known were likely to cause serious harm to his young and vulnerable victim. 18. In fixing the overall length of sentence, we can detect no error of approach in the judge's sentencing remarks; and we do not consider it arguable that sentences totalling 15½ years were manifestly excessive. The contrary, in our judgment, is not arguable. 19. However, the way the overall sentence was pronounced did involve an error. A sentence under section 278 of the Sentencing Code is a single, indivisible sentence, comprising a custodial term and an extension period: see R v LF [2016] EWCA Crim 561, [2016] 2 Cr App R(S) 30 at [19] to [24]. The sentences under section 278 should, therefore, have been pronounced separately from the standard, determinate sentences. As this court said in R v Ulhaqdad [2017] EWCA Crim 1216, [2017] 2 Cr App R(S) 46, at [31], where there is a mix of sentences, the standard determinate sentences should be pronounced first, with sentences under what is now section 278 of the Sentencing Code passed as consecutive sentences. 20. The total sentence of 15½ years' imprisonment should accordingly have been structured as follows: first, standard determinate sentences of three years and six months' imprisonment on count 1; three years consecutive on count 8; one year consecutive on count 9; and one year consecutive on count 16, giving a total determinate sentence of eight years and six months' imprisonment. The determinate sentences for counts 4, 5 and 11 remain unaltered. They are to be served concurrently with the other determinate sentences. 21. Second, sentences for an offender of particular concern, under section 278 of the Sentencing Code, of three years and six months' imprisonment, with an additional year's licence period for count 12, will run consecutively to the determinate sentences we have mentioned; and three years and six months, and an additional one year's licence period, to run consecutively on count 14, giving a total for counts 12 and 14 of nine years, comprising an aggregate custodial term of seven years, and aggregate further licence periods of two years. 22. The sentences for counts 2, 6, 7 and 10 remain unaltered and are to be served concurrently with the other section 278 sentences. 23. The judge was clearly under a misapprehension as to the length of time to be served before the applicant would be considered for parole. He and counsel both thought that the effect of his sentences was that the applicant would be entitled to be considered for release at the halfway point – that is to say, after seven years and nine months. In fact, because the sentencing exercise took place after 26 th June 2022, the applicant would have to serve two-thirds of the sentences passed under section 278. This error, unfortunate though it was, occurred after the judge had passed sentence. The effect of the release provisions was clearly not taken into account in setting the overall term. The judge was correct as a matter of law to regard the effect of the release provisions as irrelevant to the sentence: see R v Patel [2021] EWCA Crim 231, [2021] 2 Cr App R(S) 47, at [42]. They are also irrelevant to our task today. 24. However, it is important that there should now be clarity about the point at which the applicant is entitled to be considered by the Parole Board for release. That is calculated by taking half of the total determinate sentence and two-thirds of the total sentence imposed under section 278, because of the effect of section 244A of the Criminal Justice Act 2003. This means that the applicant will be entitled to be considered for release after eight years and 11 months from the start of the sentence. 25. We accordingly grant leave to appeal and allow the appeal to the extent of substituting the sentence we have described for that imposed by the judge. __________________________________ 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] ______________________________

2023_03_07-5600.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/371/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/371

95c1c6f209e65b35a5d80c90e0c268bc131b18d888d9b185ff4960c49b2f967c

[2023] EWCA Crim 162

EWCA_Crim_162

2023-02-02

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2023] EWCA Crim 162 CASE NO 202203601/A1 Royal Courts of Justice Strand London WC2A 2LL Thursday 2 February 2023 Before: LORD JUSTICE COULSON MRS JUSTICE CUTTS DBE HER HONOUR JUDGE MUNRO KC (Sitting as a Judge of the Court of Appeal Criminal Division) REX V SCOTT COWELL __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ Ms O’Kane appeared on behalf of the Appellant _________ J U D G M E N T 1. LORD JUSTICE COULSON: This is another appeal primarily concerned with the guideline on the imposition of community and custodial sentences ("the relevant guideline") and whether or not the sentence imposed on the appellant should have been suspended. 2. The appellant is now 33. On 27 July 2020 he pleaded guilty to one count of breach of a non-molestation order and one count of assault by beating. There were delays because, amongst other things, the appellant served a term of imprisonment for a separate offence and was also involved in another trial on another matter. 3. On 9 November 2022 in the Crown Court at Luton, before Ms Recorder Powell KC ("the judge") the appellant was sentenced to 12 months' imprisonment for breach of the non-molestation order, with no separate penalty for the assault. That was a term of immediate imprisonment. He appeals against that sentence with leave of the single judge. The appeal is based on the submission that either there should have been a community order, or that any term of imprisonment should have been suspended. 4. The complainant Ms Patel is the appellant's ex-partner. Their relationship began in 2018 and a daughter was born in August 2019. Thereafter the relationship deteriorated quickly and on 12 November 2019, a non-molestation order was imposed by Watford Family Court. That order prohibited the appellant from using or threatening violence against Ms Patel, sending threatening communications to Ms Patel, or from going within 100 metres of an address where the appellant knew Ms Patel was residing. 5. Just as the first pandemic lockdown began in March 2020, the judge found that the appellant had unilaterally decided to move back in with Ms Patel. The judge said she had no doubt that the appellant put pressure on Ms Patel to give him her address and to allow him to visit her there and to stay. The judge also said that she was "entirely satisfied that she [Ms Patel] did not freely consent to you being there." 6. The appellant went to her address in mid-March 2020 and then again on 27 March when he stayed for a number of days. All that of course was in breach of the non-molestation order, which was count 1. 7. The events surrounding count 2 are these. On 2 April 2020 the appellant became furious that Ms Patel had not done the washing up. He shouted at her, which caused her to cry. She went into her bedroom to lie on the bed. The appellant followed her in and was clearly angry. He lifted the bed frame off the ground so that she was tipped out of bed and fell on the floor. It appears that she was so frightened that she did not move from where she lay. The appellant's reaction was to laugh at her. 8. Unsurprisingly Ms Patel then wanted the appellant to leave the property but he did not leave. Therefore on the following day Ms Patel messaged a friend with a pre-agreed codeword to indicate that the friend should call the police. The police arrived at the address and the appellant was arrested. 9. The judge when sentencing the appellant noted that he had no insight into the seriousness of his behaviour. She said: "Compliance with court orders is not optional. Tipping a woman out of her own bed in anger and frustration at her not doing, in your eyes, sufficient housework in her own home is not nice; it's not a joke. It is abusive, it is controlling and it is an assault." 10. The judge had regard to the sentencing guidelines for breach of the non-molestation order and the over-arching guidelines on domestic abuse. The judge found that the culpability was high because this was a persistent and repeated breach of the non-molestation order. The appellant had not only attended Ms Patel's address and stayed, but he had continued to stay even after he had assaulted Ms Patel and she had made clear that she wanted him to leave. The judge said that harm was in Category 2. She noted that even two years later Ms Patel's distress was "absolutely clear". 11. The judge found that this was a Category 2A case in accordance with the guidelines, with a starting point of one year's custody and a range of a high level community order to two years' custody. 12. The judge identified the factors which increased the seriousness of the failure to comply with the non-molestation order, in particular that the appellant had used contact arrangements in respect of the child to instigate the offence. Furthermore, because the judge considered the breach of the non-molestation order as the primary offence, she took the assault by beating into account as an aggravating factor in respect of the offence of breach. As the judge said, there were no factors reducing seriousness. 13. The judge said that after a trial the notional determinate term in respect of these offences was 16 months. Because of his guilty plea at the PTPH that was reduced by 25 per cent to a term of 12 months' imprisonment. 14. The judge expressly referred to what we have called the relevant guideline. She said that she had carefully considered the proposal in the pre-sentence report that a community order be imposed, but she concluded that the custody threshold was passed. As to whether or not it should be suspended, the judge said: "This matter is so serious that only an immediate custodial sentence can be justified." 15. We shall come back to the issue of suspension in a moment, but it is as well to start with some of the other criticisms of the judge's sentence at the outset. 16. In her careful submissions to this court, Ms O'Kane maintained that the correct category in respect of the breach was Category 2B, namely a deliberate but not a persistent breach. We do not accept that submission. The non-molestation order was repeatedly ignored by the appellant throughout the second half of March and into April 2020. That was therefore much more serious than a deliberate one-off breach. Court orders must be complied with. 17. That also explains why, in our view, the judge was right to conclude that the custody threshold had been passed. It was simply not appropriate to deal with persistent breach of the court's order by way of a community sentence. 18. There was a suggestion that the judge had no proper reason to set the starting point at 16 months, given that the guideline suggested a starting point of 12 months. We do not agree with that. The judge indicated the reasons why she went four months higher than the recommended starting point. One was because of the misuse of the contact with the child. The other was, as she explained, that she was taking the assault into account as an aggravating factor so as to arrive at one composite sentence which reflected all the appellant's offending. In this way therefore we consider that the uplift from 12 to 16 months in respect of the breach was entirely justified. 19. Ms O'Kane focused her submissions this morning on that aspect of the judge's sentencing exercise which led her to conclude that only immediate custody was appropriate. Ms O'Kane said that the judge should have had express regard to the table in the relevant guideline which, on the left, lists the three factors indicating that it would not be appropriate to suspend a custodial sentence and, on the right, the three factors indicating that it may be appropriate to suspend the sentence. The guideline states that those six factors "should be weighed in considering whether it is possible to suspend the sentence." 20. The factors indicating that it may be appropriate to suspend are a realistic prospect of rehabilitation, strong personal mitigation and that immediate custody will result in significant harmful impact upon others. Factors indicating that it would not be appropriate to suspend are that the offender presents a risk or danger to the public, that appropriate punishment can only be achieved by custody and that there is a history of poor compliance with court orders. 21. We accept Ms O'Kane's criticism of the judge that she only referred expressly to one of these six factors: her conclusion that appropriate punishment could only be achieved by a sentence of immediate custody. In our view it is always appropriate for a sentencing judge to go through these six factors as part of the sentencing exercise. That is not, we stress, a mindless box-ticking exercise. On the contrary, it is a good discipline for a sentencing judge to have these factors in mind and to consider each expressly to see whether or not this is a case where, on balance, immediate custody can be avoided. 22. Moreover, in this case, Ms O'Kane raised, at the end of the sentencing hearing, a subsequent question with the judge as to whether or not she had had regard to the factors in the table. The judge said that: "... there are no exceptional circumstances that mean that suspension would be appropriate in this case." 23. To the extent that the judge thought that that was the right test - a need to show exceptional circumstances to justify suspension - then the judge was wrong. What matters is the weighing up of the factors in the table in the relevant guideline, to which we have already referred. 24. In those circumstances, it seems to us appropriate for this court to redo the exercise having regard to the factors in the table. We start with those factors indicating that suspension may be appropriate. Given the judge's findings during her sentencing remarks, particularly that relating to the appellant's lack of insight, it is not easy to say that this is a case where there was a realistic prospect of rehabilitation. We note however the optimistic note sounded in the pre-sentence report. As to other factors, there is no strong personal mitigation in this case. Moreover, immediate custody would not result in significant harmful impact upon others. Therefore none, or perhaps one (namely rehabilitation), of those factors indicating that it may be appropriate to suspend the sentence were in place here. 25. On the other side of the balance sheet, it is clear that the appellant presented a risk, at least to Ms Patel. Moreover, there was a history poor compliance with court orders. The whole point of the non-molestation order was to protect Ms Patel from the appellant, and he ignored it. 26. Finally, of course, the factor that the judge did rely on, namely that immediate custody was the only appropriate punishment in this case, is very much in play. That can often be the critical factor in cases like this, even if one or more of the factors on the other side of the equation are also present: see for example R v Ross John Middleton [2019] EWCA Crim 663 and R v S [2022] EWCA Crim 1362 . On the facts of this case, the judge concluded that appropriate punishment could only be achieved by a term of immediate imprisonment. In all the circumstances, and having expressly carried out the necessary balancing exercise, we agree with that assessment. 27. The issue in this case, like the issue in so many of these cases, is not, as Ms O'Kane's written submissions has it, as to whether the sentence “could and should have been suspended”. All sentences below two years could be suspended. The only question is whether they should be. That question must be answered by the application of the table in the relevant guideline to the facts of each case. In our view, when doing that exercise in this case, the result points unequivocally to the term of immediate custody imposed by the judge. 28. For those reasons, whilst acknowledging Ms O'Kane's helpful submissions this morning, we dismiss this appeal. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]

2023_02_02-5565.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/162/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/162

7d8dc9c2b8a9c40d6f3d2b26e2694d5cdff8e177f589152931b527497c8ff794

[2023] EWCA Crim 528

EWCA_Crim_528

2023-04-26

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202203583/A3 [2023] EWCA Crim 528 Royal Courts of Justice Strand London WC2A 2LL Wednesday 26 April 2023 Before: LADY JUSTICE THIRLWALL DBE MRS JUSTICE STACEY DBE MR JUSTICE BENNATHAN REX V MICHAEL JOHN HARRIS __________ 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 A TURTON appeared on behalf of the Appellant. _________ J U D G M E N T (Approved) 1. MRS JUSTICE STACEY: On 2 December 2022 the appellant (then aged 48) appeared before the Crown Court at Teesside before HHJ Carroll and was sentenced to a total of 32 months' imprisonment for five offences of failure to comply with the sex offender notification requirements on five occasions, contrary to section 91(1)(a) and (2) of the Sexual Offences Act 2003. He had been committed for sentence by the Teesside Magistrates’ Court on 4 November 2022. The sentence was made up of 32 months for the first offence and 16 months consecutive sentences for each of the second to fifth offences. Leave to appeal was granted by the single judge. 2. The notification requirements had been imposed because of sex offences committed in 2011, when the appellant was aged 37. He was convicted of two offences of sexual activity, not including penetration, with a female child under 16 which occurred whilst he was working as a bus driver and had tried to kiss a 14-year-old passenger whom he had befriended, had touched her bottom, sent her text messages and followed her around her home village. He was sentenced to a 3-year community order and made subject to the sex offender notification requirements for a period of 5 years. The relevant requirements were that he must notify the police of any change in his name, of any address that he may reside at for more than seven days in one calendar year and details of any credit card or bank account. 3. In 2013 he committed two offences of failure to comply with the notification requirements for which he received a 12-month term of imprisonment. In January 2014, due to what was described as “concerning behaviour”, he was made subject to a sexual offence prevention order (“SOPO”) for a period of 5 years which was extended for a further 5-year period on 24 October 2018 as a Sexual Harm Prevention Order (“SHPO”). Under the terms of that order, he was subject to the same notification requirements of Part 2 of the Sexual Offences Act 2003. A breach of that order in 2017 was dealt with by way of caution. In 2018 he was sentenced to concurrent 12 months' terms of imprisonment for four failures to comply with the notification requirements. In September 2019 he was again in breach of the notification requirements in four respects and sentenced to a 2-year term of imprisonment. Since his release from that sentence, his Offender Manager initially completed six successful management reviews at the address the appellant had registered as his permanent address. But enquiries were commenced following a number of failed visits and concerns about compliance. Those enquiries revealed five failures to notify the police as he was obliged to do under the requirements. For a period of 22 months he had failed to notify the police of both a bank account and a credit card. He had opened and used a Facebook account for 10 months as “Michael John” and an Instagram account for "Mikey J 1974" for 16 months. For a period of 10 months he had failed to register the address where he had stayed over at weekends with a new partner whom he had met on Facebook. His new partner did not have children, and there was no evidence that he had had any contact with any children through her although he had met her parents and various relations. 4. The appellant pleaded guilty to all five offences at the earliest opportunity. No pre-sentence report was ordered and none was necessary and is not necessary now. The custody threshold had been passed and a suspended sentence would not be appropriate. 5. The sentencing judge considered the Sentencing Council Guidelines and assessed culpability as falling within level A (the highest level) because there were persistent and long-term breaches of the notification requirements against a background of previous breaches. As to harm, the judge concluded that the facts of the offending fell into the highest category of harm, level 1, because the police assessment was that there was a high risk which was aggravated by the non-disclosure of his past history to his new partner and her family. The judge described it as both a very high risk of harm and a very significant risk of distress. Under the Guidelines the starting point for category 1A is 2 years with a category range of 1 to 4 years. The judge decided to make concurrent sentences in accordance with the Totality Guidelines. For the first offence he increased the starting point to 4 years to reflect totality with the other offences and the previous convictions. He gave full credit for the guilty plea to reduce the sentence from 48 months to 32 months. For the remaining four offences he arrived at a sentence of 2 years from which he deducted 8 months reflecting a one-third for the early guilty plea, arriving at a finishing point of 16 months' imprisonment concurrent. 6. The appellant seeks to appeal the sentence on two grounds. Firstly, that it was wrong to conclude that this case fell into the highest category in the Sentencing Guidelines and that secondly, even within category 1A, too high a sentence was arrived at for the first charge. 7. There is no dispute that the appellant's culpability fell within category A. There was a long period of non-compliance which had started shortly after his release from custody, and the appellant had failed to notify a number of different areas: bank accounts, a registrable address and two social media accounts which had been set up with minor variations to the appellant's name. He had also failed to comply with his notification obligations in ten respects over the previous decade. There was no dispute that he well understood what was required of him. 8. As to harm, Mr Turton correctly observes that the appellant's new partner was understandably hurt to discover the appellant's history when the police informed her of it. She was shocked and disappointed as they had both agreed to be open and honest with one another, they got on well and the relationship seemed to be blossoming. It was a genuine relationship that had been subsisting for 17 months by that stage. There is no evidence that the appellant had been in contact with children through his new partner in breach of the SHPO. It cannot therefore be said that the breach itself amounted to very serious harm or distress. Nor does the statement from the appellant's police staff offender investigator state that the police assess him as being at high risk. The statement merely records the facts of the non-notification. 9. The Guidelines state that in assessing the risk of any harm posed by a breach consideration should be given to the original offences for which the order was imposed and the circumstances in which the breach arose. The facts of the original offence 11 years earlier do not themselves lead to a conclusion of high risk. The issue is whether the fact of the history of previous convictions for non-compliance with the notification obligations give rise to an inference of high risk, since this was not a case where it could be said that the breach itself caused serious harm. 10. In mitigation, the appellant had explained that he did not wish to disclose the fact of the order to his new partner for fear that it would scare her off and indeed, when she was informed of it, it had exactly that effect. 11. This was a difficult exercise for the sentencing judge, who had limited information before him in what was no doubt a busy list. We conclude that there was no evidence from which he could conclude to the criminal standard that the breaches by the appellant risked very serious harm or distress. The harm therefore properly fell into category 2, not category 1. The starting point for category 2A offences under the Guidelines is 1 year, with a range of 26 weeks to 2 years' custody. The judge was right to note that the previous convictions, the period of non-notification and the fact of five separate offences were seriously aggravating features and that there were no identified factors reducing seriousness or reflecting personal mitigation. However to arrive at a sentence (pre-guilty plea discount) of double the starting point of 4 years was manifestly excessive. To reflect all the circumstances of the case an increase from the starting point to 3½ years would be justified. It would take the sentence outside the category range, but would be justified on the facts and in particular the previous similar offences that had a deterrent effect. Full credit for the guilty plea at the earliest opportunity would reduce the sentence to 2 years and 4 months. We therefore allow the appeal, quash the sentence of 3 years for the first offence and replace it with a sentence of 2 years and 4 months. The sentences for offences 2 to 5 are unaffected. 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]

2023_04_26-5648.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/528/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/528

cb00ff3343430c65093638abe2c9e579ce0e227bd2873df287c5a7903ae92c34

[2013] EWCA Crim 1849

EWCA_Crim_1849

2013-10-24

crown_court

Neutral Citation Number: [2013] EWCA Crim 1849 Case No: 201204321 B3 and 201204253 B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Plymouth Crown Court - Mr Recorder Still Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/10/2013 Before : LORD JUSTICE PITCHFORD MR JUSTICE KEITH and MR JUSTICE LEWIS - - - - - - - - - - - - - - - - - - - - - Between : WILLIAM PRESS ALEXANDER THOMPSON 1 st Appellant 2 nd Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2013] EWCA Crim 1849 Case No: 201204321 B3 and 201204253 B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Plymouth Crown Court - Mr Recorder Still Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/10/2013 Before : LORD JUSTICE PITCHFORD MR JUSTICE KEITH and MR JUSTICE LEWIS - - - - - - - - - - - - - - - - - - - - - Between : WILLIAM PRESS ALEXANDER THOMPSON 1 st Appellant 2 nd Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Robert Linford (instructed by Julian Jefferson - Solicitors ) for the 1st Appellant Nicholas Lewin ( instructed by Alan Harris - Solicitors ) for the 2 nd Appellant David Gittins and H Verheijen (instructed by CPS ) for the Respondent Hearing date: 9 October 2013 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pitchford : Introduction 1. This is an appeal against conviction with the leave of the single judge. The appellants faced an indictment containing three counts. In count 1 they were charged jointly with causing grievous bodily harm to Martin Jones with intent to cause him grievous bodily harm, contrary to section of the 18 Offences Against the Person Act 1861 . In count 2 they were charged in the alternative with inflicting grievous bodily harm on Martin Jones contrary to section 20 of the 1861 Act . In count 3 they were charged with attempting to cause grievous bodily harm to Ray Simmons with intent to cause him grievous bodily harm. 2. On 24 November 2011 the appellant Press pleaded guilty to count 3. The trial commenced on 18 June 2012 at Plymouth Crown Court before Mr Recorder Geoffrey Still. On 26 June both men were convicted upon count 1 and the appellant Thompson was convicted upon count 3. No verdict was required upon count 2. Upon count 1 Press was sentenced to 6 years imprisonment and Thompson to 8 years imprisonment. Upon count 3 Press was sentenced to 4 years imprisonment and Thompson to 3 years imprisonment. The Recorder ordered that all sentences should be served concurrently. 3. Press has leave to advance a single ground of appeal, namely that the Recorder wrongly gave to the jury a qualified good character direction the effect of which was to undermine the credibility of Thompson. Since there was no conflict between the cases of the two appellants the Recorder’s misdirection had a consequential impact upon the safety of the verdict in Press’ case. He seeks to renew a further ground of appeal in respect of which the single judge refused leave, namely that the Recorder, having correctly directed the jury upon the issue of joint enterprise, gave a confused direction in response to a note from the jury in retirement defining a route by which they might find Press guilty upon count 1 on which the prosecution had not relied in the course of the trial. 4. Thompson has leave to advance grounds that the Recorder misdirected the jury upon the issue of his lies in interview, misdirected the jury upon the facts and wrongly provided the appellant with a qualified good character direction. Secondly, he renews his application for leave in respect of an allegation of judicial bias, a reference by prosecuting counsel to factual material which was not in evidence and the Recorder’s further direction to the jury on the issue of joint enterprise in response to the note from the jury. Thirdly, he seeks to advance a further ground of appeal, namely that the Recorder did not direct the jury as to the effect of intoxication and/or post-traumatic stress disorder upon the issue of intent in counts 1 and 3. Fourthly, the Criminal Appeal Office raised for counsel’s attention the question whether and to what extent expert evidence of the Thompson’s post-traumatic stress disorder was relevant to their consideration of the defence of self-defence, and whether the jury was provided with appropriate directions. Evidence at Trial 5. The appellants were soldiers in 9 Regiment REME, stationed at Bickley Barracks in Chippenham. On 1 December 2010 they travelled with other soldiers to HMS Raleigh in Plymouth for a one day training course. At the end of the day they were off duty in Plymouth. Transport was to return them to barracks some time after 3 am. The complainants, Martin Jones and Ray Simmons, were Royal Marines stationed in Plymouth who had also been out for the evening. All four men had been drinking. 6. Shortly before 3.30 am Jones and Simmons went to a burger vendor stall (during the trial called the “burger van”) situated in the street behind the Oceana club. Serving at the van was Robert Mackey. It was common ground that Mr Mackey was independent of all four men, serving in the normal course of his work, and sober. Mr Mackey gave evidence that two men, who must have been Jones and Simmons, approached the van and ordered food. At this time no-one else was in the vicinity. He handed a burger to Jones and was cooking chips for Simmons. About two minutes later the appellants arrived at the van. Mr Mackey heard no words exchanged between the four men until he heard a shout, “Do you want some?” Jones and Simmons were immediately attacked by the appellants. When Mr Mackey turned towards the sound of the raised voice the complainants were already on the floor being kicked. Mr Mackey made a radio call for security. Press ran away and Thompson was detained at the scene by security men, presumably from the Oceana club, wearing fluorescent jackets. 7. Street CCTV film captured the attack from a moment after the complainants went to the ground. Jones and Simmons were on the ground attempting to adopt protective positions while punches and kicks delivered with full force were aimed at them by the appellants. The camera is directed towards the serving hatch of the stall. Thompson is to be seen attacking Jones while Press is to be seen attacking Simmons. At one moment Press leaves Simmons to deliver a punch at Thompson. First on the scene appears to have been two off duty members from the same regiment as the appellants who attempted to pull Thompson and Press away from their victims. Thompson is to be seen detained by two security men. Press left the scene. So severe were fractures to Jones’ facial bones that he was permanently blinded in one eye. 8. Jones gave evidence that he was unaware of the arrival of the appellants at the burger van. He saw a punch delivered to Simmons from his right. Simmons went straight to the ground. As Jones turned to his right he was also felled by a blow to the face and he dropped to his knees. He then suffered several more blows to the head, one of which was of extreme severity. Jones said during his evidence-in-chief that he and Simmons had done nothing to provoke the attack. 9. Simmons had no memory of the attack. He told the jury that he and Jones were standing at the burger van and the next thing he could remember was waking up in an ambulance. 10. Thompson gave evidence that while he was being detained at the scene by the security men he suffered a blow to the head that knocked him out. He also suffered an injury to his hand. He was arrested and later interviewed under caution in the presence of his solicitor. He claimed that he had gone alone to the burger van. He said that he had felt a bit threatened at the burger van but he did not think that he had taken any action against those who had threatened him. When he was shown the CCTV film it depicted the simultaneous attacks made by Thompson and Press. Press was a friend of his whom he had known for at least two years. Thompson told the police that he did not remember who had “started the fight”. He did not know the man to be seen in the CCTV with him. He was “fazey” as to what happened. He next remembered being held by the bouncers. The interviewing officer saw a graze and reddening to Thompson’s left forehead, and a fracture to the scaphoid bone in his wrist was subsequently found on x-ray. Thompson insisted that both these injuries were caused while he was being detained and not during the violence which preceded it. Having been shown the CCTV film Thompson responded that he did not know why he would have behaved in that manner. It was not like him. There must have been some reason. However he continued, “There isn’t an excuse. I should have walked away”. He repeatedly said that he did not know the identity of the man with him. 11. Press gave evidence that when he and Thompson arrived at the burger van, he asked Thompson what he was going to order. Thompson replied, “A pint of chips”. Jones responded insultingly, “If you think you are so funny, you can buy us all chips”. Mr Mackey then handed a burger to Jones. Jones put ketchup on the burger and thrust it towards Thompson’s face. The burger fell to the floor as Thompson parried it, and Jones squared up to them. Press said that, believing he had no alternative, he punched Jones who fell to the ground. Simmons made an aggressive approach and Press punched him to the head or face. Simmons too went to the ground. The rest, Press said, could be seen on the CCTV film. He acknowledged that at the end of the incident he had intended to cause really serious harm to Simmons while Simmons was defenceless on the ground and Press was kicking him. That is why he had pleaded guilty to count 3. Accordingly, his defence to count 1 was that he had punched Jones in defence of Thompson and had punched Simmons in defence of them both; there was no pre-arrangement between the appellants to make a joint attack on the complainants and Press claimed that he was unaware what was happening between Thompson and Jones while he, Press, was occupied with Simmons. 12. Thompson gave evidence that he had undertaken a 6 month tour in Afghanistan, returning to the United Kingdom in April 2010. He claimed to have a good memory of the events at the burger van. In interview he had been shocked and scared. He denied that he had been lying. He agreed that he had been drinking but was tipsy and not drunk. Drink had no bearing on the way he behaved or upon his memory after the incident. Thompson confirmed that Jones had made a bad joke about the purchase of chips. Jones was handed a burger, placed the ketchup on it and thrust it towards his face. Thompson “swiped” towards the burger which went to the ground. Jones, he said, puffed out his chest and clenched his fist. Press struck Jones to the left side of his face. Simmons approached and Press punched him too. Thompson said that he went to Jones who was trying to get up and his subsequent actions were intended to keep him on the ground because he was scared what Jones would do if he regained his feet. He was acting in self-defence. He was unaware what was happening to Simmons. He had not intended to cause serious harm to Jones. 13. We have viewed the CCTV film. It is quite apparent that these two appellants were delivering savage kicks and punches at Jones and Simmons respectively while they were immediately alongside one another. It is, we conclude, inconceivable that the jury would have accepted their assertions that they each did not know what the other was doing. 14. On 16 June 2012 Thompson’s solicitors instructed a consultant forensic psychiatrist, Dr Michael Alcock, to examine Thompson and to make a psychiatric assessment, in particular as to whether Thompson was suffering post-traumatic stress disorder in consequence of his service in Afghanistan. Dr Alcock recommended that Thompson be referred for the opinion of a clinical psychologist. Thompson was seen by Dr Arthur Anderson on 26 August 2011. His report is dated 6 September 2011. Dr Anderson, by agreement between the prosecution and the defence, gave evidence to the jury. We are informed by counsel that there was no discussion with the Recorder as to the relevance of this evidence to the issues which arose in the trial either before the evidence was adduced or before speeches. Thompson explained in evidence that his job in Afghanistan was to maintain vehicles. He would see some vehicles coming into the base with bits blown off them. Although it was not his job to clean the vehicles he did see some of the bloody results of road side explosions. He said that overall he felt good about his experience in Afghanistan. He had come back safe and had not been involved in fighting. 15. Dr Anderson said in evidence that Thompson had described to him his intermittent fear while serving in Afghanistan. Thompson expressed to him increased levels of self-awareness and fear after mortar shelling and the effects of seeing the aftermath of explosions. He continued to experience anxiety, disturbance of appetite, disruption of sleep, occasional feelings of panic, a sense of doom and catastrophe, and periods of sadness. Dr Anderson observed no signs of exaggeration. He carried out psychological testing using several inventories and tests, in particular the FOA Post-traumatic Stress Diagnostic Scale. Thompson showed consistent scores for elevated anxiety and fear. Dr Anderson concluded that he was suffering a moderate level of post-traumatic stress disorder (“PTSD”). He explained to the jury his opinion as to the relevance of PTSD to the events at the burger van. He said that some people become hyper-vigilant and had a heightened awareness of potential threats. He did not conclude that the appellant had an explosive personality, but if he felt threatened he might over-react to protect himself, even if there was no objective reason for him to do so. Dr Anderson expressed the opinion that it was highly likely that this is the way Thompson reacted on 2 December 2010. In cross-examination he confirmed that his opinion was formed solely upon the information provided to him by Thompson himself. When it was pointed out that Thompson had given a different account in interview Dr Anderson expressed the opinion that the head injury may have caused Thompson short term memory loss. Dr Anderson could not speak about Thompson’s intention and could not conclude that he did not have the intention to cause serious harm. Once he had responded Thompson would have been adrenaline-fuelled. Alcohol, he said, would play a significant part in any attack. Its effect might be to decrease Thompson’s sensitivity to a threat. In re-examination he summarised his opinion: if there were threats, real or perceived, Thompson would have reacted in a way he would not have done but for his symptoms of PTSD. Grounds of Appeal - Thompson Misdirection as to lies in interview 16. We have already referred to the assertion made by Thompson that he had suffered a head injury following the incident in front of the burger van and Dr Anderson’s evidence that short term memory loss may have been the result. In the course of his summing up the Recorder (at page 17) reminded the jury that the officer in the case, Detective Constable Wood, had been recalled to deal with the contents of the custody record and the state of Thompson’s health and demeanour at the time of interview. The prosecution did not accept that Thompson’s ability to provide a truthful account of events had been affected by a blow to his head. The Recorder directed the jury that this evidence was relevant to the question whether the apparent discrepancies between Thompson’s account to the police and his evidence during the trial, particularly about the commencement of the outbreak of violence, was to be explained by partial memory loss or was the result of concoction of the account given at trial. He continued: “Here I have to give you a careful direction about the significance you may or may not attach to any lies you find proved. The prosecution say that the defendant Thompson lied several times in his police interview and I will direct your attention to the possible passages: (a) that he went to the burger van alone at a time before he was shown the CCTV recording and (b) several times after he was shown the CCTV recording, when the CCTV record had shown that he was not alone, as to the identity of Press, who was at the time a good friend and colleague. And also (c) at page 6 before the CCTV, saying that after he felt ‘a bit threatened’ he didn’t think that he had taken any action at all against the people or the person threatening him.” 17. The Recorder proceeded to give a standard Lucas direction as to which there is no complaint. However it is common ground that at trial counsel for the prosecution, Mr Gittins, identified specifically as a lie upon which he relied only the several occasions during interview when Thompson failed to identify Press as his companion. He did not identify Thompson’s expression of belief that he had taken no action against the people who were threatening him, although the prosecution did not accept that Thompson’s head injury could have explained that assertion. Mr Lewin, for Thompson, contends that the Recorder’s addition of lie (c) (paragraph 16 above) was unfair to Thompson since he did not have the opportunity to deal with it in evidence or in his final address to the jury. 18. It seems to us that Thompson’s assertion that he did not think he had taken any action against the complainants was so obviously a subject for the jury’s examination (having regard to what they could see on the CCTV film) that we do not accept that the appellant was placed at any disadvantage by the Recorder’s inclusion of the subject in his Lucas direction. Indeed he could have been criticised for not doing so. It would, we agree, have been preferable for the matter to have been raised with the Recorder before speeches, but we do not consider that the absence of discussion could have had any effect upon the safety of the verdict. The real issue between the prosecution and the defence was whether the differences, of which there were several, between the account given by Thompson in interview and his account in evidence, could be accounted for by his head injury and a short term memory loss, some other innocent reason, a consciousness of guilt and/or concoction with Press. The judge provided the jury with appropriate directions as to the manner in which they should approach these differences. Factual errors in the summing up 19. In the course of reminding the jury of the evidence of Jones the Recorder informed them that in response to questions from Mr Lewin he replied “I was not aggressive to them. I didn’t puff up my chest”. It is submitted that to be accurate the Recorder should have stated that the witness could not remember being aggressive or puffing up his chest. We have been provided with an agreed note of the evidence. In examination-in-chief, Mr Jones was asked: “Q: Had you done anything that night that might have caused that incident? A: No.” In cross-examination the following passage occurred: “Q: Whilst at the burger van do you remember two other males coming to the van? A: No. Q: Thereafter a discussion took place between you and one of those males over him ordering a pint of chips? A: I do not remember that. Q: Do you remember being aggressive with him? A: No. Q: Puffing up your chest a bit? A: No.” We do not consider that the Recorder’s summary of the evidence was inaccurate. If it was, then it was of no consequence. The witness had already denied being in any way responsible for the violence which followed the arrival of the appellants. In response to a question whether there had been a discussion over a pint of chips the witness responded that he did not remember that. Commonly a witness will respond in this way as a denial. It was clearly of no consequence to Mr Lewin at the time since he did not elucidate in what sense the witness was giving his answer; neither did he raise it with the judge at a suitable break in his summing up. 20. Thompson complains that in setting the scene for his summary of the interview between the police and Thompson the judge informed the jury that the usual procedure, since the appellant was accompanied by a solicitor, would have been for the solicitor to be provided with an outline of the case and an opportunity to be given for legal advice before the commencement of the interview. The Recorder was pointing out to the jury that if there had been any doubt at the time that Thompson was fit to be interviewed there was an opportunity available for a protest to be made. We are surprised that this should be raised as a ground of appeal in the absence of any evidence that the appellant’s solicitor did not have the opportunity to which the Recorder was referring. In our view the Recorder was simply informing the jury about a procedure in police stations about which they would not have had knowledge but the lawyers did. We do not accept that any unfairness resulted. 21. At page 22 of the summing up the Recorder, when referring to Thomspon’s reply in interview, “I don’t know why I would have reacted like that for no reason”, reminded the jury of the defence case that Thompson may have been suffering from partial memory loss. He inaccurately added the words “being associated with PTSD”. This was clearly a slip of the tongue since the Recorder had in the preceding five pages of transcript made repeated references to the defence case that partial memory loss may have been caused by a head injury suffered while the appellant was being detained by the security men. This again is a complaint about which it does not appear to have occurred to Mr Lewin to make mention at the time. 22. The same observation applies to Mr Lewin’s reference to an error in which the Recorder suggested that it was Simmons who had made a threatening remark about the pint of chips when, clearly, in context he meant Jones. We fail to understand why an attempt has been made to elevate this to a ground of appeal. Again the Recorder’s slip of the tongue was not drawn to his attention at the time. Finally, Mr Lewin says that the Recorder summarised Thompson’s evidence of “wiping” his face after the burger had been thrust towards him. In fact the evidence was that Thompson had made a “swipe” towards the burger. This too was an error of no consequence. Good character direction 23. The Recorder provided both appellants with a good character direction. In the case of Thompson he reminded them that he was a man with no convictions, warnings or cautions on his record and that the jury had heard testimonials “speaking of his fine qualities”. He continued: “However, in Mr Thompson’s case you will have to decide what impact his lies, if you find them so to be, told to the police in interview have. He may, in your view of the evidence, have been protecting Press, who had escaped at that time, but why you may ask yourselves did he decline to answer when he could have?” The Recorder proceeded to instruct the jury that they should treat Press also as a man of good character although he had committed a minor offence of public disorder in the past. Furthermore, in his case, he had pleaded guilty to a serious offence of attempting to cause grievous bodily harm to Simmons with intent to do him grievous bodily harm. The judge continued: “That said, what should be your general approach to this evidence in relation to each defendant? It should be as follows. Good character cannot by itself provide a defence, but it can support a defendant’s credibility and should therefore be taken into account. It also may mean that a defendant is less likely than otherwise to have committed the offence. It is for you to decide what weight you give to a defendant’s good character, applying these guidelines and applying your commonsense to the evidence of alcohol in this case.” 24. Mr Lewin submits that the Recorder gave the appropriate good character direction but he added riders which rendered it qualified when it should have been unqualified. He acknowledges that had the Recorder completed the standard good character direction and only then invited the jury to consider the question of lies and the possible impact of alcohol when assessing the weight that they should give to good character, he could have had no complaint. We agree that it would have been preferable for the Recorder to have approached the good character direction as Mr Lewin submitted he should have. However, having read the passage in its entirety we are quite sure that no unfairness resulted. The jury will have understood that good character spoke in the appellants’ favour in the ways the Recorder explained. However, when it came to the value of that good character, his credibility as a witness (first limb) might be affected by their decision as to whether he had lied in the course of his interview. Their decision as to the value of good character in an assessment of whether the appellant may have committed an offence (second limb) may have been tempered by the knowledge that he had consumed a substantial quantity of alcohol. 25. We turn to examine those grounds of appeal in respect of which Thompson’s application for leave was refused by the single judge. Bias 26. At the conclusion of Dr Anderson’s evidence in re-examination the Recorder indicated that he wished to ask some questions of his own. First, he reminded Dr Anderson that on three occasions in the course of his evidence he had used the word “fight” to describe the violence which had occurred. He asked Dr Anderson to confirm that he was aware that the prosecution case was that it was not a fight at all but an unprovoked attack by the defendants upon the complainants. Dr Anderson confirmed that he did. The Recorder asked the following question: “If there were not any provocative words or provocative actions by the victims prior to what happened, does that mean that your findings really do not have much relevance for the jury?” Dr Anderson replied that even if there were no words of provocation there may have been actions which were provocative. The judge asked Dr Anderson to assume that there had been neither words nor actions from the complainants which could have triggered any reaction from Thompson. Dr Anderson replied: “… he … could have initiated an attack out of the blue based on some internal mechanism, some internal rage that was going on inside of him and something sparked it off. That’s the alternative view.” When the Recorder asked whether this was guesswork or based on some scientific evidence Dr Anderson’s response was: “I think it is at least as strong as stating, without video evidence, that there was no altercation, that there was no fight and that it was a straight beating, so let’s say it is a diametrically opposed view, but it is based on as much forensic evidence as assuming there was a fight with no provocation.” With the benefit of hindsight, it seems to us that although Dr Anderson had become argumentative he was not claiming that “some internal rage” was a symptom of PTSD. He was saying that in the absence of any provocative words or conduct the alternative explanation was an attack out of the blue generated by internal rage rather than fearful hypersensitivity to perceived threat. The Recorder, thinking that Dr Anderson was attempting to excuse unprovoked conduct, went on to remark that if Dr Anderson was correct any soldier returning from a battle zone was liable to respond as Mr Thompson had done even without provocation. At this point Mr Lewin intervened to object to the Recorder’s questions. The jury left court. The judge indicated that he was well aware that he had for the moment taken over questioning of the expert but he informed counsel that he intended to ask a question which would undoubtedly spring to the mind of any juror in retirement. The jury returned to court and the Recorder repeated his question. Dr Anderson replied that of those who returned from battle zones not all had signs of PTSD. The judge proceeded to ask Dr Anderson whether, when he had spoken of short term memory loss as a possible effect of head injury, he was speaking of total or partial memory loss. Dr Anderson replied he was speaking of partial memory loss. The judge proceeded to deal with two questions to which the jury wanted an answer and no complaint is made in respect of them. 27. Mr Lewin contends that in these questions the judge was betraying an animosity towards Dr Anderson’s evidence which must have become evident to the jury. We do not agree. The Recorder was testing the limits of Dr Anderson’s opinion as to the effect that PTSD may have had upon Thompson’s appreciation of circumstances. It was clearly of the first importance to the jury’s assessment of his evidence whether he was saying that Thompson’s symptoms of PTSD may have caused not just a misinterpretation of actions or words from the complainants but a form of delusion in the absence of any relevant actions or words. In our judgment the Recorder was entitled to raise this issue which at the close of re-examination appears to have been an important lacuna in the evidence. It was open to any counsel to request permission to examine the doctor further. This is a matter which became relevant in his summing up to which we shall refer shortly. Joint enterprise direction 28. The prosecution had from the start put its case on the basis of a joint enterprise by the appellants to cause grievous bodily harm to the complainants with intent. It was suggested that the motivation for the attack may have been inter-forces rivalry. The Recorder gave an explanation to the jury of the joint enterprise concept to which no exception is taken. The Recorder further explained that if one defendant joined in an attack on a complainant intending that the complainant should suffer really serious injury then he would be guilty of the section 18 offence if really serious injury was caused by the joint attack. The issue was whether the defendants were “in it together”. On the facts of the present case those directions were accurate: see Grundy and others [1989] 89 Cr App R 333 . 29. However, in their retirement the jury sent to the Recorder a note in the following terms: “Does intent have to be from the beginning of the action? Can intent come into play after the action has started, that is the mind set and culpability has changed for whatever reason when the opportunity presented itself to deliberately inflict grievous bodily harm they took it and with intent .” 30. The Recorder directed the jury as follows: “This case has always been put on the basis of Jones and Mackey’s evidence that it was a 2 on 2 joint attack with both jointly intending grievous bodily harm, and both responsible for what happened to each victim thereafter, that is requiring intent to do grievous bodily harm from to use your words, ‘the beginning of the action’. If your question implies a later acquisition of an intention to cause grievous bodily harm (seizing the opportunity to cause grievous bodily harm which later presented itself) then that is not enough for a joint enterprise grievous bodily harm as alleged. But if one man is attacking another, and another man is attacking another man, and one man becomes possessed of an intent to do grievous bodily harm at some point later in the attack, and while so intending he causes grievous bodily harm, that would be sufficient to prove that offence against that person, if you are sure that that person was not acting with lawful excuse as I have defined it, that is self-defence either of oneself or another.” 31. Mr Lewin submits that the judge’s further direction was impenetrable to a layman. We note, however, that immediately after the Recorder had given his further direction he remarked “you are nodding”. He asked whether his direction sufficiently answered the jury’s question. Plainly, an indication was given that it did because the judge responded “thank you very much indeed”. We do not accept that the judge’s further direction was couched in terms which the jury were misunderstanding. He was dealing with a situation in which the jury may not be sure that there was a joint enterprise from the outset to cause really serious harm. They were concerned as to where the judge’s direction on joint enterprise would lead them if they were to rely only on the contents of the CCTV film. The judge instructed them that if one of the defendants, acting other than in self-defence, attacked one of the complainants so as to cause him grievous bodily harm with intent to cause him grievous bodily harm, that would suffice to prove the offence against that person. The Recorder specifically directed the jury that later acquired intent could not support a finding of joint enterprise to do really serious harm. 32. The jury retired at 1.52 pm after receiving this further assistance. They returned with guilty verdicts at 3.05 pm. It is plain that, notwithstanding the direction given by the judge just over an hour before, the jury convicted on the basis that there was a joint enterprise, since they convicted Press upon count 1 in the indictment and Thompson upon count 3. 33. We turn to consider the issues raised by the Criminal Appeal Office as worthy of further argument. Intoxication and intent 34. The conventional direction in a case where the prosecution is required to prove a specific intent and the evidence is that the defendant has taken alcohol (or drugs) is that the jury should consider whether the act was accompanied by the required intent even in drink. The fact that the defendant was intoxicated does not constitute a defence. In the present case the Recorder repeatedly emphasised the need for the prosecution to prove the specific intent alleged against both appellants but he did not give the conventional direction in this context. At the conclusion of his summing up, however, when summarising the issues the jury had to decide, he said, “an intention obviously formed in drink remains an intention”. 35. Furthermore, Thompson had been explicit in his evidence that alcohol played no role in his decision making or behaviour on the night of 2 December 2010. The Recorder correctly informed the jury that even if his intention was formed in drink it was nevertheless an intention. In our view, the direction given was adequate. Post-traumatic stress disorder, self-defence and intent 36. The issue raised by the case lawyer on which we have received argument is whether and to what extent Dr Anderson’s evidence that Thompson was suffering the effects of PTSD was relevant to self defence. In Keane and McGrath [2010] EWCA Crim 2514 , the court (Hughes LJ, Vice President, Owen and Roderick Evans JJ) considered the effect upon the common law concept of self-defence of the statutory intervention made by section 76 of the Criminal Justice and Immigration Act 2008 . The court confirmed that it was not the purpose of the section to change the common law but to specify in statutory form some of the requirements upon a tribunal considering self-defence. The Vice President made it clear that although the court intended to make some general observations it would not provide a comprehensive survey of the whole of the law of self-defence so as to deal with the exigencies of any particular case. At paragraph 5 he described “the basic building blocks” of the large proportion of cases in which self-defence is raised. The first stage of the jury’s consideration is to decide what happened to cause the defendant to use the violence he did. The facts must be established by application of the criminal burden and standard of proof. Second, if (and, we would add, only if) the defendant claims that something happened which caused him to act as he did, but the jury find it did not, the jury must resolve the question whether the defendant genuinely believed in the circumstances he asserted. If he did then the jury must judge his conduct against the circumstances as he honestly believed them to be, unless his erroneous belief was the result of voluntarily taken drink or drugs. The third stage of the analysis is of significance in the present case: “5 (3) Once it has thus been decided on what factual basis the defendant’s actions are to be judged, either because they are the things that actually happened and he knew them or because he genuinely believed in them even if they did not occur, then the remaining and critical question for the jury is: was his response reasonable, or proportionate (which means the same thing)? Was it reasonable (or proportionate) in all the circumstances? Unlike the earlier stages which may involve the belief of the defendant being the governing factor, the reasonableness of his response on the assumed basis of fact is a test solely for the jury and not for him. In resolving it the jury must usually take into consideration what are often referred to as the ‘agony of the moment’ factors. That means that the jury must be reminded when it rises, as it very often does, that there is in a confrontation no opportunity for the kind of hindsight or debate which can take place months afterwards in court. The defendant must act on the instant, at any rate in a large number of cases. If he does so, and does no more than seems honestly and instinctively to be necessary, that is itself strong evidence that it was reasonable. It is strong evidence, not conclusive evidence. Whilst the jury’s attention must be directed to these factors if they arise, the jury must also be made to understand that the decision of what is a reasonable response is not made by the defendant, it is made by the jury. We should perhaps add that ‘in all the circumstances’ means what it says. There can be no exhaustive catalogue of the events, human reactions and other circumstances which may affect the reasonableness or proportionality of what the defendant did. That is explicitly recognised by section 76 (8) .” [Emphasis added] 37. For present purposes it is sufficient to refer to a limited number of the sub-sections of section 76 : “(3) The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and sub-sections (4) to (8) also apply in connection with deciding that question. (4) If D claims to have held a particular belief as regards the existence of any circumstances- (a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but (b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not- (i) it was mistaken, or (ii) (if it was mistaken) the mistake was a reasonable one to have made. (5) But subsection (4)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced. (6) The degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances. (7) In deciding the question mentioned in sub-section (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case) – (a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and (b) that evidence of a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose. (8) Subsection (7) is not to be read as preventing other matters from being taken into account where they are relevant in deciding the question mentioned in subsection (3). (9) This section is intended to clarify the operation of the existing defences mentioned in subsection (2). …” 38. In the present case the complainants asserted that they said and did nothing which could have provoked violence from the appellants, even that which could have been misconstrued. The appellants on the other hand maintained that Jones and then Simmons had acted aggressively towards them in the manner we have described. Assuming that the jury concluded the complainants had done nothing to justify force from the appellants, the second stage for the jury’s consideration (see paragraph 36 above), was whether Thompson nevertheless genuinely believed that their behaviour was sufficiently threatening to require force in response. It seems to us, as it did to the parties and to the judge, that Dr Anderson’s evidence that Thompson would have been hypersensitive to threatening situations was plainly relevant to the question whether he held an honest belief that he was being threatened. The reasonableness of that belief was relevant to the question whether he held it but it was not conclusive. Thompson’s PTSD was therefore relevant to the question whether Thompson held a genuine belief that he was under threat. 39. The third issue for the jury was the reasonableness of the force used either in the circumstances as the jury found them to be or as the jury found Thompson genuinely believed them to be. Assuming that the jury resolved the second question in favour of the appellant (namely, he genuinely believed he was under such a threat that a physical response was required), section 76(7) required them to consider whether Thompson “honestly and instinctively” thought that the force he used was necessary in defence of himself and, ultimately, whether the force used was proportionate in those circumstances ( section 76(6) ). At this stage of the assessment, the issue was not, we consider, whether a reasonable person would have thought the degree of force he used was necessary but whether Thompson did. A person suffering from a post-traumatic stress disorder may, by reason of its effects, hold such a belief when a reasonable person would not. As the Vice President emphasised in Keane and McGrath a belief honestly held by the defendant that he did only what was necessary in self-defence is to be treated as “strong evidence” that the degree of force used was reasonable, but it is not conclusive evidence. The ultimate decision is entirely objective: was the force used proportionate (and therefore reasonable) in the circumstances as the defendant believed them to be? It seems to us that the facts of the present case provide a useful example of circumstances in which the objective test was likely to resolve the ultimate question. Even if Thompson genuinely believed himself to be under threat from Jones and Simmons, the jury could assess for themselves from the contents of the CCTV film whether Thompson, even upon his understanding, had gone grossly beyond what was reasonable in the circumstances. 40. In B [2013] EWCA Crim 3 the court (Hughes LJ, Vice President, Macur and Maddison JJ) considered the question whether it was open to a defendant charged with rape contrary to section 1 of the Sexual Offences Act 2003 to rely upon a “deluded” belief in the consent of the complainant. At paragraph 36 the Vice President said: “36. Both the common law and statute law are well used to a rule which judges a defendant by his subjective state of mind. So, for example, in the case where self-defence is at issue the defendant is to be judged according to the facts as he genuinely believed them to be, whether his belief was reasonable or not, at least unless it was attributable to voluntary intoxication. Criminal damage, which arises also in the present case is not committed if the defendant honestly believes he had (or would have had) the consent of the owner of the property damage to do what he did, even if that belief was unreasonable. But the decisive indication as to the law of rape is, we think, that the Sexual Offences Act 2003 deliberately departs from this model. It deliberately does not make belief and consent enough. The belief must not only be genuinely held; it must also be reasonable in all the circumstances. This was a conscious departure from the former law. Under the former law a genuine belief in consent (reasonable or not) was a complete defence to rape; the reasonableness of the belief was material only as a factor to be considered en route to the decision whether it was genuinely held: see the Sexual Offences (Amendment) Act 1976 .” 41. For these reasons the court concluded at paragraph 40: “40. We conclude that unless and until the state of mind amounts to insanity in law, then under the rule enacted in the Sexual Offences Act beliefs in consent arising from conditions such as delusional psychotic illness or personality disorders must be judged by objective standards of reasonableness and not by taking into account a mental disorder which induced a belief which could not reasonably arise without it. The defendant’s mental condition, and its impact on his behaviour, is of course extremely relevant to sentence. If punishment is inappropriate, a non-custodial sentence may result when otherwise there would have been a substantial sentence of imprisonment, and whether a hospital order is needed by the time of trial or not. In other cases it may significantly mitigate the punishment required. In yet others, it may result in a substantial custodial sentence recognising the danger which the defendant presents.” 42. It seems to us that section 76 of the Criminal Justice and Immigration Act 2008 represents a further occasion upon which Parliament has specified precisely the extent to which a subjective understanding both of circumstances and necessity by the defendant contributes to the decision whether the prosecution has proved its case. 43. In Martin [2001] EWCA Crim 2245 , [2003] QB 1 the court (Lord Woolf CJ, Wright and Grigson JJ) ruled, at paragraph 67, that it would not be appropriate except in exceptional circumstances “which would make the evidence especially probative” to take into account, when deciding whether excessive force was used in self-defence, that the defendant was suffering from a psychiatric condition. Since the hearing of the present appeal, this court (Davis LJ, Keith and Lewis JJ) has handed down judgment in the appeal of Seun Oye [2013] EWCA Crim 1725 . At paragraph 55 Davis LJ noted that the saving for exceptional circumstances in Martin had been considered in Canns [2005] EWCA Crim 2264 (Rose LJ, Vice President, Forbes and Calvert-Smith JJ). No member of that constitution could envisage circumstances in which a deluded understanding of circumstances arising from a psychiatric condition might be “especially probative” in resolution of the issue whether force used in self defence was reasonable. In Seun Oye , following Martin and Canns , the court concluded that in the assessment of reasonableness of force used in self defence, an honest and instinctive belief in the necessity for the force used, formed because the defendant was acting under an insane delusion as to the nature of the threat, was to be left out of account. To hold otherwise, the court concluded, would be to ignore the explicit terms of section 76(9) that section 76 was a clarification of existing law and not a change in it. 44. We emphasise it is common ground that it was not Dr Anderson’s evidence in the present case that Thompson did hold or may have held a “deluded” belief that he needed to use force. The essence of his evidence was that Thompson’s condition may have caused him to react over-sensitively to perceived threat. The issue that arose in the present case was not whether the appellant was acting under a psychotic or other delusion as to the nature of the threat he faced. It was whether, having perhaps mistakenly judged the need to use force at all (through the effects of PTSD), he then exceeded what was reasonable in the circumstances as he understood them to be. The Recorder correctly directed the jury that Dr Anderson’s evidence was relevant to the question whether the appellant Thompson held a genuine belief that he was under a threat such as required him to use force. Further, the Recorder correctly left to the jury the question whether there was any room for a finding that Thompson had a genuine belief in the need to defend himself if they were sure that nothing had been said or done that could have caused even an oversensitive reaction. As to the third question, whether the force used was reasonable in the circumstances, the Recorder correctly, in our view, invited the jury to consider the evidence of Dr Anderson when resolving the question whether Thompson did only what he believed was necessary in the circumstances. The Recorder made clear, however, that it was for the jury, not the defendant, to resolve the ultimate question whether the degree of force used was reasonable. In these circumstances, we agree with the parties that there was no misdirection to the jury upon the issue of self-defence. 45. Mr Lewin has raised the question whether the jury should have received a specific direction from the judge as to the possible impact of PTSD upon the issue of intent. In our judgment the Recorder properly reminded the jury of the evidence given by Dr Anderson which was relevant to the question. He summarised Dr Anderson’s evidence that a man suffering from PTSD had a tendency to over-react and “catastrophise”. It was possible that the reaction of fear or anger and adrenalin sustained the attack. On the other hand, he could not say that Thompson did not have the intent to cause grievous bodily harm. It seems to us that the jury must have had well in mind these features of the evidence before concluding that Thompson harboured the necessary intent. No further direction was necessary. Grounds of Appeal – Press Character of co-accused 46. For the reasons we have earlier explained we conclude that no unfairness was suffered by Thompson in consequence of the “qualified” good character direction given by the Recorder in his case. It follows that there was no consequential unfair impact upon the case of Press. Joint enterprise 47. Mr Linford, for Press, argued that the jury may have been misled by the judge’s further direction in response to the jury’s note to believe that it was open to them to convict Press of the section 18 attack upon Jones merely because he had delivered a punch to Jones in the course of Thompson’s attack upon Jones. As a matter of fact it would have been open to the jury, had they been so directed, to convict the appellant Press upon the basis that he joined in an attack upon Jones the consequence of which was to cause him really serious harm, with the intention of really serious harm, notwithstanding that Press’ single punch could not have occasioned that harm by itself. However, that is not the direction the jury received in response to their note. They were instructed that they could convict either man only if he caused grievous bodily harm to his victim with intent to do so. Upon that direction it was not open to the jury to convict Press of the count 1 offence unless they were sure that he was acting in a joint enterprise with Thompson to cause really serious injury to both men. Furthermore, Thompson could not have been convicted of attempted section 18 grievous bodily harm against Simmons unless he was party to a joint enterprise with Press to cause really serious harm to both men. It follows, in our judgment, that notwithstanding the jury’s question they must in the end have concluded that the joint enterprise was proved. Conclusion 48. For the reasons we have given we conclude that there is no substance in the grounds of appeal advanced. The jury’s verdicts were safe and the appeals are dismissed.

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/1849/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/1849

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[2014] EWCA Crim 2176

EWCA_Crim_2176

2014-10-15

crown_court

No: 201306244/B3 Neutral Citation Number: [2014] EWCA Crim 2176 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 15th October 2014 B e f o r e : PRESIDENT OF THE QUEEN'S BENCH DIVISION (SIR BRIAN LEVESON) MRS JUSTICE ELISABETH LAING DBE MR JUSTICE WILLIAM DAVIS - - - - - - - - - - - - - - - - - - R E G I N A v SHENAE BAFFRENE BROWN - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Lim

No: 201306244/B3 Neutral Citation Number: [2014] EWCA Crim 2176 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 15th October 2014 B e f o r e : PRESIDENT OF THE QUEEN'S BENCH DIVISION (SIR BRIAN LEVESON) MRS JUSTICE ELISABETH LAING DBE MR JUSTICE WILLIAM DAVIS - - - - - - - - - - - - - - - - - - R E G I N A v SHENAE BAFFRENE BROWN - - - - - - - - - - - - - - - - - - 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 Dyer appeared on behalf of the Appellant Mr M Tomassi appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - J U D G M E N T 1. PRESIDENT OF THE QUEEN'S BENCH DIVISION: On 8th November 2013 in the Crown Court at Inner London before Mr Recorder Mitchell and a jury, this appellant, who is now aged 24 years, was convicted of wounding with intent contrary to section 18 of the Offences Against the Person Act 1861. On 9th December she was sentenced to 24 months' imprisonment suspended for 2 years and ordered to pay a victim surcharge of £100. She now appeals against conviction by leave of the single judge. 2. The facts can be summarised very briefly. The prosecution case was that Horace Duffus, the complainant, was stabbed at the home he shared with the appellant and with whom he was in a relationship. Following an exchange of words between the two during which she had become angry and indeed threatened to kill him, it was alleged that she had picked up a knife and deliberately stabbed him, intentionally causing him really serious harm, There is no doubt that the knife caused a vertical wound to Mr Duffus' right cheek. 3. The defence case was that during the course of a physical and verbal altercation between the two the appellant picked up a knife in self-defence to keep Mr Duffus away from her. He moved towards her, grabbed hold of her wrist holding the knife, moving her arm behind her head causing her to turn and during the course of the struggle she accidentally slashed his face with the knife. The appellant did not let go of the knife during the struggle as she was concerned about what would happen if she did so. She gave evidence and denied intending to hurt Mr Duffus. She was of good character. 4. There was medical evidence which was reduced into an admission which negated the allegation of a stab wound. It was common ground that the wound to Mr Duffus' face was properly described as an incised wound, wholly consistent with having been caused by a sharp bladed weapon, such as a knife, more properly described as a slash wound. The admissions continued that it was consistent with having been sustained during the course of a struggle; a deliberate stabbing action into the face would be expected to cause a more limited wound on the skin together with an injury to deeper structures within the face and mouth. The admissions went on to the effect that no more than mild to moderate force would have been required to inflict the injury and did not indicate a stabbing action. 5. Prior to the end of the case the judge raised with counsel whether an alternative of unlawful wounding should be left to the jury for their consideration. For different reasons counsel did not take up the learned judge's suggestion. The Crown took the view that to allow the jury to return a verdict of unlawful wounding would be to cause a risk that the true issue in the case, which was the intention of the appellant, would be fudged. 6. The defence took the view that the jury would not convict of an offence involving intention to cause serious bodily harm in the light of the agreed medical evidence. The judge did not demur from the submissions placed before him and as a result the jury were left only with the issues of self-defence and accident. The judge observed however: "You may think the real issue in this case is intent. In this case you must be sure, if you are to convict, that the defendant intended to cause really serious bodily harm to Mr Duffus. You can only decide what her intention was by considering all the relevant circumstances and in particular what she did, and what she said about what had happened on that occasion. If you think the serious injury which Mr Duffus suffered to his face was accidental, or might have been accidental, then you must acquit. You can only convict if you are sure the defendant intended to cause really serious harm to Mr Duffus." The learned judge then directed the jury in relation to self-defence and the circumstances in which the appellant came to be holding the knife in any event. Having given a full and proper direction on self-defence, he went on: "Of course I remind you that the question of self-defence arises in this case is the reason why the defendant held a knife at all. Her defence in her case is the question of accident. She says this injury was an incident. There was a struggle and in the course of that struggle the injury was caused and the injury was not deliberate. That is her defence." 7. In truth the defendant's case was that she had deliberately picked up the knife "in order to keep him away" that is to say to scare him. When Mr Duffus put her arm behind her back she deliberately tried to get free of his grip, so she could regain control of the knife. She knew that she was holding the knife yet she struggled in a way that an ordinary sober individual would have realised might caused some injury to a person standing close to her. If the result was that she slashed the face of Mr Duffus, albeit not intending serious bodily injury then, if the jury rejected accident and self defence, it was open to the jury to conclude that she was guilty of the offence of unlawful wounding. 8. Having been convicted of wounding with intent in the Crown Court Miss Polly Dyer, for the appellant, now takes the point that the jury should have been left with the alternative of unlawful wounding. She relies on the decision of House of Lords in R v Coutts [2006] 1 WLR 2154 , the headnote of which makes clear: "In a trial on indictment any obvious and viable alternative verdict should ordinarily be left to the jury if there were evidence to support it irrespective of the parties' wishes." She also points to the decision in R v Hodson [2009] EWCA Crim 1590 , in which Keene LJ observed in relation to alternative verdicts: "It is, in our view, particularly important that this is done where the offence charged requires proof of a specific intent and the alternative offence does not. Even then there may be circumstances where the issue of specific intent does not truly arise. For example, if a man is shot at point-blank range in the head and the defence is simply that the defendant was not present, there is no requirement on the judge then to leave the alternative of manslaughter by way of killing without the necessary intent for murder. However, there will be cases, as Coutts recognised, where it is necessary to leave the lesser offence as an alternative to avoid the dangerous situation where the jury is faced with the stark choice of convicting for the serious offence or acquitting altogether. That may give rise to a miscarriage of justice." 9. In this case Mr Tomassi for the Crown argues that a conviction for section 20 would have fudged the true issue between the parties. But that depends upon the jury reaching the assessment the one or either of the cases advanced at the trial was entirely accurate. In truth it was open to the jury to decide what facts they accepted and what they rejected from the contentions of each of the parties. It was certainly open to the jury to reject the suggestion or the allegation that the appellant had in terms said that she wished to kill the complainant and equally to reject the defence of self-defence, in the light of the way in which and the circumstances in which the appellant had picked up and used the knife. 10. In our judgment, this was a classic case where the jury should have been given the opportunity to return a verdict of unlawful wounding. In those circumstances, we have come to the conclusion that there was a failure adequately to address the jury in that regard and we quash the conviction for the wounding with intent. 11. It was not submitted at the Bar that in the light of the findings of the jury a verdict of unlawful wounding would not have followed and in the circumstances we substitute for the conviction for wounding with intent a conviction for unlawful wounding contrary to section 20 of the Offences Against the Person Act. 12. Turning to the question of sentence, we note that the learned judge clearly had considerable sympathy for this appellant having imposed a sentence far below that which falls even at the bottom end of the bottom category of offences of wounding with intent. In truth he passed a sentence much more in keeping with an offence of unlawful wounding. To mark the difference between the conviction for wounding with intent and unlawful wounding we feel it appropriate to adjust the sentence imposed and we do so by reducing the term of imprisonment from one of 2 years' imprisonment to 18 months the operation of which is suspended for a period of 2 years. The victim surcharge continues to apply.

2014_10_15-3487.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/2176/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/2176

89f62b9e788450ea463edd4e1ce9bf7adf9a00e5acae75539f15d9c70ea114e9

[2017] EWCA Crim 421

EWCA_Crim_421

2017-03-14

crown_court

No: 201602794/C5 Neutral Citation Number: [2017] EWCA Crim 421 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 14 March 2017 B e f o r e : THE PRESIDENT OF THE QUEEN'S BENCH DIVISION (SIR BRIAN LEVESON) MR JUSTICE HOLROYDE MR JUSTICE ANDREW BAKER - - - - - - - - - - - - - - - - - - - R E G I N A v RAYMOND ANDREW NEVITT - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading

No: 201602794/C5 Neutral Citation Number: [2017] EWCA Crim 421 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 14 March 2017 B e f o r e : THE PRESIDENT OF THE QUEEN'S BENCH DIVISION (SIR BRIAN LEVESON) MR JUSTICE HOLROYDE MR JUSTICE ANDREW BAKER - - - - - - - - - - - - - - - - - - - R E G I N A v RAYMOND ANDREW NEVITT - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - Mr A Mitchell QC appeared on behalf of the Appellant Mr S Trimmer QC appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE HOLROYDE: This is a renewed application for an extension of time of nearly 8 years to appeal against a confiscation order made, pursuant to the provisions of the Criminal Justice Act 1988 , in the sum of £1.6 million by His Honour Judge Steiger QC, sitting in the Crown Court at Manchester Crown Square on 2nd September 2008. 2. The learned judge had presided over two trials in which the applicant was accused. In the first, which we refer to for convenience as the "B indictment", the applicant was convicted of conspiracy to defraud. 3. The brief circumstances were that the applicant was the managing director of a company which provided training in the northwest of England. Under his direction and using false documents a group of companies called "the Ravelle Group" was set up. These companies were controlled by the applicant. 4. Companies within The Ravelle Group made applications for public funds in the form of grants for training. In fact no training occurred. Various fictitious documents were created in support of these applications. In late 2000 the Engineering and Marine Training Authority paid out £66,070. 5. In the second trial, which we refer to as the "A indictment", the applicant was convicted of five counts of fraudulent trading. Those charges related to his involvement in the dishonest promotion and management of three of the companies within the Ravelle Group. 6. It is necessary to say a little more about the chronology of those proceedings. It was on 3rd October 2006 that the applicant was convicted on the B indictment. His sentence was adjourned. He was granted bail. He then absconded. He remained unlawfully at large at all material times throughout the subsequent proceedings. On 15th December 2006 he was sentenced in his absence for the offence of which he had been convicted on the B indictment. The sentence imposed was one of 27 months' imprisonment, though that was later reduced on appeal, again heard in his absence, to a term of 18 months. 7. Then on 20th March 2008, after a trial in his absence, the applicant was convicted of the offences on the A indictment. On 20th May 2008, still in his absence, he was sentenced to terms of 45 months' imprisonment concurrent one with the other and also concurrent with the sentence on the B indictment. 8. Later in 2008, between 2nd and 5th May, confiscation proceedings under the 1988 Act were heard against the absent applicant and his four co-accused. The applicant was not represented, although the judge arranged for a representative from the applicant's former solicitors to be present and to take a note of proceedings. The prosecution contended that the benefit figure in relation to the offence on the B indictment was £77,203.32, and that in respect of the A indictment the benefit figure was £3,329,429.35. The applicant had served a statement in response to the application in relation to the B indictment but had taken no action in respect of confiscation in relation to the A indictment. 9. It was submitted for the prosecution that the applicant had put forward no evidence to discharge the burden which lay upon him to show that his realisable assets were less than the benefit figure sought. 10. The judge, with a very proper regard for the fairness of the proceedings, specifically invited prosecuting counsel to assist the court with any arguments which the prosecution thought might have been advanced by the applicant had he been present. The judge further required that the figures referred to in the various statements prepared by prosecution witnesses should be confirmed by those witnesses on oath, and the learned judge himself asked a number of questions of the witnesses. He sought, and received, confirmation that so far as was known to the prosecution, the applicant was still alive, was living in Spain and appeared to be enjoying a life-style which would require significant resources. 11. The judge took the view that the evidence in the trials he had heard showed the applicant to be a profligate spender. The judge felt it would therefore be unfair to the applicant to treat the whole of his benefit as being his realisable assets. He concluded that a fair figure for confiscation would be £1,600,000, that is to say rather less than half of the benefit figure shown in relation to A indictment. Given that the applicant had provided at least some response in relation to the B indictment, the judge adjourned that part of the confiscation application. In the event he made the confiscation order which we have mentioned and allowed the applicant the period of 6 months in which to pay. 12. It is necessary next for us to refer to section 71 of the Criminal Justice Act 1988 which so far as material provides: "(1) Where an offender is convicted, in any proceedings before the Crown Court ... of an offence of a relevant description, it shall be the duty of the court— (a)if the prosecutor has given written notice to the court that he considers that it would be appropriate for the court to proceed under this section, or (b)if the court considers, even though it has not been given such notice, that it would be appropriate for it so to proceed, to act as follows before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct." 13. On behalf of the applicant Mr Andrew Mitchell QC puts forward a number of grounds of appeal. In particular, he argues that it was unlawful for the learned judge to make the confiscation order in the absence of the applicant. On that basis, he submits that the extension of time should be granted even though it is, on any view, a very lengthy extension and one which is solely attributable to the applicant having absconded from justice. We therefore consider first the ground of appeal which causes Mr Mitchell to argue that it was unlawful to make the order in the applicant's absence. 14. Both Mr Mitchell and Mr Stuart Trimmer QC, on behalf of the respondent, have invited the court's attention to the decision of this court in the case of R v Spearing [2011] 1 Cr App R(S) 101. That case also was concerned with confiscation proceedings under the Criminal Justice Act 1988 , which had taken place in the absence of the appellant. 15. Silber J, giving the judgment of the court, said this at paragraphs 11 and following of his judgment: "11. The grounds of appeal are that the judge was wrong to proceed in the applicant's absence and that he should have postponed the hearing until the applicant was apprehended. 12. The case for the applicant therefore depends on there being some obligation on the part of the judge to defer holding confiscation proceedings until an absent defendant, who had also been absent during the trial, decided that he would re-appear. 13. The confiscation proceedings were, as we have indicated, conducted under Part 6 of the 1988 Act . There is nothing in those proceedings which precludes confiscation proceedings taking place in the absence of a defendant who decides to abscond. Nor can the applicant receive any assistance from either common law or the European Convention on Human Rights because in Jones [2003] 1 AC 1 , the House of Lords held that when a defendant absconded from trial, he thereby waived his right to legal representation both at common law and under the European Convention. We would consider that by analogy this approach would also apply to confiscation proceedings, so that where a defendant absconds and leaves his legal representative without any instructions, this would, at common law at least, enable the court to continue with the confiscation hearing in his absence." 16. Silber J then went on to deal with a submission made by way of analogy between the 1988 Act and the Proceeds of Crime Act 2002 . 17. Mr Trimmer argues that that authority conclusively establishes that it was lawful for the judge in this case to proceed in the absence of the applicant. Mr Mitchell contends to the contrary. He seeks to draw an analogy with the Drug Trafficking Act 1994 , a statute which was not considered by this court in the case of Spearing . 18. Mr Mitchell's argument is as follows. The 1988 Act itself is silent as to whether confiscation proceedings may be heard in the absence of the offender and it makes no provision by which an absent offender, upon his subsequent return to the jurisdiction, could seek review of any order made in his absence. The only remedy provided for such an absent offender would be his right of appeal, which as a matter of common sense would be likely to involve an application for an extension of time. 19. Mr Mitchell acknowledges that the position under the Drug Trafficking Offenders Act 1986 was similar in this respect to the position under the Criminal Justice Act 1988 . But, he points out, only a few years later, when Parliament enacted the Drug Trafficking Act 1994 , Parliament did provide a comprehensive scheme by which a defendant, in whose absence a confiscation order had been made, could invite the court to review that order. 20. Mr Mitchell contends that the inference to be drawn from that brief legislative history is that Parliament in 1988 could not have intended that an absconding offender whose confiscation proceedings came within the Criminal Justice Act 1994ld be dealt with less favourably than an absconding drug trafficker whose confiscation fell to be dealt with under the 1994 Act. 21. The conclusion to be drawn, submits Mr Mitchell, is that Parliament when enacting the 1988 Act must have intended that no confiscation order would be made in the absence of the offender. So, submits Mr Mitchell, the court in this case should simply have adjourned the confiscation proceedings for as many years as it may have taken for the applicant either to return voluntarily or to be returned to the jurisdiction. 22. Mr Mitchell points out, and seeks support for his argument from the fact that, amendments were made to the 1988 Act in both 1993 and 1995, but the opportunity was not taken to introduce into the 1988 Act a scheme for absent offenders, similar to that in the Drug Trafficking Act 1994 . 23. Mr Trimmer, in response, submits that there is a simple answer to this point. It is, argues Mr Trimmer, that the applicant was dealt with under the 1988 Act . The 1988 Act , by analogy with the decision of the House of Lords in Jones , must be taken to have contemplated proceedings in absence and the applicant can derive no support from different statutory judgments under different provisions. Mr Trimmer submits that the fact that Parliament did not introduce any relevant amendment in either 1993 or 1995 confirms that view. He points out moreover, that when the 2002 Act was passed, transitional provisions preserved the 1988 Act in relation to offences committed before the 24th March 2003. 24. We have reflected upon these competing arguments. We are unable to accept Mr Mitchell's submissions. The decision in Spearing is, in our judgment, entirely correct in drawing the analogy with the decision of the House of Lords in Jones . We do not accept Mr Mitchell's suggestion that if the points which he now makes to us had been before the court in Spearing , then the decision in that case would have been different. We are not persuaded, despite Mr Mitchell's advocacy, that it is possible or appropriate to reason backwards in time from the statutory regime enacted in 1994 in relation to drug traffickers to draw an inference as to Parliament's intention in relation to a different type of offender in 1988. The submissions which Mr Trimmer makes in this regard are, in our view, well founded. 25. It follows that this first and primary ground of appeal advanced by Mr Mitchell fails. The confiscation order was not unlawful on the basis which Mr Mitchell suggests. 26. That decision is, in truth, sufficient to conclude the matter. The only cogent basis on which such a lengthy extension of time could be sought might be the proposition that an unlawful order had been made. Since however, we find that submission to be unarguable, it follows that there is no proper basis for an extension of time. 27. Out of deference to Mr Mitchell's submissions, we do nonetheless deal very briefly with the three other grounds of appeal which he advanced. First, he questioned whether any sufficient notice had been given under section 71 of the 1988 Act . There seems to us to be no merit in this point. Notice was undoubtedly given in relation to the B indictment because the applicant served a statement in response. There has been no suggestion until now that no sufficient notice was also given in relation to the A indictment. The prosecution assert that a notice was served and although the prosecution are at this stage only able to produce an unsigned filed copy of that notice, it seems to us that the applicant cannot realistically expect to benefit from any loss of documentation which has occurred during the many years when he has been unlawfully at large. 28. In any event, even if there were some doubt about the service of a valid notice in relation to the A indictment, there is clear authority that the absence of such a notice would not be fatal to the validity of the confiscation order (see R v Tahir [2006] EWCA Crim 792 at paragraph 35). Moreover, even if there were a deficiency in the service of notice, no possible injustice could have flowed from it. It was plainly appropriate for the learned judge to proceed to consider confiscation in relation to both indictments. If the point now made on the applicant's behalf had been made at that time rather than nearly 8 years later, the learned judge would no doubt have taken the course available to him under section 71(1) (b)of the 1988 Act . 29. Next, it is submitted that the decision of the learned judge to allow 6 months to pay the confiscation order was unjust. It was based, submits Mr Mitchell, on no proper enquiry into the practicability of realising such assets as the applicant possessed. The problem with this argument is of course that the burden lay on the applicant and he had taken no steps whatsoever to inform the court as to his assets. The judge was satisfied that he had hidden assets and made a generous reduction from the benefit figure in an endeavour to be fair to the applicant. It is difficult to see what further enquiry could possibly have been made by the learned judge into the practicability of realising assets which were, by definition, hidden from the court's view. 30. Finally, Mr Mitchell submits that the learned judge in the course of his ruling misunderstood the circumstances in which an offender who has been made subject to a confiscation order may apply for a certificate of inadequacy. Mr Mitchell points out the clear distinction between such an application - which is based upon a fall in value of an asset which was identified at the time when the order was made and upon which a value was placed at that time - and an appeal against the court's decision as to the extent of the realisable assets. 31. We accept Mr Mitchell's arguments on this point which we find to be correct. We accept that the learned judge did fall into error in this regard. The error is not however one which affects the validity of the order, not least because the judge in any event made such a substantial reduction from the proven benefit figure in making his finding as to the realisable assets. 32. In those circumstances, we conclude that there is no basis upon which the necessary extension of time can or should be granted. The renewed application for that extension accordingly fails and is dismissed. 33. MR TRIMMER: My Lords, the Crown seek an order for the costs of the prosecution in this respect. It may seem a fruitless application but those are my instructions. 34. MR MITCHELL: My client is in prison, and has now a debt approaching £3 million, given the interest. My Lord it is only an application. 35. PRESIDENT OF THE QUEEN'S BENCH DIVISION: This was an application for leave only. We will not make an order for costs. 36. MR MITCHELL: We are grateful. Thank you for the hearing.

2017_03_14-3947.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/421/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/421

23ef833953386c5d0d062686037c9b9f6ca535fef170a23bec6c1321a46d1ca1

[2011] EWCA Crim 7

EWCA_Crim_7

2011-01-19

crown_court

Case No: 201000828 D4 Neutral Citation Number: [2011] EWCA Crim 7 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM READING CROWN COURT HER HONOUR JUDGE SMITH Royal Courts of Justice Strand, London, WC2A 2LL Date: 19/01/2011 Before : LORD JUSTICE PILL MR JUSTICE TREACY and MR JUSTICE LINDBLOM - - - - - - - - - - - - - - - - - - - - - Between : Edward Martin Booker Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Case No: 201000828 D4 Neutral Citation Number: [2011] EWCA Crim 7 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM READING CROWN COURT HER HONOUR JUDGE SMITH Royal Courts of Justice Strand, London, WC2A 2LL Date: 19/01/2011 Before : LORD JUSTICE PILL MR JUSTICE TREACY and MR JUSTICE LINDBLOM - - - - - - - - - - - - - - - - - - - - - Between : Edward Martin Booker Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Maguire (instructed by BCL Burton Copeland ) for the Appellant Mr Hope (instructed by CPS Reading ) for the Respondent Hearing dates : 14 December 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pill : 1. On the 10 August 2009 on retrial in the Crown Court at Reading before Her Honour Judge Smith and a jury Edward Martin Booker was convicted of conspiracy to supply a controlled drug of class A (cocaine) (Count 1). He was sentenced to 5 years imprisonment with a direction that 2 days spent in custody before his original sentence should count towards sentence. Booker had been convicted at the first trial on 3 September 2007. On the 19 th September 2008, the conviction was quashed in this court and a retrial ordered. The court held that evidence at the original trial had been unfairly introduced and used by the prosecution. 2. Booker appeals against conviction by leave of the single judge. If not already granted, the court grants an extension of time of 154 days in which to appeal against conviction. 3. At the retrial, the appellant was charged with Philip Colyer and Robert Breskal. Colyer pleaded guilty to count 1. He was sentenced after the trial to 45 months imprisonment. In the course of the trial, Breskal pleaded guilty to money laundering contrary to section 328(1) of the Proceeds of Crime Act 2002 (count 2) and was found guilty of conspiracy to supply a class C drug (cannabis). He was sentenced to 27 months imprisonment. He was acquitted on count 1. Breskal had not been charged at the first trial. 4. The issue which arises is whether there was an error of law, or an unfair retrial, by reason of the appellant being retried with Breskal who was not a defendant in the first trial. An application that there should be separate trials of the appellant and Breskal was refused by the judge on 17 November 2008. The judge relied on the circumstances of the conspiracy alleged, to which we will refer. Counsel then appearing for the appellant did rely on the absence of meetings between the appellant and Breskal. He also submitted that it had been the conduct of the prosecution which had led to the quashing of the conviction at the first trial and “the interests of the defendant, who now has to be tried for a second time, should be taken into account”. Further, it was submitted that it may be “one of those rare circumstances in which two single trials could be shorter than a joint trial”. 5. The prosecution case at both trials was of an agreement to supply cocaine from Impact Studios in Reading between 14 December 2005 and 17 July 2006. The premises were under observation by CCTV. It was alleged that Alec Chandler was the head of a cocaine distribution ring in which others, including the appellant, were involved. Chandler and others were convicted at the first trial. The case against the appellant at both trials was that he was a runner for the network. 6. Against the appellant, the prosecution relied on visits by him to the studios on 2 occasions on 7 April 2006, 2 occasions on 10 April and further occasions on 11 April and 13 April. Six visits on 23 May and 3 visits on 24 May were also alleged. The appellant was observed to be carrying boxes or bags to and from Impact Studios. Reliance was also placed on telephone activity between the appellant and conspirators who, as the jury at the second trial knew, had already been convicted on count 1. The appellant’s case was that he had been involved in the distribution of counterfeit clothing but not of drugs. 7. For the appellant, Mr Maguire relied on the decision of this court in R v Hemmings & Others [2000] 1 Cr App R 360, Clarke LJ presiding. The case was concerned with a retrial proceeding on different charges, counts of theft, from the conspiracy to steal charged at the first trial. That was held to have been permissible in the particular circumstances. No contrary submission had been made at the trial. That particular issue does not arise in the present case but Mr Maguire seeks to extract from Hemmings a general principle that it would not be permissible to allow amendment of an indictment if to do so puts a defendant in a worse position than he had been at the original trial. 8. Before considering the submission in more detail, it is necessary to consider the circumstances in which Breskal was joined and the impact of his joinder. At the appellant’s retrial, Breskal too was claimed to be supplying the network with drugs and reliance was placed on visits to the premises, one of which was close in time to a visit by the appellant. 9. Breskal was arrested in May 2006, that is about two months before the appellant’s arrest. Breskal was told that he would not be charged. On 5 August 2008, Breskal was re-arrested in relation to the conspiracy to supply class A drugs and, on the same day, was charged with count 1. The evidence against Breskal emerged during the first trial, that is by September 2007. 10. The first point taken is that Breskal was not charged until August 2008, that is a year later. He was charged only after the appellant’s appeal against conviction had been lodged. Had Breskal been charged earlier, his trial would have proceeded before the retrial of the appellant and the prejudice to the appellant would not have arisen. Two other conspirators, Grove and Wright, were dealt with separately, each having pleaded guilty (2 January 2008 and 13 March), following arrest in late 2007 (September and December). Colyer was arrested in February 2008. There was a conference with counsel on 23 April and the CPS authorised the continuation of the prosecution. 11. An explanation for the delay in charging the appellant was sought from the prosecution and information became available after the hearing before this court. The appellant’s solicitors have commented on it in writing. Having recited the above dates, the responsible officer stated: “In August 2008, as we had opened this line of enquiry to deal with Colyer, it made sense to try and scoop up Robert Breskal as being the final person that was outstanding in the investigation and join them together in the prosecution.” 12. That does not provide an explanation for the delay in the appellant’s case. It was stated that the “initial trigger” for Breskal’s re-arrest “began” in September 2007, when Grove was arrested, but no action was taken against Breskal for almost a year. Breskal’s involvement with Wright had been established by September 2007 at the original trial. Why Breskal was treated only as a “scoop up” when proceedings were taken against Colyer is not explained. In those circumstances, it was unfair to require the appellant to be tried with Breskal, it was submitted. 13. At the time the application for a separate trial for the appellant was refused, Breskal’s defence appeared to be that he too had visited Impact Studios for purposes unconnected with drugs, that is the delivery of clothing. Five days into the trial, he pleaded guilty to an offence of conspiracy to supply cannabis, a charge having been added, and to money laundering. The prosecution nevertheless proceeded against him on count 1. He gave evidence, after the appellant had given his evidence. In his evidence, Breskal admitted delivering boxes of cannabis to the Studios. He knew it was cannabis because he was told it was and because he could smell it. He admitted that the account he had previously given that the boxes delivered on 22 May contained t-shirts and long sleeved shirts was untrue. Breskal said that he had relied on the lie as a “smoke screen” in order to explain why he had delivered goods to Impact Studios. 14. Breskal was asked about his visit on 22 May: “Q On 22 nd May you delivered the boxes we have seen and we have seen Mr Booker carrying boxes out from Impact Studios? A. Yes. Q Did they look to you like the same boxes that you had delivered, Mr. Breskal? A. I – I wouldn’t know if they were or not. I couldn’t say. They were – they were boxes, they were similar boxes.” 15. We agree with Mr Maguire that, in the event, the appellant’s defence was adversely affected, and substantially so, by the evidence of his co-defendant Breskal. The appellant was seen to carry away from Impact Studios boxes which, from the video observation, appeared identical to the boxes delivered by Breskal which Breskal said contained cannabis. No application was made on behalf of the appellant to discharge the jury when Breskal had given his evidence. 16. The application to amend the indictment in November 2008 was to add Breskal and Colyer, already alleged to be conspirators, as defendants at the appellant’s retrial. Section 5 of the Indictments Act 1915 provides: “(1) Where, before trial, or at any stage of trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice . . .” For the prosecution, Mr Hope submitted that, evidence against Breskal having emerged at the first trial, the judge was entitled under the section to permit the amendment adding Breskal as a defendant. The conspiracy was centred upon the delivery to and collection of goods from Impact Studios and it was in the interests of justice that those involved in such traffic should be tried together. Mr Hope accepted that a defendant in such circumstances would be better off being tried alone but each person alleged to be involved was not entitled to a separate trial. 17. The relevance of this being a retrial needs to be considered. Provision for retrial is made in section 7 of the Criminal Appeal Act 1968 , as amended: “(1) Where the Court of Appeal allow an appeal against conviction and it appears to the Court that the interests of justice so require, they may order the appellant to be re-tried. (2) The person shall not under this section be ordered to be retried for any offence other than- (a) the offence of which he was convicted at the original trial and in respect of which his appeal is allowed as mentioned in sub-section (1) above; (b) an offence of which he could have been convicted at the original trial on an indictment for the first-mentioned offence; or (c) an offence charged in an alternative count of the indictment in respect of which the jury were discharged from giving a verdict in consequence of convicting him of the first-mentioned offence.” 18. In Hemmings , at page 371G to 372D, the court stated its reasons for permitting amendment in that case, where the issue specifically dealt with by section 7(1) arose: “(1) Section 5(1) of the 1915 Act is in wide terms. If it is construed by reference to its terms, the judge had power to permit the amendment. The indictment was defective within the meaning of section 5(1) for the same reason as it was defective at the first trial. At the first trial the amendment would have been ‘necessary to meet the circumstances of the case’ within the meaning of section 5(1) for the reasons given in paragraph 7 above. Further it could not have been said that the amendment could not have been made without injustice. (2) This Court could not have ordered a retrial under section 7(1) of the 1968 Act on an indictment containing the theft offences because of the terms of section 7(2). However, there is nothing in section 7 or 8 of the 1968 Act which expressly affects the power of the trial judge at a trial (which logically must include a retrial) to permit the amendment of the indictment preferred pursuant to an order of this Court under section 7 . Neither section is concerned with amendment. Section 7(2) is concerned with the order and section 8 with the subsequent procedure. (3) It is not implicit in section 7(2) that the trial judge’s power to permit any amendment under section 5(1) is proscribed. There is no reason why the trial judge should not permit an amendment under section 5(1) if the criteria in that section are satisfied. (4) In the instant case those criteria are satisfied because the amendment was ‘necessary to meet the circumstances of the case’ and, not only could the amendment be made without injustice, but the amendment served the interests of justice for the reasons given above. (5) The position would almost certainly have been different if the proposed amendment had put the appellants in a worse position than they had been in at the original trial. As we see it at present, it would not be permissible to permit the amendment of an indictment if to do so would put the defendant in a worse position than he had been after the original trial because any decision on an application to amend must respect the statutory purpose behind section 7 of the 1968 Act . (6) In this case the amendment was consistent with that statutory purpose and not inconsistent with it. In our judgment, section 7 should not be construed as impliedly limiting the powers which the trial judge would otherwise have under section 5(1) of the 1915 Act .” 19. Mr Hope submitted that Hemmings was concerned only with the power to charge a different offence at the retrial and the court’s conclusion that section 7 should not be construed as impliedly limiting the powers which the trial judge would otherwise have under section 5(1) of the 1915 Act . Mr Maguire relied on the concern expressed by the court that amendment should not put the appellant in a worse position than he had been at the original trial. Mr Maguire accepted that evidence not available at the time of the first trial may be called at the second trial but submitted that, at the time the amendment was allowed, the appellant was in a worse position as a result of the “unknown quality” of the added defendant. In the event, the potential for disadvantage was amply fulfilled. 20. The addition of Breskal as a defendant put the appellant in a worse position than he had been in at the original trial, it was submitted. Moreover, at page 371D-F of Hemmings the court appeared to accept the prosecution’s reference to the “underlying purpose of section 7 ” as being “to ensure that justice is done while at the same time protecting the defendant by ensuring that he is not put in a worse position than he was at the original trial”. Mr Maguire submitted that the appellant was undoubtedly in a worse position and that, on a retrial, a joint trial involving him and Breskal was unfair. Moreover, the situation had only arisen because of the unexplained delay of the prosecution in charging Breskal. 21. At the heart of the issue is the question whether an amendment to an indictment, which would otherwise have been unobjectionable as necessary to meet the circumstances of the case, becomes objectionable because, for the appellant, this was a retrial. But for the retrial aspect of the case, we have no doubt that the application to join a conspirator as a defendant was on the facts permissible. Co-conspirators should normally be tried together and the circumstances of the conspiracy alleged in this case made that course appropriate, subject to consideration of the particular circumstance that, for the appellant, it was a retrial. 22. The delay in charging Breskal is a notable feature of the case and, given the available evidence, it is surprising that proceedings were not taken against him in late 2007 when action was taken against Grove and Wright. We are not, however, able to conclude that this was anything more than a lack of focus on the part of the prosecution. There can be no suggestion that there was an abuse of process in relation to Breskal, and none was suggested. We are not prepared to infer that the delay was permitted to occur, or that Breskal was arrested at the time he was, with a view to prejudicing the appellant in the event of a retrial. The sequence of events and the explanation, such as it is, does not permit that inference. The “scoop up” approach, though unattractive, does not demonstrate that the motive or intention was to prejudice the appellant. 23. The appellant was, in the event, put at a disadvantage at the retrial because he was tried with Breskal. Defendants are often at a disadvantage at a retrial, as compared with the trial, because of supervening events or better preparation of the prosecution case. 24. Like the court in Hemmings , we have not found the issue an easy one. We have come to the conclusion that there was no error of law in the procedure followed: (1) Section 7(2) of the 1968 Act deals with charging for different offences and specific situations in which that may arise. Hemmings was concerned specifically with the substitution of a different charge. (2) A ban on adding a defendant to the indictment does not appear in section 7(2) and section 5(1) of the 1915 Act should not be applied as if it did. Section 7(2) does not proscribe the exercise of the trial judge’s power to permit an amendment under section 5(1) . (3) There is no general principle that previously absent co-conspirators cannot be tried with a conspirator subject to retrial. (4) While we would accept that it may be necessary to take other factors into account when considering an application to amend in the case of a retrial, the interests of justice require that too restrictive an approach should not be taken. A defendant may often be in a worse position at a retrial, amendment or not, because further evidence has emerged, or is better presented, and he cannot normally complain about that. (5) We accept that there could be circumstances in which an application to join a defendant at a retrial could be an abuse of the process of the court. The requirement of fairness inherent in section 7(2) could spill over into consideration of a decision to add a defendant. By using the language it did, the court in Hemmings , particularly at reason (5) cited above, probably had broader considerations in mind than the change of charge specifically considered. If a court found that the prosecution were manipulating the process of the court, and hence the fairness of the retrial, by attempting to add a defendant, the court would not permit it. (6) Notwithstanding the absence of an explanation for the delay in charging Breskal, we are not prepared to conclude that the delay was contrived to make possible a joint trial or that the prosecution were abusing the process of the court when applying to join Breskal as a defendant at the retrial. In the event, it worked against the appellant but it is not established that the prosecution abusively took advantage of the situation to prejudice the appellant in circumstances where Breskal’s change of position emerged only during the trial. (7) In considering whether there has been an abuse, it is appropriate to have in mind the information available at the time the amendment was granted, which in this case did not include Breskal’s dramatic change of position. Moreover, when that change did occur, no application to discharge the jury was made on behalf of the appellant. (8) The judge retained a discretion in deciding whether to permit the amendment of the indictment. Fairness to a defendant being retried must be central to the decision. In our judgment, the judge was entitled to make the decision she did when she did. (9) The case against the appellant was a strong one and we have no doubts about the safety of the verdict. 25. For these reasons, the appeal is dismissed.

2011_01_19-2600.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/7/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/7

ac8f3d087d5716ee4135d63f9efe71fb7a2c4c53772e81d025ec63ec8fd2ed4b

[2019] EWCA Crim 1344

EWCA_Crim_1344

2019-07-26

crown_court

Neutral Citation Number [2019] EWCA Crim 1344 Case No: 201900316 A2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT OXFORD HHJ ROSS S20180012 Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/07/2019 Before : LORD JUSTICE GROSS MR JUSTICE WILLIAM DAVIS and MR JUSTICE GARNHAM - - - - - - - - - - - - - - - - - - - - - Between : THAMES WATER UTILITES LTD Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number [2019] EWCA Crim 1344 Case No: 201900316 A2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT OXFORD HHJ ROSS S20180012 Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/07/2019 Before : LORD JUSTICE GROSS MR JUSTICE WILLIAM DAVIS and MR JUSTICE GARNHAM - - - - - - - - - - - - - - - - - - - - - Between : THAMES WATER UTILITES LTD Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MR S MEHTA for the Crown MR K FUAD QC and MS A PRYOR for the Appellant Hearing dates : 23 rd July 2019 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Mr Justice William Davis: Introduction 1. On 16 January 2018 Thames Water Utilities Limited (“Thames Water”) pleaded guilty at the first opportunity to an offence contrary to Regulation 38(1)(a) of the Environmental Permitting (England and Wales) Regulations 2016 by causing a discharge in contravention of Regulation 12(1)(b) of the 2016 Regulations . That discharge was of untreated sewage from a pumping station at Milton-underWychwood in the Cotswolds into a nearby brook. The case was committed to the Crown Court for sentence. 2. On 21 December 2018 in the Crown Court at Oxford Thames Water was fined £2,000,000. A victim surcharge order was made in the sum of £120.00. Thames Water was ordered to pay prosecution costs in the sum of £79,991.57. 3. On 8 February 2019 the case was re-listed pursuant to Section 155 of the Powers of Criminal Courts (Sentencing) Act 2000. When imposing sentence on 21 December 2018 the judge had said that, if Thames Water were to make contributions to local wildlife and environmental charities totalling £200,000 within the period permitted for variation of sentence, the fine would be reduced by the same sum. Such contributions were made. Thus, on 8 February 2019 the judge reduced the fine to £1,800,000. We note that Thames Water was not represented at this slip rule hearing. Because this was a variation which did not lead to the company being dealt with more severely than the sentence originally imposed and because the company had proper notice, we are satisfied that there was compliance with the provisions of CPR 28.4 (4) and that the power to vary the sentence was properly exercised. 4. Thames Water now appeals with the leave of the single judge against the fine imposed. Given the history as set out above, the sum with which we are concerned is £2,000,000. The facts 5. Thames Water is the UK’s largest water and wastewater company. It operates 4,780 sewage pumping stations and 351 sewage treatment works. This case concerns the Bruern Road sewage pumping station. It serves the villages of Idbury and Fifield in North Oxfordshire. The pumping station pumps the raw sewage from those villages with a combined population of around 550 people to the sewage treatment works at Milton-Under-Wychwood. 6. The pumping station operates using two submersible pumps. They are intended to operate on a duty/standby basis. At any given point one pump is sufficient to cope with normal flow conditions. If that pump fails or is inhibited in its operation, the other pump on standby will be activated so that the sewage continues to be pumped to the treatment works. The operation of the pumps rotate so as to spread the load on each pump. Activation of the standby pump is controlled by a “smart” controller device i.e. technological equipment monitoring the operation of the pumps. A significant component within the device is an ultrasonic sensor which detects the level of sewage within the well of the pumping station. Failure of the sensor will mean that the smart controller device does not operate. In those circumstances the pumping station can only operate on one pump unless and until someone goes to the pumping station and deals with the fault. When only one pump is operational, there is no standby system. If that pump fails to operate, there is flooding of sewage into freshwater streams. Such flooding will occur within 2 hours 45 minutes of the failure of all pumps. 7. On the morning of 8 August 2015 at 9.33 two alarms from Bruern Road pumping station were received at Thames Water’s operation control centre in Reading. They were high priority alarms and they indicated (a) insufficient pump capacity to deal with incoming sewage and (b) a high level of sewage in the well of the pumping station. The cause of these alarms was the failure of the only operative pump at the pumping station. The alarms were acknowledged by a member of staff at the control centre but no immediate steps were taken to respond to the alarms. Someone should have attended the pumping station within 3 hours. That did not happen. The following afternoon shortly before 13.30 the alarms were cleared because the pump restarted. By that time around 82,000 litres of untreated sewage had gone into Idbury Brook causing serious pollution for a distance of around 50 metres. 146 bullhead fish were killed as a result of the sewage spillage. Other aquatic wildlife was able to escape the polluted area. The Environment Agency became aware of the position when a member of the public reported dead fish in the brook, this report being made on the evening of 9 August 2015. That agency notified Thames Water which had been unaware of the polluting event. 8. After the event it became apparent that one of the pumps at the pumping station had been out of action for much of the 12 months prior to the incident in August 2015. In August 2014 a failure of the sensor was identified. It was not rectified until January 2015 during which time the pumping station was operating with only one pump. The same situation arose from May 2015, the second pump being switched off during a maintenance visit. Further, over that 12 month period, there were many instances of pumping station failure alarms being received from Bruern Road at the control centre, those alarms not being dealt with sufficiently or at all. This could have been because of understaffing at the control centre or because of a belief that the alarms were false alarms or a combination of those factors. In either event over a number of months the state of affairs at the pumping station and the response of Thames Water staff to the position were such that there was a heightened risk of pollution from Bruern Road pumping station. The proceedings in the Crown Court 9. On 5 September 2018 Thames Water tendered a basis of plea. In relation to culpability it argued that this was a case properly described as a negligent breach. The company said that the smart controller device was properly maintained but accepted that it failed to pay sufficient heed to the very frequent alarms in the period from June 2015 up to the date of the incident, those alarms indicating that pumps at Bruern Road were inoperative. In particular, there was a failure to investigate particular alarms on the day before the incident which led to pollution. The company also accepted that there was insufficient training of control centre staff as to how to make best use of the features at the centre. As to harm it was argued that it was in Category 3 because of the minor and localised nature of the impact with a short recovery time. 10. The prosecution responded to the basis of plea. They argued that culpability fell within the definition of reckless. They pointed to the evidence that the smart controller device was inadequately maintained for around 7 months prior to the incident. They said that there had been inadequate response to alarms over the same period. 11. The judge conducted a Newton hearing on four different days between 8 November and 21 December 2018. He gave his findings in an oral ruling delivered on 21 December 2018. At the outset he gave his headline findings: reckless in terms of culpability by reason a failure to put in place and to enforce systems which could be expected to avoid commission of the offence; Category 3 harm but at the upper end of the category. 12. In relation to the issue of culpability the judge said that Thames Water had placed too much emphasis on technological solutions to the exclusion of the need to integrate those solutions with the people employed to apply them. He found that the second pump at Bruern Road had been either switched off or running ineffectively for the best part of a year prior to the incident. This had happened because the warnings given by the technology had not been heeded. That was due to inadequate training of control room staff coupled with insufficient staffing of the control room. The judge concluded that, because of the number of alarms, the staff assumed that there was a fault in the alarm system rather than a fault at the pumping station. The judge also considered that there was a failure to adopt proper maintenance systems. When faults were identified, whether with the sensor or with a pump, nothing was done for considerable periods so as to create a serious risk of environmental hazard. 13. As to harm, the judge found that the sewage spill had been relatively minor and localised. He accepted that in the event there had been modest damage to the environment and to wildlife albeit that the spill had gone on for many hours, possibly up to a day. He also noted the sensitivity of the surrounding water courses. 14. There is and can be no challenge to the judge’s findings of fact. Further, the inferences he drew from his findings of fact are not the subject of challenge. The sentencing remarks 15. Thames Water is a very large company. At the time of the sentence hearing its annual turnover was approximately £2 billion. The operating profits in the most recent financial statements were around £2 million per day. The judge in his sentencing remarks referred to turnover of £20 billion per year. This was clearly a slip of the tongue. Elsewhere in the course of the hearing he acknowledged the true figure. 16. The judge did not repeat his findings as to culpability and harm when he came to sentence, that exercise occurring on the same day as his judgment in relation to the Newton hearing. He referred to the fact that Thames Water had a number of previous convictions for environmental offences. He mentioned two previous convictions in particular. First, in March 2017 at Aylesbury Crown Court Thames Water was fined a total of £20 million for a series of offences committed between 2012 and 2014. Second, in 2014 Thames Water was fined £250,000 for offences committed in the summer of 2012. That fine was imposed at Reading Crown Court. The sentence was subsequently considered by the Court of Appeal. We shall return to the judgment of this court in that case. The judge commented that the offence with which he was dealing was “of a hugely lower magnitude” than the offences in relation to which sentence was imposed at Aylesbury. But he noted that, whilst the consequences of the breaches dealt with at Aylesbury were on a different scale, the causes of the breaches were similar to the factors which led to the offence with which he was dealing. 17. The judge accepted that Thames Water had pleaded guilty at the first opportunity. He said that the Newton hearing was essential to allow him to reach a proper conclusion as to where the case fell within the sentencing guidelines. He described it as “a voyage of exploration”. Later in his sentencing remarks he said “full credit is there”. Both parties to the appeal agree that the judge decided that Thames Water was entitled to full credit for the plea of guilty. We consider that this was a generous conclusion. The substantial area of dispute between the parties was the level of culpability. The judge found against Thames Water on that issue. No complaint could have been made had the judge reduced the credit for plea to around 20%. He did not do so. However, we shall abide by his conclusion in considering the sentence he imposed. 18. The judge said that “there has to be a sense of proportionality”. He asked rhetorically where this case fell within the range of other cases involving Thames Water. He said that it came “nowhere near the Aylesbury incident” and was “closer in likeness to the episode dealt with at Reading Crown Court”. He found that the previous convictions were a severely aggravating feature, not least because the failings apparent in those instances had been permitted to persist within the organisation. The judge also noted the environmental sensitivity of the site affected by the pumping station. 19. In terms of mitigation the judge found that there had been some steps taken to remedy the problems albeit that he was unconvinced about the issue of training. He accepted that Thames Water had shown remorse, noting the offer to pay sums to local environmental charities. 20. Towards the end of his sentencing remarks the judge referred to the sentencing guidelines i.e. the Sentencing Council Definitive Guideline for Environmental Offences. He said that the guidelines “end, in terms of the highest category, with organisations which have far far lower levels of turnover and profitability and it is important to retain a sense of proportionality about all of this”. Having dealt in a little detail with the charities to which donations were to be made the judge simply said “the fine I’m going to impose is one of £2,000,000”. The grounds of appeal 21. Three grounds of appeal are argued. They are inter-related. First, it is said that the judge did not comply with his duty to state his reasons for deciding on the sentence imposed. The argument is that he did not explain how he reached the figure of £2 million. Linked to that is the proposition that the judge did not engage in a step by step exercise as required by the Sentencing Guidelines. Second, the level of fine before credit for plea was manifestly excessive. Had full credit not have been given the fine would have been in the region of £3 million. Third, the judge drew a parallel with the case dealt with in Reading where the fine was £250,000. Taking that as a benchmark there was no proper basis to increase the fine in this case by a factor of 8. 22. We agree that the judge did not engage fully in a step by step approach as required by the Sentencing Guidelines. We accept that his sentencing remarks failed to set out clearly how he reached a figure of £2 million as representing the appropriate fine. Of itself that does not take Thames Water very far. The task of this court is to determine whether a sentence in any given case was manifestly excessive or wrong in principle. That task is not made easier if a judge fails to follow a structured approach to sentencing. Equally, such a failure does not invalidate the sentence. It follows that we must move to consider the second ground, namely that the sentence was manifestly excessive. We shall do so by applying the Sentencing Council Definitive Guideline. 23. The judge in his findings at the conclusion of the Newton hearing reached a clear view on the issues of culpability and harm. We have set them out above. It follows that the judge dealt appropriately with Step Three as required by the guideline. We adopt his findings. The next stage was for the judge to consider the starting point and category range by reference to the tables at Step Four of the guideline. The judge made passing reference to this at the end of his sentencing remarks when he referred to the highest category. Large companies – companies with a turnover of £50 million and over – are the subject of a grid of financial starting points and ranges. For a reckless breach with Category 3 harm the starting point is £100,000 with a range of £60,000 to £250,000. The guideline deals with very large organisations by saying that where turnover “very greatly exceeds the threshold for large companies, it may be necessary to move outside the suggested range to achieve a proportionate sentence”. The judge used the term “proportionate” when sentencing but he did not explain how a much larger fine could be proportionate given the nature of the organisation to be sentenced. 24. As part of Step Four the sentencer is required to consider a non-exhaustive list of aggravating and mitigating factors. The judge carried out such an exercise. The guideline emphasises the aggravating effect of relevant recent convictions, namely they are likely to result in a substantial upward adjustment and, in some cases, to lead to a move beyond the identified category range. 25. In this case the judge referred specifically to two previous convictions of Thames Water. He was provided with a note and accompanying schedule which set out 181 previous convictions resulting from breaches of environmental regulations dating back to 1991. A significant number related to sewage pumping stations and/or pump failures. The convictions were admitted by Thames Water. 26. Steps Five and Six in the guideline require the sentencer to step back and to review whether “the sentence as a whole meets, in a fair way, the objectives of punishment, deterrence and removal of gain derived through the commission of the offence”. There was no explicit stepping back by the judge in this case. He did not set out the relevance of the size of the organisation to the level of fine required to effect adequate punishment or deterrence. Had he done so, the judge inevitably would have increased the level of the fine very substantially beyond that appropriate for a large company. 27. The final Step of relevance to this case was the extent to which the sentence should be reduced to give proper credit for the plea of guilty. The judge may not have stated the discount in clear terms at the point of imposing sentence but he did state that full credit would be given. 28. Before we consider what the result would have been had the judge followed the Steps as set out in the guideline, we shall consider what was referred to by the judge as the Reading case since it forms the basis of the third ground of appeal. Our consideration of that case is in the context of the resulting appeal: R v Thames Water Utilities Limited [2015] EWCA Crim 960 . The principles set out by the court in that case are wholly apposite to the facts in this case. They are as follows: • It is of particular importance in the case of such very large commercial organisations to take into account the financial circumstances of the offender as required by s.164 of the Criminal Justice Act 2003 . This should ensure that the penalty imposed is not only proportionate and just, but will bring home to the management and shareholders the need to protect the environment. • The Court is not bound by, or even bound to start with, the ranges of fines suggested by the Sentencing Council in the cases of organisations which are merely "large". • Previous convictions will always be relevant aggravating features and in the case of some, seriously aggravating features. Offences which result from negligence or worse should count as significantly more serious. Repeated operational failures – suggestive of a lack of appropriate management attention to environmental obligations – fall into this category. For example, to bring the message home to the directors and shareholders of organisations which have offended negligently once or more than once before, a substantial increase in the level of fines, sufficient to have a material impact on the finances of the company as a whole, will ordinarily be appropriate. This may therefore result in fines measured in millions of pounds. • Where the harm caused falls below Category 1 suitably proportionate penalties which have regard to the financial circumstances of the organisation should be imposed. In an appropriate case, a court may well consider, having regard to the financial circumstances of the organisation, that to achieve the objectives in s.143 of the Criminal Justice Act 2003 , the fine imposed must be measured in millions of pounds. • In the case of such an organisation, there must not be a mechanistic extrapolation from the levels of fine suggested at step 4 of the guideline for large companies. This is made clear by (1) the fact that by definition a very large commercial organisation's turnover very greatly exceeds the threshold for a large company, and (2) the requirement at step 6 of the guideline to examine the financial circumstances of the organisation in the round. • Even in the case of a large organisation with a hitherto impeccable record, the fine must be large enough to bring the appropriate message home to the directors and shareholders and to punish them. In the case of repeat offenders, the fine should be far higher and should rise to the level necessary to ensure that the directors and shareholders of the organisation take effective measures properly to reform themselves and ensure that they fulfil their environmental obligations. 29. The third ground of appeal as elaborated in the skeleton argument submitted for the purpose of the hearing is that the fine in this case was £1.75 million greater than the fine imposed in the Reading case. Leaving aside the fact that this proposition fails to take account of the principles set out in the judgment of this court in respect of that case, it ignores the view expressed by the court in the penultimate paragraph of the judgment: “In his written submissions Mr. Berlin suggested that the fine actually imposed by the Recorder was lenient. While we have every sympathy for the difficulty facing the Recorder, we agree that it was, even taking into account the significant mitigation afforded by Mr. Aylard's evidence. We would have had no hesitation in upholding a very substantially higher fine. This appeal is dismissed.” This court was not in a position to increase the fine imposed by the judge sitting in Reading. Had it been, it would have done so. In those circumstances the fact that the judge who imposed the sentence with which we are concerned saw similarities with the facts of the Reading case is of no account. The sentence imposed by the judge sitting in Reading can be of no persuasive effect. Conclusion 30. Applying the principles set out by this court in 2015, we are quite satisfied that, had the judge engaged in the step by step approach as required by the guideline, he would have reached the same conclusion as he did when apply a less structured approach. This was a breach of environmental regulations committed by a very large organisation as a result of corporate recklessness. The size of the organisation meant that the figures provided within the table applicable to a large company were of little relevance. The previous history of the organisation was little short of lamentable. To bring home to the directors and shareholders the need to protect the environment required a very substantial fine. In those circumstances a fine measured in millions of pounds was entirely proportionate. A fine after a trial of £3 million was appropriate. As we have indicated we consider that the credit given by the judge may have been generous. Certainly the resulting fine of £2 million was not manifestly excessive or wrong in principle. 31. We were invited by counsel for Thames Water in their written submissions to provide sentencing guidance for cases where the water company is a very large organisation. We took this to amount to an invitation to add a table to the guideline providing starting points and ranges. We would have rejected any such invitation. Had the Sentencing Council thought that such a table would have been appropriate, one would have been included in the guideline. It was not. It is not for this court to engage in ad hoc drafting of sentencing guidelines. 32. In oral submissions the invitation was refined. We were asked to note the difficulties facing very large organisations in assessing the likely level of a fine in any given case. In the light of those difficulties it was suggested that we could offer a view to the Sentencing Council, namely that an additional table should be added to the guideline to provide ranges of fines for the different categories of offence. We decline that more modest suggestion. The guidance sought by counsel is to be found in the decision of this court in 2015 as referred to above. In our view it provides more than satisfactory guidance on the approach to be taken by judges. We observe that it is a judgment to which the then Lord Chief Justice contributed. We cannot offer any improvement. The judgment does not set out sentencing ranges by reference to figures because very large organisations vary greatly in size and in the nature of their operation. For the same reason the Sentencing Council took an informed decision to provide only general guidance for sentences in relation to very large organisations. We are satisfied that there is no basis to amend that approach. 33. This appeal is dismissed. The respondent prosecutor is entitled to its costs which are agreed in the sum of £6,000.

2019_07_26-4682.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/1344/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/1344

4758f5707f06792a91bcb5e95ada19f2eeaf4c2f73836c098818ecc80312fa6a

[2008] EWCA Crim 994

EWCA_Crim_994

2008-04-25

supreme_court

Case No: 200704510 B2 Neutral Citation Number: [2008] EWCA Crim 994 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Royal Courts of Justice Strand, London, WC2A 2LL Date: 25 April 2008 Before : LORD JUSTICE HUGHES MR JUSTICE UNDERHILL SIR CHRISTOPHER HOLLAND - - - - - - - - - - - - - - - - - - - - - Between : CF Appellant - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International L

Case No: 200704510 B2 Neutral Citation Number: [2008] EWCA Crim 994 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Royal Courts of Justice Strand, London, WC2A 2LL Date: 25 April 2008 Before : LORD JUSTICE HUGHES MR JUSTICE UNDERHILL SIR CHRISTOPHER HOLLAND - - - - - - - - - - - - - - - - - - - - - Between : CF Appellant - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 190 Fleet Street, London EC4A 2AG Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr Jamie Hamilton (instructed by Pluck Andrews ) for the Appellant Miss Nicola Gatto (instructed by Crown Prosecution Service ) for the Crown Hearing dates: Thursday 16 th January 2008 - - - - - - - - - - - - - - - - - - - - - Judgment Mr. Justice Underhill: 1. On 27 July 2007 at the Crown Court at Manchester (Minshull Street) the Appellant, who was born on 18 November 1990 and was thus then aged 16, was convicted on five counts of rape of a male child under 13, contrary to s.5(1) of the Sexual Offences Act 2003 and two counts of inciting a child under 13 to engage in sexual activity contrary to s.8(1) of the Act . On 26 October 2007 he was sentenced to concurrent terms on each count of 30 months detention pursuant to s.91 of the Powers of the Criminal Courts (Sentencing) Act 2000 . His appeals against both conviction and sentence have been referred to us by the Registrar of Criminal Appeals. 2. We start by considering the appeal against conviction. It is convenient to say at this stage that we give leave to appeal and proceed to consider the substantive issues. It is necessary to start by setting out the procedural history, in particular as it relates to the framing of the indictment. 3. The Appellant was initially arraigned on 29 November 2006. The indictment as it then stood contained six counts – four of rape (two involving anal, and two oral, penetration) and two of incitement of a child to engage in sexual activity, namely asking the victim to lick his anus. In each of the cases the victim “(R”) was the same boy, the son of a woman with whom the Appellant’s father was in a relationship, and thus – loosely speaking – his step-brother. R was about six years younger than the Appellant. All six offences charged were under the 2003 Act . They were advanced as sample offences: the Crown’s case was that each form of the abuse (that is to say, anal rape, oral rape and making R lick his anus) had occurred on more numerous occasions than were specifically charged, beginning some time after the time when the Appellant’s father and R’s mother began their relationship, which was in August 2003, and ending when the relationship broke up at the end of 2005. In the case of each count, the particulars did not identify a date for the offence but merely specified a period. In the case of two of the offences the start-date pleaded for the period in question was 5 August 2004, and for the remaining four it was 5 August 2005. Why those precise dates were chosen is unclear but is immaterial for present purposes. 4. On 3 July 2007 the indictment was amended, on the application of the Crown (unopposed by the Appellant), (a) to add a further count of oral rape, occurring in a period with a start-date of 5 August 2003, and (b) - more materially for the purpose of this appeal - to change the start-date of the period identified in the particulars for each of the existing counts to correspond with that in the new count, i.e. to 5 August 2003. As amended, counts 1 and 2 alleged anal rape, counts 3-5 oral rape and counts 6-7 the offence under s.8(1) . 5. The trial commenced on 23 July 2007 before His Honour Judge Lakin. The case was opened to the jury, and in due course summed up by the Judge, on the basis that if they found that anal rape occurred once, they should convict on count 1 and if more than once on count 2; and likewise for the counts of oral rape and under s.8(1) (save that in the case of oral rape count 5 was appropriate if they found that it occurred more than twice). The Appellant was in due course convicted on all counts. He was remanded on bail for reports prior to sentence. 6. At some stage during the interval between conviction and sentence it was appreciated for the first time that the start-date of the period specified in the particulars under each of the counts on which the Appellant had been convicted preceded the coming into force of the 2003 Act , which occurred on 1 May 2004. The indictment as originally drafted was unobjectionable: the problem was caused by the amendments introduced on 3 July. On 25 October 2007 the Crown invited the Judge to amend the indictment so that the particulars referred to no date earlier than 1 May 2004. He refused that application on the basis that he had no power to permit amendment of the indictment following the verdict of the jury. It has been suggested to us that that was incorrect, in the light of the decision of this Court in R v JW (unreported, 21 April 1999); but that is not a submission on which we have found it necessary to reach a concluded view since, as will appear, the substantive issues which we have to consider in this appeal would arise whether or not the Judge had power to amend the indictment. 7. It is common ground before us that the indictment on which the Appellant was convicted is defective because the particulars as pleaded include a period of several months (specifically 5 August 2003 to 30 April 2004) during which the offence charged did not exist. It is also, however, common ground that it is not a nullity (as to this, see the observations of Lord Bridge in R v Ayres [1984] AC 447 , at pp 460 -1). The issue for us is simply whether the defect in question renders the Appellant’s convictions unsafe. 8. Mr Hamilton, for the Appellant, submits that a conviction is necessarily unsafe when the period specified in the indictment covers a period when the act alleged would not have constituted the offence charged. He relies on the decision of this Court in R v C [2005] EWCA Crim 3533 [2006] 1 Cr App Rep 28: although the precise situation falling for consideration in that case was different from that with which we are concerned here, the reasoning of the Court recognises that a defendant cannot be convicted of an offence under the 2003 Act unless the prosecution is able to prove that the act alleged occurred after 1 May 2004. 9. Miss Gatto for the Crown does not seek to challenge that proposition as a matter of principle. It is, however, her submission that it can be demonstrated that, if the jury – as it evidently did – accepted the evidence of the prosecution witnesses, it must necessarily have found that all of the behaviour charged, or in any event some behaviour of each of the kinds represented by the specimen counts, occurred on or after 1 May 2004. If that is right, she submits, the convictions are safe. Even if some acts of the kind charged may have occurred prior to that date, that is immaterial provided that other such acts occurred after it. 10. In our judgment if Miss Gatto’s premise is correct, her conclusion does indeed follow. But the crucial question is whether she can establish her premise. As to that, it is necessary to look carefully at what evidence was indeed before the jury as to the dates at which the alleged offences occurred. This is not entirely easy because, at the time that the evidence in question was given, those eliciting it (whether counsel or, in the case of the complainant, the officer conducting his initial taped interview) did not believe that the precise dates were of any particular significance, and no systematic attempt was made to establish a clear chronology. Likewise, the judge in the course of his summing up on more than one occasion told the jury that precise dates did not matter. Nevertheless, Miss Gatto submits that a clear picture does in fact emerge. There are two key markers to which she attaches particular importance. The first is that on 7 January 2005 R and his mother moved from the address at which they were living when her relationship with the Appellant’s father started – referred to in the evidence as “Greenwood Avenue” – to a new flat (“Inverness Road”). Any act which the evidence showed unequivocally had occurred after that move would necessarily have occurred after 1 May 2004. The second fixed point is the break-up of the relationship between the Appellant’s father and R’s mother, after which the Appellant and R ceased (save for a single immaterial occasion) to see one another: there was some uncertainty as to precisely when this occurred, and to what extent it was associated with her learning of the Appellant’s behaviour towards R, but it was common ground at the trial that it occurred around Christmas 2005. 11. With those fixed points in mind we turn to consider the particular parts of the evidence on which Miss Gatto relied. 12. The Video Interview. The taped video interview took place on 12 May 2006. Miss Gatto identified the following passages as being relevant to the question of the dates at which the abuse occurred: i) Quite early in the interview R explained that although the Appellant used to live at his “grandma’s” he used to come and sleep at “my house”. He was asked where his house was. He answered: “… [W]hen he started doing it, it was at Greenwood but then we moved to Inverness. And then before Christmas my Mum left Greg because she ended up finding out what happened to me. ” That is a reasonably clear statement that the abuse started when R was living at Greenwood Avenue; but it is no help on the question on whether it started before 1 May 2004. It is also a statement that it continued until “before Christmas” (sc. 2005), and there is perhaps an implication that the abuse continued after the move to Inverness Road; but as to this there is more explicit evidence which we consider below. ii) A little later R was asked when the Appellant started “to first come to your house”. He answered “it was about two years ago”. Two years back from 12 May 2006 gets us to 12 May 2004. Ms. Gatto invited us to take that as a terminus post quem for the start of the abuse. We do not believe that we can safely do so, both because the period specified cannot reasonably be regarded as anything but approximate and because R shortly afterwards gave a rather different date for the start of the abuse (see below). iii) The officer conducting the interview then asked R to describe “the very first thing that CF made you do”. She said that she wanted to be told “everything about that ... where you were, when it was and what happened before that … and what happened after it”. R proceeded to give a detailed and circumstantial account of being subjected to an anal rape in the bathroom at the Appellant’s grandmother’s house, where they were both staying the night; and, the following morning, of being forced to fellate the Appellant. He gave no date, but he said: “After that I went back to my house the day after and, erm, I didn’t tell my Mum anything but when, erm, that was going on for at least two years time and then I ended up telling my Mum … what had happened so that’s when she left my thingy, and he also told me to do summat really disgusting and lick his bum in the middle but I didn’t do that at first, but when he threatened to hit me so I done it. But then, erm, when I felt like not doing it anymore and when I felt, and when I started getting dead sad and all that, my Mum started thinking CF had done summat to me and he said “if you tell your Mum what I’ve done with you then I’ll batter you” so I didn’t tell her at first but then when I started getting sick of it I ended up just, erm, just telling my Mum and he left… so my Mum said “you’re never gonna… have to see him ever again.” It seems reasonably clear from that passage that what R is saying is that there was a period of “at least” two years from the original incident (that is, the anal and oral rapes at the Appellant’s grandmother’s house) to when he finally told his mother what had been happening, and that it was that which led to the relationship with the Appellant’s father coming to an end. Since (see above) the relationship came to an end around December 2005, that would put the date of the original incident about the end of 2003. He is also clearly saying that abuse of a similar kind continued over the whole two-year period; but he does not in this passage (or – to anticipate – subsequently) give any details. A little later, the officer reverted to the first incident and asked R how long ago it was. He answered “nearly two years ago”. That answer agrees with the passage which we have set out at (2) in putting the incident in, or rather after, May 2004; but the (perfectly natural) imprecision of the answer, coupled with the discrepancy with the earlier answer implying (about) December 2003, means that it cannot be treated as definitive. iv) After the details of that incident had been fully explored, there occurred the following exchange: Q. So we talked about that one time, has there been any other times that he has done anything? A. Well, he has done it loads of times. He’s done it nearly every day. Q. Nearly every day? A. Nearly, er, every time he’s saw me he’s done it to me. Q. And what’s he done? What sort of things has he done to you every time he’s seen you? A. Well, well really all the things I’ve said and them are the only things he made me do. Every week he told me, like, to suck his willy, and, erm, bend over and, erm, lick his bum. Q. Right. So you know if we, if we, concentrate on him, putting his willy in your bum, how many times has he done that? A. About four times. Q. About four times. And I know what you’ve told me he done it his Grandma’s, has he done it anywhere else? A. At my house, and them are the two places he’s done it at. Q. Whereabouts in your house? A . In my room. There follows an exchange clarifying that, but which does not identify whether the room in question was at Greenwood Avenue or Inverness Road. The officer continued: Q. Okay. When you say he’s made you … suck his willy, how many times has he made you do that? A. About nearly ten. Q. About nearly ten times? A. About nine times. He’s done it load of times that. Q. Okay and what about him making you lick his bum? A. He’s only done that about three times. Q. Okay. So about four times he’s put his willy in your bum; about nine or ten times he has made you suck his willy, and about three times he’s made you, erm, lick his bum. Is that right? A. Yeah. Whether or not those precise enumerations of the times that each form of abuse occurred are really reliable, they are the most specific statement by R, and the jury cannot have safely found that the number of occasions was any greater. They are, of course, not even approximately dated. v) Finally, R gave an account of how finally he came to tell his mother of what the Appellant had been doing. The exchange went as follows: “Q. What prompted you to tell your Mum when you did do? A. Well, erm, it, cos it were before Christmas and I wanted a nice Christmas without CF asking me to do anything, I told my Mum cos I were getting tired of it, always doing what he says and that so that’s what made me tell my Mum. Q. Right, okay. And when was the last time he did anything to you? A. Erm, just before Christmas, since, like, November or summat. Q. Of last year? Yeah? A. Yeah? Q. Okay. A. Before that Christmas, before the Christmas that what went. That is a plain statement that some abuse had occurred shortly before Christmas 2005; but no details are given of what form of abuse. 13. Cross-examination. Miss Gatto referred to the following passages from the cross-examination of R: i) Early in his cross-examination R was asked how long after his mother and the Appellant’s father started going out together he had moved to Inverness Road. He said that it was about a year. The cross-examination proceeded on the basis that during that year – i.e., broadly, over the course of 2004 - the Appellant had not often stayed with R; but this seems to have been inconclusive. ii) R was cross-examined about the first incident which he had described in his video interview. Although he confirmed that the incident itself had happened at the Appellant’s grandmother’s house, he was asked whether it had occurred at a time when he was living in Greenwood Avenue or Inverness Road. He initially answered “Inverness Road”, but at once corrected himself to “Greenwood” and appears to have confirmed this by agreeing that it occurred “in the first part of your Mum’s relationship with his Dad”. That confirms, therefore, that the abuse started before January 2005, but it gives no assistance as to how long before. iii) R was asked about the enumeration of the various incidents which he had given in his video interview (see para. 12 (iv) above). Not surprisingly, he retreated somewhat from the precision of those answers, saying “I couldn’t remember really”. Counsel went on to ask him about where the abuse occurred. The Appellant said: “He didn’t do it in my room at my house as much as in his room really. In his house (in his grandma’s house) nobody hardly comes in his room or anything, so he felt he could do it in his room; but he did it, I think it was about four times that he did do it actually at my house. ” This appears to be a statement that most of the abuse occurred at the Appellant’s grandmother’s house. The significance of that is that there are no relevant date-markers: so far as the evidence goes, the grandmother lived at that house, and the boys went there, throughout the period of the relationship between their parents. iv) After some discussion of the incident in the bathroom at the Appellant’s grandmother’s house R was asked “so what happened in your bedroom?” He answered: “He told me to suck his willy in my room and that all he’s ever told me to do in my room.” He then confirmed, in answer to a question from counsel, that “my room” as there referred to meant his room in Inverness Road. This, therefore, is an explicit statement – for the first time in the evidence – that at least one form of abuse, i.e. oral rape, took place at Inverness Road and, therefore, necessarily after January 2005. In further answers he repeated that it was only occasionally that the Appellant stayed at “my house” – once said to be “a couple of times”, elsewhere “four times”. 14. Re-examination . In re-examination Miss Gatto attempted to clarify where the abuse occurred, but she did not seek to be specific about what abuse or about precise dates. R told her that “it went on” at Greenwood Avenue, once or twice … well, probably, actually about three or four times, I’m not sure”. He said that the Appellant only slept on one occasion at Inverness Road. There was then this exchange: “Q. When he did these things at Inverness, you talked about it being in your room. Was he sleeping or visiting? A. Sometimes it was sleeping, and sometimes it were visiting.” This is confirmation that abuse occurred more than once at Inverness Road: the character of the abuse is unspecified, but given R’s answer in cross-examination (see para. 13 (iv) above) it must have been oral rape. 15. Our attention was drawn to no other evidence before the jury bearing directly on the dates at which the acts of which are complained occurred. 16. Where does that evidence leave us? The starting point is that it is not possible to say with any confidence that the jury must – if, as it did, it accepted the truthfulness of R’s account – have found that the initial incident, in which he was subjected to both anal and oral rape at the Appellant’s grandmother’s house, took place or on after 1 May 2004: the evidence in our view clearly admits of the possibility that it took place at some point in the period between December 2003 and the end of April 2004. It follows that we cannot say that any conviction based on the acts alleged in that incident constituting offences under the 2003 Act was safe. However, that incident was, on R’s evidence, only the start of a long course of sexual abuse continuing until shortly before Christmas 2005. The jury must, given that it convicted the appellant on all counts, unquestionably have accepted that evidence; and it necessarily follows that, even if the initial acts occurred prior to 1 May 2004, several acts of abuse (indeed almost certainly the majority) occurred in the period of eighteen months or so between that date and the end of 2005. The problem is that the counts on which the Appellant was convicted specify particular acts of abuse, and it is not open to us to hold that any particular conviction is safe unless conduct of that particular kind can be unequivocally attributed to the period after 1 May 2004. On that basis we do not see how either the convictions for anal rape or for the offence under s.8(1) can be sustained. Although R says that he was anally raped on four occasions, it is impossible safely to exclude the possibility that all of those occasions may have occurred in the first few months of the abuse and before 1 May 2004: no doubt that is not very probable, but probability is not enough. Likewise with the three occasions on which R was compelled to lick the Appellant’s anus. However, the position as to the counts of oral rape seems to us to be different. R did give unequivocal evidence that he was orally raped at Inverness Road, and on more than one occasion: see paras. 13 (iv) and 14 above. That must, necessarily, have occurred after 1 May 2004. We can see no rational basis on which the jury, having accepted R’s evidence generally, could have been less than sure on this aspect. It follows that the Appellant’s conviction on counts 4 and 5 is in our view safe. 17. Accordingly we allow the appeal to the extent of quashing the Appellant’s conviction on all counts save counts 3 and 4. On the occasion of the hand-down of this judgment we will hear submissions on all consequential matters.

2008_04_25-1479.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/994/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/994

b10efc9a6d26cfc98ad757ce24cbf090fd0a3a888e23647b9bc3bf5dfaf4f412

[2018] EWCA Crim 1500

EWCA_Crim_1500

2018-05-09

crown_court

2016/02184/B2 & 2016/02307/B2 Neutral Citation Number: [2018] EWCA Crim 1500 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Wednesday 9 th May 2018 B e f o r e: LORD JUSTICE TREACY MR JUSTICE EDIS and HER HONOUR JUDGE MUNRO QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - - - - - - - - - - - R E G I N A - v - RONNIE MELIUS - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave Internation

2016/02184/B2 & 2016/02307/B2 Neutral Citation Number: [2018] EWCA Crim 1500 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Wednesday 9 th May 2018 B e f o r e: LORD JUSTICE TREACY MR JUSTICE EDIS and HER HONOUR JUDGE MUNRO QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - - - - - - - - - - - R E G I N A - v - RONNIE MELIUS - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd trading as Epiq 165 Fleet Street, London EC4A 2DY Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - Non-Counsel Application - - - - - - - - - - - - - - - - - J U D G M E N T Wednesday 9th May 2018 LORD JUSTICE TREACY: I shall ask Mr Justice Edis to give the judgment of the court. MR JUSTICE EDIS: 1. The applicant, Ronnie Meliuis, seeks leave to appeal out of time against a confiscation order which was made by consent. The interested party, Elaine Byfield, seeks an extension of time in which to seek leave to appeal against the same confiscation order. Her right of appeal is conferred by section 31(5)(b), (6) and (7) of the Proceeds of Crime Act 2002. She claims an interest in the matrimonial home, which was the only realisable asset identified in the confiscation proceedings and which will have to be sold if the order is to be paid. She was an interested party in the Crown Court, having been joined into the confiscation proceedings pursuant to section 10A of the 2002 Act. 2. The applicant was sentenced to 24 years' imprisonment on 7 th December 2012, having been convicted of a series of serious offences of importation of a variety of different controlled drugs, including Class A controlled drugs. 3. On 13 th January 2016, in proceedings under section 6 of the Proceeds of Crime Act 2002 he was made subject to a confiscation order by agreement in the sum of £95,467, payable within three months, with two years' imprisonment in default of payment. 4. The written grounds of appeal, which the applicant has placed before the court, contend that there was no postponement of the confiscation determination during the permitted period and that the determination itself was made after the expiration of two years following the conviction. He further contends that his counsel knew that the confiscation order was out of time, but still allowed the hearing to go ahead and the order to be made. He had complained to the Bar Standards Board about counsel. He also made other complaints about his legal representation. Essentially, he alleged that he was lied to by his counsel. All of that is designed to explain how it came to be that he consented to the order which, he says, should now be set aside. 5. In short, leaving the question of consent to one side, the substance of the applicant's proposed appeal is that the order was procedurally defective. He contends that he ought to be allowed to appeal, notwithstanding his consent, because of his complaints about his legal representation. 6. The Crown have served documents which contest the procedural grounds on which the application is brought. They say that there were valid postponements, pursuant to section 14 of the Proceeds of Crime Act 2002, within time and that the second of those postponements lasted until 16 th May 2016 – some months after the confiscation order was made. In any event, say the Crown, in view of section 14(11), as it now appears in the 2002 Act and the decision of the House of Lords in R v Soneji [2005] UKHL 49 , none of the procedural points relied upon by the applicant could conceivably result in the quashing of the confiscation order. R. v Guraj (Lodvik) [2016] UKSC 65 renders the position clear under the modern law. Discussion and Decision 7. It sufficiently deals with the matter, in our judgment, to record three things: (1) The single judge gave lengthy and detailed reasons which explain in clear language why this application is totally without merit. It is unnecessary to set them out here because the applicant and his wife have both seen them. His wife secured the adjournment of this application when it was first listed because she had only recently received the Court of Appeal Summary, but in the event did not appear before us. (2) The applicant and his wife both consented to the making of the order. The law in relation to the relevance of consent to an appeal against a confiscation order is firmly established in the decision of this court in R v Hirani [2008] EWCA Crim 1463 and other authorities recently analysed and explained in R v Morfitt [2017] EWCA Crim 669 . In this case there was no mistake of law by the court which went to its jurisdiction and the whole proceedings were not arguably rendered unfair by any misapprehension under which the applicant may have laboured when he consented. He signed a note which confirmed his consent and confirmed also that he had been advised that a finding of hidden assets was likely if the proceedings were contested. The prosecution was willing to limit the order to a 50 per cent share in the matrimonial home and the bargain, therefore, relieved the applicant of the likelihood of having to serve a substantial default term if he did not, in fact, have any assets with which to meet a much larger order. (3) The tortured thought process of the applicant is well illustrated by his seeking to rely on the judge's apparent reluctance to make the confiscation order he was invited to make by all parties. He suggests that this means that the judge knew that no confiscation order should have been made. That suggestion is not true. The transcript shows that the judge was reluctant to make a confiscation order on the basis which had been agreed because he thought it was far too generous to the applicant and he was concerned that such generosity might invalidate or undermine the basis on which he had passed sentence. 8. In our judgment, this application is totally without merit for the reasons given by the single judge and, accordingly, we refuse both applications for extensions of time and, even if we had permitted the application to be argued despite the passage of time, it would have been refused on the merits. 9. This is the second occasion when the applicant has advanced before this court entirely hopeless grounds of appeal arising out of this case. On 2 nd March 2017, in a decision with the neutral citation number [2017] EWCA Crim 225 , this court refused his renewed application for leave to appeal against his conviction and made a loss of time order of 60 days. We consider that a loss of time order is appropriate in this case also, but we consider that the period of time which the applicant should serve as a result of that loss of time order should take into account the principle of totality. Justice will be done if we order that 30 days of the time spent pending the hearing of this application should not count against his sentence. That 30 day period shall run consecutively to the 60 day period imposed by this court in March 2017, making a total loss of time in all of 90 days.

2018_05_09-4298.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/1500/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/1500

3db4987eec8b0789e08cc36759a588e1e2dda963d3709cf49272ac3b41c1ed78

[2022] EWCA Crim 926

EWCA_Crim_926

2022-07-07

crown_court

Neutral Citation Number: [2022] EWCA Crim 926 Case No: 202100699 B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT HARROW HIS HONOUR JUDGE COLE T20197436 Royal Courts of Justice Strand, London, WC2A 2LL Date: 7 July 2022 Before: LORD JUSTICE STUART-SMITH MR JUSTICE JEREMY BAKER and HIS HONOUR JUDGE ANDREW LEES - - - - - - - - - - - - - - - - - - - - - Between: REGINA Respondent - and – MANOJ BHATT Appellant - - - - - - - - - - - - - - - - - - - - - REPORTING RESTRIC

Neutral Citation Number: [2022] EWCA Crim 926 Case No: 202100699 B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT HARROW HIS HONOUR JUDGE COLE T20197436 Royal Courts of Justice Strand, London, WC2A 2LL Date: 7 July 2022 Before: LORD JUSTICE STUART-SMITH MR JUSTICE JEREMY BAKER and HIS HONOUR JUDGE ANDREW LEES - - - - - - - - - - - - - - - - - - - - - Between: REGINA Respondent - and – MANOJ BHATT Appellant - - - - - - - - - - - - - - - - - - - - - REPORTING RESTRICTIONS APPLY: SEXUAL OFFENCES (AMENDMENT) ACT 1992 - - - - - - - - - - - - - - - - - - - - - James Scobie QC for the Appellant Gareth Munday for the Crown Hearing date: 9 June 2022 - - - - - - - - - - - - - - - - - - - - - Remote hand down: This judgment was handed down remotely at 10.30am on 7 July 2022 by circulation to the parties or their representatives by email and by release to the National Archives. Approved Judgment Stuart-Smith LJ: 1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to the offences that are the subject of this appeal. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with s.3 of the Act. Introduction 2. After a trial in the Crown Court at Harrow lasting 10 days the Appellant was convicted on 12 February 2021 of 12 serious sexual offences including 3 counts of attempted rape and one count of rape. The seriousness of the offending was marked in due course by sentences that in total amounted to a special custodial sentence of 19 years comprising a custodial term of 18 years and an extended licence period of one year. 3. At trial and before us the prosecution was represented by Mr Munday. At trial the Appellant was represented by Mr Burton; before us he has been represented by Mr Scobie QC. 4. He now appeals against his conviction with the leave of the Full Court (Stuart-Smith LJ, Hilliard J and the Recorder of Manchester) on two grounds which we will set out in detail below. In briefest outline the Appellant submits that the Judge unfairly undermined the Defence by his imposition and enforcement of an arbitrary time limit on cross-examination (Ground 1); and that passages in the written directions to the jury and summing up under the headings “Avoiding myths and stereotypes” and “Children and Young people” were unfairly unbalanced adversely to the Appellant’s case (Ground 2). 5. Because of the nature of the submissions in support of the appeal, it is not necessary to outline the allegations that underpinned the convictions in detail. It will, however, be necessary to refer extensively to passages from the transcript of the trial and the summing up because they are the basis of the appeal. We therefore set out much more of the transcript than would be usual so that a complete picture of the relevant material may be seen. The Factual Background 6. About the underlying facts it is sufficient to say that the complainant, who we shall call D, had an older sister who we shall call SB. The Appellant was for a long time in a relationship with SB and had two children with her. Between 2001 and 2005 it was the prosecution case that the Appellant groomed, abused, assaulted and ultimately raped D who was then aged between 10 and 15 years. D said that she had reported the abuse, at least in general terms but not in full detail, to a number of people including her mother and her sister SB but that she had not been believed by her family. She said that she had been reluctant to go to the authorities and that at least one of the reasons for her reluctance was the Appellant’s relationship with her sister, SB. Much of the abuse was said to have occurred in the Appellant’s shop between the end of D’s school-day and when the shop would be closed by the Appellant some two hours later. The case finally came to the attention of the police in 2018. D had recently made disclosure to social services in the context of an application for a guardianship order in relation to her brother’s children. After the disclosure to the social services there was a family meeting. It was the prosecution case that at that meeting D’s partner had confronted the appellant who had admitted the abuse and apologised to D. The Trial 7. As the length of the trial indicates, a number of witnesses were called in addition to D and the Appellant. In particular, SB was called by the Defence and did not support D’s account. Specifically, she denied that D had made disclosure to her before 2018. D’s version of events was supported by evidence that she had made disclosure to others including work colleagues, a social worker, D’s counsellor and the ex-wife of D’s brother. The Defence case was that the offences never happened and could not have happened in the way alleged, for various reasons which are not material to this appeal. 8. All of the additional evidence went to the central issue in the case: was the jury sure that D was telling the truth? As the Judge put it in summing up, the fine detail of the nature of the offences did not matter: “It is very stark. If you are sure [D] is telling the truth, that is the overarching issue. The defence say she is telling a pack of lies.” 9. Counsel for the Appellant started his cross-examination of D in the afternoon of Day 2, 2 February 2021, and continued for 48 minutes. Shortly before he started, D had become upset on being shown by Prosecution Counsel a photograph of the room in the shop where the abuse was said to have occurred. The Judge told D she was now to be cross-examined and said that she should let him know if she needed a break. He then continued by saying: “… but on the other hand, I know you are going to want to finish as soon as you can. I will be governed by you, and feel free to sit down whenever you want as well.” 10. A little later, the Judge made a further enquiry of D about her availability should her evidence go into the next day, as follows: “JUDGE: … Can I just ask you if we needed to break off your evidence this afternoon, I just want to gauge from you how much inconvenience that would cause, are you able to come back in the morning if we need to break off this afternoon. A: Yes. JUDGE: You are. Obviously, I know you do not want to, but I am trying to see what our options are. A. Yes. JUDGE: All right, thank you. Yes, Mr Burton. The witness has said, I do not know if you have heard, while you were looking at the note that she is able to come back in the morning. COUNSEL. I did hear that, thank you very much, yes, Your Honour. JUDGE: I am not suggesting we break as of now. COUNSEL: No, I understand, Your Honour. [To the witness] We had hoped to conclude your evidence this afternoon but the fact that there has been so many delays, no one’s fault, …”. 11. Towards the end of the afternoon’s session, Counsel for the Appellant started asking D about her relationship with a man who she had married but who had stayed in India and to whom D would send money. After a while, the Judge intervened as follows: “JUDGE: Now, Mr Burton, I have been listening to a few questions about this to see how it developed, I am struggling to see the relevance of that marriage to this indictment that is before the jury. COUNSEL: It led, did that marriage and the circumstances [of] that relationship, did that lead to you seeking counselling?”. The witness then answered the question and the cross-examination continued. 12. Shortly after that intervention, Counsel for the appellant was looking for some documents and the following exchange occurred: “JUDGE: While you are tracking them down, can I just get a feel for, I am trying to see whether to keep you in the witness box a bit longer in the hope of finishing your evidence, as opposed to adjourning for the morning. How much longer do you think you have got roughly? COUNSEL: I am going to ask for a short break anyway because there’s a matter I wanted to deal with with my client in respect of the photographs produced in evidence in court anyway before I can finish. JUDGE: Right, I think – COUNSEL: I was going to ask for a break, in any event. JUDGE: I think in any view, D, giving evidence is quite an intense process, and if you do not mind, I am going to break off now with the jury and you, and ask you to return fresh tomorrow at 10am. A: Yes. JUDGE: Is that all right? A: That’s fine. JUDGE: I think we will do it that way rather than getting a break now and having the witness come back. COUNSEL: I will need more than just a few minutes. JUDGE: Okay. COUNSEL: Hopefully, as usual, if I can see this is the benefit of a short break will [inaudible]. JUDGE: All right, well, I do not imagine you will be very much longer tomorrow morning, but I am going to break off now.”. After discussing other administrative matters, the Judge returned to the question of timing: “JUDGE: … I am not going to put too much pressure about timing. It is impossible to be very precise, but roughly how much more cross-examination do you think you have? COUNSEL: How long have I been so far? JUDGE: You have been about an hour and a half. COUNSEL: I do have at least half an hour. JUDGE: All right, I will expect you to come to a conclusion within say 45-minutes tomorrow morning. COUNSEL: That helps me.”. We note in passing that the Judge’s estimation was incorrect and that Defence Counsel had in fact only been cross-examining for 48 minutes by this point. 13. The following morning, on receiving a note from the Jury, the judge gave directions on how it would be answered. There was then a brief exchange about timing with Defence Counsel: “JUDGE: …Right, but in the meantime we are going to continue with your questioning, Mr Burton. You have said you will be 30, 40 minutes, something like that – COUNSEL: I will certainly be at least that, that period of time. I am going to try to keep it short – JUDGE: Well, I would like it to finish within 40 minutes.”. The cross examination then continued, largely without intervention. At one point the Judge pointed out that Defence Counsel was repeating matters that had been covered the day before. After clarifying her previous answer with D, the judge said that he “would like [Defence Counsel] to move to fresh ground rather than to recycle.” When Counsel demurred, the Judge repeated that he had asked the question the previous day and said “Let us move on to new questioning.” We are not able to detect anything exceptional about this exchange at all. Specifically, there is no hint of animus or conflict between Judge and Counsel; it is an entirely routine occasion of a Judge asking counsel to move on. 14. After a while, D became distressed on it being suggested to her by counsel that she had made it all up. The Judge intervened: “JUDGE: Just pause for a moment. Can I just explain to you, D? It is not what Mr Burton believes. It is not personal. He is putting the instructions of his client, the defendant, and it will be for the jury to decide. All right. Just take a moment. Would you like to – A: Sorry. JUDGE: No, do not apologise. Would you like to take a short break? A: Yes please. JUDGE: All right. We will take a short break. Thank you ladies and gentlemen. Fifteen-minute break.”. Immediately after the court had risen and, it appears, in the absence of the Jury, the Judge spoke to Defence Counsel again: “JUDGE: … This is exactly why I have sought to keep to a shorter timeframe for cross-examination. So, I am now going to impose a time limit to protect the defendant because it can be seen as diminishing returns if a witness becomes increasingly distressed, and to protect the witness. If and when the witness is able to resume because I was told that behind the scenes yesterday there was considerable distress, perhaps not portrayed in court, and if and when the witness is fit to resume, Mr Burton, you will have 20 minutes. So, take your best points, okay? You have got 15 minutes now to further whittle and I will tell the jury when we resume, that I have imposed a time limit of 20 minutes. COUNSEL: Yes, Your Honour.”. When the Court resumed about 15 minutes later, the Judge returned to the question of time limits and the following exchange took place: “JUDGE: Right, so Mr Burton, I am going to impose a time limit. Now, it maybe that 20 minutes is too short. What would you suggest? COUNSEL: Your Honour, could I ask for 40 minutes, [which I think?] [inaudible] 35 minutes. I think I’ve been on [my feet?] for about 15 minutes but I appreciate your [inaudible] said 45 minutes outside, but because – JUDGE: Right, I think that is at the very outside, but I am going to say a time limit, and it will be imposed. I have not got a bell, but it will be imposed. I am going to say 35 minutes. COUNSEL: Thank you. JUDGE: I will tell the jury that I have imposed it, so if they think it is wrong, they can blame me. All right, and I will tell the witness too …”. 15. When D came back into court the Judge told her what had happened: “JUDGE: … Now, just so you know, just before we bring the jury back, let us just wait for the defendant. Just so you know, I have imposed a final cut-off period of 35 minutes from now. A: Okay. JUDGE: So, that is the maximum that you will be in the witness box. A: Okay. JUDGE. All right I am going to try and finish your evidence in this final session. A: Okay, thank you. JUDGE: Okay, thank you very much …”. Before the Jury returned, Defence Counsel asked for further clarification and the following exchange took place: “COUNSEL: … Just before the jury comes in, just so that we’re clear, I mean, I am conversant with Your Honour’s concerns, could we just shut the door for a moment? Conversant of Your Honour’s concerns as to length. There are obviously key parts or some parts of the witness’ evidence that are challenged. Specifically matters raised, for example, something was raised by the witness yesterday when she was shown a photograph of the cellar, which I am not going to come back to this. I know it’s understood that – JUDGE: Well, look, we are wasting time now. You have got until 12 o’clock. If you will be saying to me ‘Well, I did not formally challenge that because of the time limit’, I will hear the submissions on that later on. COUNSEL: Yes. JUDGE: You have until 12 o’clock. Thank you very much. Jury please.”. And when the jury returned he told them of his decision: “JUDGE: Right, thank you ladies and gentlemen. Just so you know, I have imposed a time limit for all further questionings which must finish by 12 of this witness. So, if you think that is too short, do not blame it on Mr Burton, blame me. I have imposed that as a time limit on him. So, 12 o’clock. Right, Mr Burton?”. 16. Cross examination proceeded appropriately and concisely with Defence Counsel putting relevant points to the witness. After some minutes, there was a short exchange between counsel and the judge where Counsel asked if the judge had said 12 o’clock and the Judge replied “Yes I did. You have got six, seven minutes.” 17. Just as Defence Counsel was coming to the family meeting the following exchange occurred, which is a passage that forms the centre-piece for the Appellant’s submissions to us. Defence Counsel had established who was present at the meeting when the Judge intervened as follows: “JUDGE: Pause. Twelve o’clock, so this is your last question. COUNSEL: Well, this is really, very important to get – JUDGE: Yes, well, I gave you notice. Twelve o’clock, this is your last question. Do you want to ask another question or not? COUNSEL: With respect, Your Honour, I’d rather not – JUDGE: Okay, thank you very much. COUNSEL: I’d rather not be harangued in that way. JUDGE: I’m not haranguing, I’m setting a time limit. Ask your last question or sit down.”. 18. Defence Counsel then attempted to roll everything up into one question. Since it is central to the Appellant’s case on appeal, we record what was said after the judge had said “Ask your last question or sit down.”: “COUNSEL: By the stage that meeting took place, it was made plain by yourself that unless Mr Bhatt said sorry for what had happened – A: I didn’t suggest him to say to sorry. My sister did. COUNSEL: You would report – I hadn’t finished my question – you would report the matter to Social Services, you would disclose to the family the fact that the relationship between Mr Bhatt and your sister, and that in the circumstances of being shouted at by both yourself and J, Mr Bhatt was persuaded to kneel down to your feet and apologise for any offence he may have caused, but at no stage made any admission to what was being alleged by yourself and J. Do you understand the question? A: I understand the question but that’s not what happened. What happened was the fact, they – my sister was constantly calling me at work. They then phoned J, who is J, my partner, and they said that they – we needed to meet up, we needed to find out what was going on and what the solution to this would be. They, in fact, came to find a solution and see if I could lie, if it – and say, actually it wasn’t about Manoj, it was about some past boyfriend of my sister’s and J said ‘No, she’s not going to lie, but did you do this’? and he asked the question. I don’t remember the exact words but he asked the question and he accepted it and then my sister said, ‘Just apologise to her and my mum’, and that’s when he folded his hands and he went like this and said ‘Sorry’ and then he put his hand on my head and said ‘I’m like a father to you’. Father’s don’t do things like that. COUNSEL: I can’t ask any further questions? JUDGE: No, you cannot. COUNSEL: I can’t [inaudible]. JUDGE: Thank you very much. Right, is there any re-examination, Mr Munday?”. 19. A very brief re-examination then followed and D’s evidence finished at 12.04 pm. Cross examination had lasted 1 hour and 28 minutes: 48 minutes the previous afternoon and 40 minutes that morning. 20. Later that day there was a brief exchange when Defence Counsel took the point that Prosecution Counsel was leading a witness. There was a lack of clarity about whether the matters that were being led were in dispute. The judge resolved the objection by saying: “JUDGE: Right, if it might be in dispute, I will ask the witness myself. Sit down, Mr Burton. Thank you. You are meeting D, when you met her, you have told us that you got on well with her. Did you feel that you had anything in common with her or not? A: Not in the beginning JUDGE: Not in the beginning? A: Not in the beginning, no.”. The judge continued to ask questions in similar non-leading vein for a short while and then handed conduct back to Prosecution Counsel. 21. The family meeting was the subject of evidence from three other witnesses. D’s partner gave evidence on behalf of the prosecution, including evidence of a clear admission by the Appellant, his attempting to touch D’s feet as a gesture asking for forgiveness or a blessing, D’s reaction and SB’s suggestion that they should say it was a former boyfriend and not the Appellant who had abused her. He was cross-examined by Defence Counsel who put the Appellant’s case in detail. Specifically, Defence Counsel challenged the suggestion that the Appellant had admitted committing the sexual abuse and suggested that his gesture in attempting to touch D’s feet was in accordance with a custom whereby, if offence or upset has been caused, the older person will make the gesture whether or not they are at fault. He also put that there was a parallel conversation or discussions in Gujarati involving SB and D’s mother. The witness said that he could remember no such discussions and that the mother had said nothing. There were no material interventions from the Judge other than to clarify briefly and courteously. No complaint is made of those interventions: nor could there be any. In a very brief re-examination, the witness said that he had not made up his evidence in order to support D. 22. SB was called by the Defence. She contradicted the prosecution account of the family meeting, maintaining that D’s partner had been verbally aggressive trying to force the Appellant to admit the abuse by threatening that SB’s children would be taken by Social Services but that the Appellant “told him very nicely that, “I haven’t done anything like this so stop accusing me.”” SB’s evidence was that D said she did not want to take matters any further and that their mother had then said that they should end it immediately and that the Appellant should apologise, with the result that both SB and the Appellant apologised as they had been told to do so by the elder of the family. She said that the Appellant had touched D’s head and said “You are like my daughter” but that, so far as she was concerned, he was not admitting what he had been accused of doing. 23. It is apparent from the transcript that SB, who was giving evidence by video-link from India, was affected by a covid curfew, which added an extra time-consideration. This led the Judge to repeat the need to make progress so that she could be released in good time to comply with the curfew. At one point Prosecution Counsel questioned the relevance of a particular line of questioning, which led to the following exchange, upon which Mr Scobie relies as showing a degree of conflict between Defence Counsel and the Judge: JUDGE: Pause. Pause. Now, Mr Burton, time is extremely precious, but you must ask everything that you need to. You have already established with the witness herself, D, her problems with fertility and this sounds like an incredibly long answer. Do we really need to go through this? COUNSEL: I can’t control the length of the answers. JUDGE: Right, well why do we not move on to, for example- COUNSEL: I would like to know- JUDGE: No, do not interrupt me. Why do we not, for example, move on to the complaint through Social Services, because that is quite a big topic, is it not? COUNSEL: Well, I do think the answer that’s just being given- if that could be dealt with that quickly, the answer that’s just been given should be translated. JUDGE: Well, let us see. I will be the arbiter of relevance, … . 24. During cross-examination by Prosecution Counsel, the Judge adverted to the need to keep making progress and, a little later, said to Prosecution Counsel: JUDGE: … As I did with Mr Burton, I am going to impose a time limit. I give you fair warning. You have got about half an hour: 3.30. And, a little later, he gave Prosecution Counsel “another 15 minute warning.” There was then a short break. When the jury came back, Prosecution Counsel turned to the family meeting and put the prosecution case, which the witness denied in terms consistent with her evidence in chief. Her evidence was that the Appellant’s behaviour had been clear and that D and her partner must have realised that he was not admitting anything. Rather, he was merely trying to protect his children from being taken away. 25. As Prosecution Counsel appeared to be moving on from the meeting, the Judge intervened as follows: “JUDGE: Okay Mr Munday, have you finished with the meeting because I have not heard you put the Crown’s case on it yet about evidence we have heard, and you have to put it to the witness if you are relying on it? Anything said by this witness in the meeting.”. 26. Prosecution Counsel then put to SB that she had said to D that D should say it was someone else who had abused her, not the Appellant, which she denied. Defence Counsel’s short re-examination did not touch on what happened at the meeting. After the conclusion of SB’s evidence, the Judge took Prosecution Counsel to task for not having put all aspects of the Crown’s case to the witness. The Appellant submits that this exchange demonstrates, if demonstration were needed, both the importance of a party putting their case and the Judge’s appreciation of that importance. 27. The Appellant gave evidence on his own behalf the following day. Defence Counsel was given a 15-minute break in the middle of examination in chief to gather his thoughts about how to conclude the evidence. During that break the Judge said: “In my mind’s eye, and I was probably being unrealistic, we would have finished this evidence this afternoon, but it sounds like we are just going to finish examination-in-chief and have cross-examination tomorrow.”. Both counsel agreed that this was a realistic assessment. 28. When it came to the family meeting, Defence Counsel took the Appellant through his evidence carefully and thoroughly. The Appellant’s evidence was similar to that of SB. He said that D’s partner had shouted at him (in English) telling him to admit it and that he had responded that he would not admit something he had not done. Then, he said, D and her partner threatened him that Social Services would take his children away. The transcript records him as saying that his (i.e. the Appellant’s) mother had intervened, though this appears to be a slip and the reference should be to SB’s mother. On his account she said “For any reason if you’ve been offended for anything else and you’re accusing him, do not talk about taking the kids away and putting them in Social Services, and for that they will apologise to you.” On his account he then bowed down at D’s feet and said “Please don’t do this and spare my children. Don’t take them. Don’t make Social Services take them away.” 29. At this point the Judge intervened briefly to ensure that he had got his note right “because this is potentially important.” When the Appellant went on, he said that he had put his hand on D’s head, blessing her and saying that “You are like my daughter. If I said anything which has offended you, then forgive us.” His evidence in chief about the meeting concluded with him again denying that he had abused D. There had been no impediment to Defence Counsel adducing the evidence he wanted to lead before the jury. During the course of the rest of his evidence, there were a number of interventions from the Judge but none of which complaint is made. In our judgment the interventions were appropriate: most appear to have been generated by the involvement of the interpreter, which led on occasions to a need to clarify. 30. At one point during the Appellant’s evidence in chief the Judge queried the relevance of a line of questioning, which concerned the professional qualifications of a nephew of the Appellant. After Defence Counsel indicated that he would leave the point, the Judge explained to the Jury why he had intervened, which was to do with relevance of the nephew’s qualifications. The examination-in-chief of the Appellant was then concluded. However, the Judge returned to his intervention in the absence of the jury the following morning, expressing the concern that he may have been “rather short” with Defence Counsel. It was agreed that the matter should be left to rest for the time being; and the Appellant was then cross-examined. 31. At about mid-morning, the Judge gave the Court a short break, primarily for the benefit of the interpreter. In the absence of the Jury the judge returned to the question of timing with Prosecution Counsel: JUDGE: Well … I am mindful of the fact, and it is incredibly important, we are already two days over the time estimate you gave for this trial. COUNSEL: Yes. JUDGE: This jury are expecting to end on Friday, no one wants corners to be cut, but we have to be concise and use our time well. I am already asked for a break this afternoon with the jury to go through legal directions, we cannot go at a snail’s pace, so what I would like you to do is to start putting the Crown’s case. I am not criticising, a lot of potentially valuable background has been covered, but we need to move into another gear now. COUNSEL: Yes, I’ll speed up. 32. A little later there was a further exchange with Prosecution Counsel on the need to make progress: JUDGE: Okay, pause for a moment, now we have been back and forth on the question of cover many, many times, I think the jury know the battle lines; just so you know, I think by 10 past one I expect you to have finished cross-examination. 33. When it came to the family meeting, Prosecution Counsel put to the Appellant that most of the conversation took place in English, and that D’s partner had asked the Appellant directly whether or not he had assaulted D. The Appellant’s evidence was that he had said repeatedly that he had not abused D and that D’s partner had shouted at him saying “You did, you did, you did” and “You better admit it.” He admitted to having scolded D in the past and said that he had asked for forgiveness and had bowed down at her feet so that the Social Services would not take his children away. He flatly denied that he was lying and said that it was D and her partner who were the ones who were lying. 34. It is apparent that the Judge gave prosecution counsel a few more minutes than he had indicated because the time came when the following exchange occurred: JUDGE: Okay, pause, I gave you five minutes extra because of the interlude with the interpreter, but that is the end – COUNSEL: Yes, [inaudible] in due course in order to direct the jury, the questions of counsel and the repetition of the allegations is not evidence in the case. JUDGE: Well, that applies to both counsel, that is true. COUNSEL: It does, indeed. 35. At the start of the afternoon session, and before the Appellant was re-examined, the Jury sent a note to the Judge to which he responded as follows: JUDGE: What a polite note, ladies and gentlemen, I will read it out to counsel, I was going to do this, but you pre-empt me, ‘Please may the judge assist the jury in understanding the process remaining for the current case? We recognise the right to a fair trial regardless of how long it may take, but a brief overview would be helpful to us if that would be allowable’. Right, I will return to this a little bit later, but the short answer to your question is we anticipate finishing all the evidence in the case today. I will then need to ask you to leave us, so you are going to have a fairly early day today, I suspect, while I discuss some legal directions with counsel and then tomorrow, Thursday, the plan is for me to begin my summing-up to you, the legal summing-up, for counsel to make their closing speeches to you and for me to remind you of some of the evidence that you have heard and that is expected to take all of tomorrow. Our current plan is it is expected that you may go out to begin your deliberations on Friday morning. Now, I appreciate that you were probably expecting to finish on Friday, which may well be the case, but it is important that you do not feel any extra anxiety were your deliberations to continue into Monday. So, if any of you have, as I say, it may not be a problem, but if we are in that position, would you think about that and would you pass me a note to let me know what, if any, difficulty there would be were deliberations have to continue on Monday, pass me note if there are any anxieties about that and I will consider it. 36. The Appellant was then briefly re-examined by Defence Counsel. The re-examination did not elicit any further evidence about the family meeting. 37. We can now turn to the summing up, which was a split summing up with the legal directions being given in writing and orally before counsel’s speeches and the Judge’s summary of the evidence being given orally after them. 38. One particular aspect of the legal directions forms the basis of Ground 2. In what were otherwise uncontroversial directions, the Judge included two sections, entitled in the written version “Avoiding myths and stereotypes” and “Children and young people”. We set them out in full as given orally by the Judge: Now the next section I have headed ‘avoiding myths and stereotypes’. Before I turn to the document, rape, historical sexual allegation, sexual abuse, all of these allegations come with a lot of baggage and talk in the media and opinions that you may have held. So what I have put here is, it is for you and you alone to assess whether or not you believe … the complainant. … However, it is important that you do not bring to that assessment any pre-conceived views as to how a witness, in a trial such as this, should react to the experience. Any person who has been sexually assaulted will have undergone trauma. It is impossible to predict how an individual will react in the days following, in the months since, and in the years since, and in speaking about it in public. The experience of the courts is that victims of sexual abuse react in different ways. Everyone is different. Some will display obvious signs of distress, others will not. It does not automatically follow that signs of distress by the witness confirm the truth and accuracy of the evidence, any more than lack of signs of distress indicate that they are being untruthful. How a witness gave their evidence and what you made of them is very much part of your job, as long as you remember not to bring stereotypes, or preconceptions, as to how people are supposed to react, into play … The next topic, children and young people. I am going to make some further comments, based on the experience of the courts, but they are not a direction of law and you are not obliged to adopt or follow them. Whether you agree with them and whether any of them apply to this case is entirely a matter for you. The defence say that if these things had really happened to her, you would have expected her to have complained, or protested, to someone sooner than she did. They say the fact that she did not complain, at the time that they were happening, makes her subsequent complaints less likely to be true. When you are considering her reliability, you are entitled to consider why she did not make a complaint sooner, and you are entitled to consider whether the delay undermines the reliability of what she has told you. As with all decisions concerning quality and reliability of evidence, those are matters for you, not me, to decide, but I am going to make a few remarks about delayed complaints, in cases involving people who were then children or young persons. When you are considering the reasons why a child, or young person, has not made a complaint, you must remember first and foremost that you are considering the behaviour of a child, or young person. Experience shows that they do not behave in the same way as adults. They do not have the same experience of life and the same levels of maturity and this is reflected in the way they react to events, and that includes the way they react to sexual attention. When children and young people are sexually assaulted, or abused, they may not be aware that what has happened to them is wrong. They may be confused about what has happened and they may even blame themselves for what has happened. If they do appreciate that what has happened is wrong, they may be inhibited from speaking out for a variety of reasons. They may have been told not to tell anyone. They may be afraid that if they do tell someone, they will not be believed. They may be scared of the consequences of speaking out. They may be scared for themselves and they may be scared for other people and the effect it will have on relationships which they value and this difficulty may be compounded, where it would involve speaking out against a family member. As a result, they may have very confused and mixed feelings about whether to speak out as they get older and as they mature into adults. They may simply blank out what has happened to them and get on with their lives, until the point comes when they feel ready to speak out, or someone, or something prompts them to speak out. It would be wrong to assume that every person who has been the victim of sexual assault will report it as soon as possible. The experience of the courts is that victims of sexual offences react to the trauma in different ways. Some in distress, or anger, may complain to the first person they see. Others who react with shame, or fear, or shock, or confusion, do not complain, or go to authority for some time. It takes a while for self-confidence to reassert itself. There is, in other words, no classic or typical response. Do not stereotype. A late complaint does not necessarily signify a false complaint, any more than an immediate complaint necessarily demonstrates a true complaint. It is a matter for you to determine whether, in the case of this complainant, the lateness of the complaint, such as it is, assists you at all and, if so, what weight to attach to it. You need to consider what she herself said about her experience and her reaction to it. Now she told you that she had tried to tell her sister and mother about it, but they disbelieved her and she ended up thinking that no one would believe her. The defence, on the other hand, say she is lying about ever telling [SB], or her mother about it, until 2018 and this is a conflict in the evidence, which ultimately depends on your assessment of the credibility of [D] and whether you are sure about her account. 39. The Judge had, in accordance with best practice, provided a draft of his proposed written directions to Counsel on Day 8, 10 February 2021, with a view to his summing up starting the following day. It is apparent from the transcript that both Counsel communicated with the Judge overnight by email making suggested amendments. There was then a discussion between the Judge and Counsel on the draft in the light of those suggestions from which it is clear that Mr Burton had suggested that the section on Children and Young Persons should be omitted from the written directions. Sensing that the Judge was against him, Defence Counsel questioned whether its inclusion might lead the Jury to think that it reflected the Judge’s view of what had been made of the lack of complaints. Prosecution Counsel submitted that the Judge had prefaced the whole section by reminding the Jury that it was a matter for them whether or not they accepted and that the direction was merely telling them about the Court’s experience. Defence Counsel responded that, although he agreed that the section on Children and Young Persons contained “highly relevant considerations”, the Judge might also include that it may be the experience of the Jury that children are capable of lying. In his ruling, the Judge referred to Defence Counsel having “politely raised” the point, but he concluded that it was appropriate for the Jury to have the passages in writing as it concerned their approach to the evidence and that it was more helpful for them to have it “crystallised” before they heard the speeches of counsel. He rejected the submission that the passages gave “any portrayal of an opinion” by him. 40. Turning to the Judge’s summary of the evidence, he took the evidence of the witnesses in turn rather than providing a single narrative approach and incorporating relevant evidence into that narrative. Adopting this approach is not the subject of any criticism by the Appellant. We have reviewed the summing up as a whole, giving particular attention to the Judge’s treatment of the family meeting. 41. The Judge summed up D’s evidence fully. His summary included her evidence in chief about the family meeting and a similarly thorough review of Defence Counsel’s cross-examination save that review of the cross-examination did not include reference to the family meeting. His review of the evidence of D’s partner covered both examination in chief and the putting of the defence case fairly and even-handedly, including the witness’ account of the family meeting. When he dealt with the Appellant’s evidence about the meeting he captured the essential points that the Appellant had made fairly and even-handedly; and he referred to the “stark contrast” between the Appellant’s evidence and that of D’s partner. Similarly, when dealing with SB’s evidence about the meeting, he provided a fair summary of the essential elements of her account. Viewed overall, his treatment of the witnesses’ accounts of the meeting was fair and even-handed despite the omission of any mention of Defence Counsel’s attempt to roll up his case and to put it as his compendious last question or of D’s response to it. The Jury could have been in no doubt about the nature of the evidence the witnesses had given, the stark contrast between the opposing versions of events, the importance of the prosecution’s assertion that the Appellant had admitted that he had abused D, and the strength of the Appellant’s denial, supported by SB, that he had done so. 42. At the conclusion of his summing up, the Judge returned to the question of timing, saying to the jury: There is no pressure of time. To the juror who sent me a very polite note, expressing some anxieties about his workplace, I have already told you that your role, as keyworkers in this trial in progress, could not be more important and there is a legal duty for all employers to give way to jury service, until you finish. I will not be deaf to problems, so if that gentleman, or if anybody else has an anxiety, do not suffer in silence, pass me a note and let me know, but otherwise you will deliberate today, until 6 o’clock if necessary. If you have not finished, no pressure of time, you will come back on Monday morning at 10 and work through the day. No pressure of time, time is unlimited, and no one must feel hurried. 43. The Jury retired at 11.26 am. In their absence Defence Counsel voiced concern at the Judge’s suggestion that the Jury might deliberate until 6pm if required to do so. The Judge’s reaction was that everyone knew they would go into the following week if necessary but that he would keep them late as indicated. In the event, the Jury returned their verdicts at 12.41, 1 hour and 15 minutes after retiring. The Appeal 44. Mr Scobie QC ran the two grounds of appeal that we have outlined above in tandem. He submits that the grounds should be seen in the context of persistent time pressure being placed upon Counsel; and in that context he contrasts the treatment of Defence Counsel with that afforded to the Prosecution. It was agreed on all sides that either D or the Appellant had come to Court with the deliberate intention of lying. The great majority of what was alleged by the Crown took place (if it occurred at all) out of sight of others. Mr Scobie submits that the family meeting therefore has added importance because it is the one area where the evidence of D and the Appellant respectively can be seen and tested in a context where direct evidence is also given by others, namely D’s partner and SB. 45. Mr Scobie submits that the passages we have set out at [14]-[18] above show a confrontational refusal to allow Defence Counsel to put an important part of his case, which may have left the Jury with the impression either that the family meeting itself was unimportant or that the Defence case in relation to it was unimportant and could be disregarded or that Defence Counsel’s cross-examination was being criticised. The effect of the passages, he submits, was to undermine Defence Counsel at a critical stage of his cross-examination. He submits that, although there were evident pressures of time, doubtless exacerbated by the logistical difficulties imposed by the pandemic, they did not justify so peremptory an approach: it would have been possible and appropriate to let Defence Counsel finish his cross-examination, which would have taken only a few minutes and could readily have been explained both to the witness and to the Jury. 46. Mr Scobie submits that the combined effect of the written and oral directions on “Avoiding myths and stereotypes” and “Children and young people” was to bolster the evidence of D to the disadvantage of the Appellant. Taking that together with the peremptory curtailment of Defence Counsel’s cross-examination he submits that the trial was unfairly tilted against the Appellant such that his conviction is unsafe. As he put it in reply, it is not possible to repair in a summing up what has not been properly tested with the principal witness for the Crown, namely D. In a passage of advocacy of consummate skill he attempted to plant in our minds the doubt that he says a Jury may have felt about the case that the Defence was attempting to run. And he submits that the Judge’s reference to sitting to 6pm on the Friday, if need be, may have suggested to the Jury that this was a black and white case where the Jury could and should return their verdicts in even time. 47. We note in passing that there is no ground of appeal to the effect that the 6pm indication itself or in combination with other time restraints renders the convictions unsafe. It is, as Mr Scobie made plain, relied upon as providing context for the two grounds of appeal that are pursued. 48. Responding on behalf of the Crown, Mr Munday frankly (and rightly) concedes that the termination of Defence Counsel’s cross-examination of D does not read happily. But he submits that Mr Burton’s rolled-up final question effectively put the defence case on the family meeting to D. In any event, he submits that any adverse inference that the Jury might otherwise have drawn was forestalled by the Judge’s clear direction to the Jury that the curtailment of time was his, the Judge’s, responsibility and that, if they thought the time limit was short, they should blame him and not Defence Counsel. He submits that the Jury could not have been under the impression that the family meeting was unimportant or under any misapprehension about the contrasting cases being advanced by the Crown and the Defence. 49. Turning to Ground 2, he points out (correctly) that the text for the directions closely followed drafts in the Compendium which are routinely followed; and he submits that there was suitable tailoring to meet the facts of the present case. The giving of the direction was justified by the repeated putting to D of the Appellant’s case that she had not complained to others; and he relies upon the fact that Defence Counsel expressly accepted that the Children and Young Persons direction should be given – his only reservation being that it should have been given orally and not in writing. He repeats the submission that he made at trial that it is helpful for the Jury to have as much as possible crystallised in writing so as to provide the legal framework for the speeches of counsel. He rejects the suggestion that there was an antagonistic atmosphere and submits that the Judge’s interventions, viewed overall, were even-handed and appropriate. 50. Mr Munday informed us that Friday 12 February 2021 was scheduled to be the jurors’ last day of service; but he submits that the Judge made it clear that the importance of their task meant that they could and would go over into the following Monday if necessary with no pressure to reach a conclusion on the Friday. He submits that the pressures of time were at least in part a reflection of the additional difficulties imposed by the pandemic. As an example of the practical effects of the pandemic he points to the fact, which appears more than once on the transcript, that disinfection and cleaning of the witness box had to be carried out between each witness and, as was commonplace during the pandemic, the Jury were not able to retire to a convenient enclosed space for “just for a few minutes” but had to be led to a place of safety, ensuring that they did not come into contact with others. The need for SB to comply with the curfew in India is another practical example of the logistical difficulties typical of those facing trial judges throughout the land during the dark days of the pandemic. He submits that the Judge’s references to time pressure were appropriate and do not cause or contribute to any lack of safety in the Appellant’s convictions. And, despite the time pressures, he points to accommodation provided by the Judge to the Defence, including allowing Defence Counsel time to take instructions during the trial, interposing SB before the Appellant gave his evidence, and permitting the Appellant to start his evidence in the morning rather than at 2.40 in the previous afternoon. Resolution 51. As a preliminary observation, it is plain that the pandemic was imposing additional demands on the conduct of this trial, as the Court ensured that the safety of Court users was protected as far as reasonably possible. We accept without hesitation that this would have made some routine steps, such as asking the Jury to retire for a few minutes, more complicated and time consuming. Though there is no mention of this in the transcript, our collective experience leaves us in no doubt that the difficulties of maintaining social distancing and other measures for the safety of all concerned would be increased if one jury panel over-ran so that there were additional people to be protected when the following week began. While these complications affected the speed and efficiency of the trial process, it was always essential to ensure that they did not compromise the fairness of the trial process. 52. Second, it is plain that the Judge had hoped to complete the trial before the end of Friday 12 February 2021 and that, from time to time, he felt it necessary to intervene with both Prosecution and Defence Counsel to urge greater speed. The great majority of these were conventional examples of a Judge perfectly properly encouraging counsel to leave a point that had been sufficiently covered (or covered on a previous occasion) or where a Judge seeks clarification either from a witness or from counsel: see, for example, [23], [29] and [32] above. Having scoured the transcripts, it seems to us that there are four occasions which bear further examination. 53. The first is the manner of the imposition and enforcement of the guillotine on Defence Counsel’s cross-examination of D. We have set out the relevant exchanges at [14]-[18] above. We accept (as did Mr Scobie) that the imposition of time-limits and their enforcement are commonplace in Crown Court Trials, particularly those involving allegations of sexual offending, and that the discretion of the trial judge in relation to the setting and enforcement of time-limits is broad, the touchstone being that the fairness of the trial must not be compromised: see R v Butt [2005] EWCA Crim 805 at [16]. In the present case, the Judge was confronted by a witness who was finding matters distressing. He took the view that prolonged cross-examination would lead to diminishing returns and increased episodes of distress and that it was not in the interests of the Appellant for that to happen: see [14] above. In addition he took the view that imposing a time limit was appropriate to protect D. Those were views that he was fully entitled to take and we do not criticise his conclusion that cross-examination should be curtailed. It appears that the Judge may have been under a misapprehension about how long the cross-examination had lasted when he came to formulate his view about how much longer Defence Counsel should have; and it also seems to us that just under 90 minutes in total is quite tight given the amount of material that Defence Counsel had to cover in order to put the main features of his client’s case. However, it was undoubtedly within the range of durations that the Judge was entitled to impose; and the time limit, though tight, cannot reasonably be described as arbitrary. Rather it can and should be seen as the Judge’s assessment of what further period of cross-examination best protected both the Appellant and D when the time limit was first set. Nor would we criticise the manner in which the time limit came to be set, which we have set out at [12]-[15] above. The gradual movement towards imposing the time limit were characterised by proper and courteous discussion with counsel leading to the Judge’s decision. 54. In some cases there may be compelling reason why a time-limit, once set, should be enforced to the minute, either to protect a witness or because counsel is making poor use of the time allowed to them. It is not clear that this was such a case. There is no sign that D was distressed in the minutes approaching 12 noon, and her reply to Defence Counsel’s rolled-up question, when it came, shows that she was still fully able to maintain her evidence. Defence Counsel had been using his time competently and had covered considerable ground in the time he had been given. In our assessment, he needed only a very few minutes – five at the outside – to put his case on the family meeting properly to the main prosecution witness. It would have been relatively easy for the Judge, who was clearly fully in control of his Court, to explain both to D and to the Jury why her cross-examination was to be prolonged for that short while. 55. As the clock ran down, the guiding principle should as always have been fairness or, more particularly, the risk of unfairness to either the prosecution or the defence. We do not criticise the Judge for his instinctive wish to maintain the time limit that he had recently set. Furthermore, it would have been possible for the Judge to impose the guillotine at 12 noon while making plain to the Jury, as he had done before, that the responsibility for curtailing the cross-examination lay with him and not with Defence Counsel. Adopting this approach in circumstances where it could not be said that Defence Counsel had squandered the time available to him would have provided added comfort for the Appellant while maintaining the time limit of which all parties had been made fully aware. However he did it, enforcing the guillotine in the present case was going to mean that Defence Counsel would be stopped before putting his case on the family meeting as he would wish and as normal competence would dictate. It was therefore a significant step to take, though one that was within the range of decisions that the Judge was entitled to take. 56. Where we part company with the Judge is in his handling of the enforcement of the guillotine. As Mr Munday rightly accepted, it does not make for happy reading. It is, in our view, a marker of the unsatisfactory manner in which the termination was handled that experienced and competent Defence Counsel felt compelled to suggest in front of the jury that he was being “harangued”. The Judge did not agree. We have not heard the voices and so cannot gauge the tone of voice that was being employed; but it is sufficient to say that, on the basis of the transcript, we can understand why Defence Counsel responded as he did. It may not be necessary to try to analyse precisely what went wrong when, in our judgment, the overall effect was clear, but some points may be identified, dealing first with the passage we have set out at [17] above. First, to start by saying “Twelve o’clock, so this is your last question” can only be described as peremptory since it would be obvious that Defence Counsel was unprepared for the directive that he had only one question. Whether Defence Counsel should have been prepared is of secondary importance since the Judge had to deal with how things stood at 12 noon. Second, it was really no answer to say, when Defence Counsel pointed out the importance of the family meeting, that he had been given notice, that it was now 12 o’clock and that it was now time for a last question. That response smacks of an unexplained and unnecessary adherence to form rather than the result of a reappraisal of the balance of fairness to D and the Appellant. Third, the question “Do you want to ask another question or not?” seems to us in context to be confrontational rather than judicially firm, an impression that is heightened by the Judge saying a moment later “Ask your last question or sit down.” 57. To this extent we accept Mr Scobie’s submission that the manner of the termination of Defence Counsel’s cross-examination of D gives rise to two legitimate concerns: first, that it could have affected the Jury’s view of Defence Counsel in relation to his failure to complete his cross-examination of D in time; and, second, that it could have left a member of the Jury with the perception that the family meeting was less important than it actually was. To that extent, and viewed in isolation, we accept that the manner of termination raises a question about the fairness of the trial process. We emphasise immediately, however, that such a question requires this episode, which lasted a matter of seconds, to be seen and assessed in the context of the trial as a whole. That is an exercise to which we will return later in the judgment. 58. The episode was concluded by Defence Counsel’s attempt to roll up the case that he would have wished to put into his one last question. In normal circumstances, had counsel rolled up what amount to at least five questions into one, any Judge would intervene to require the composite question to be broken down into its constituent parts. That said, Defence Counsel’s rolled up question was a manful effort; and, more importantly, it was clearly understood by D who gave a reply that showed she was still well able to contend with the cross-examination to which she had been subject. To that extent, the composite question and answer blunt the point of the submission that Defence Counsel was not able to put his case. It does not demolish the point altogether because putting the case by proper (single) questions is preferable to having to rely upon a composite one. But it reduces any danger that might otherwise have existed that the Jury would undervalue the importance of the family meeting or not understand the Appellant’s case in relation to it. 59. Before leaving the episode for the time being, we consider that the exchange between Defence Counsel and the Judge that we have set out at the end of [18] above continues the unhappy manner in which the guillotine was enforced, though we repeat the reservation that we have not heard the tone of voice in which it was conducted. 60. The second feature upon which Mr Scobie relies contrasts the manner of enforcing the termination of Defence Counsel’s cross-examination of D with the manner of the imposition and enforcement of the time limit for Prosecution Counsel’s cross-examination of SB and the Appellant: see [24], and [32] and [34] above respectively. We see no distinction in relation to the initial imposition of the time limits, which were courteous and appropriate as they had been with the initial imposition of the time limit for Defence Counsel’s cross-examination of D. It does not appear from the transcript that the Judge had to enforce the time limit he had set for Prosecution Counsel’s cross-examination of SB. When it came to time to enforce the time limit on the cross-examination of the Appellant, the Judge allowed Prosecution Counsel five extra minutes “because of the interlude with the interpreter.” What if anything is to be made of this fleeting episode? We would not criticise the decision to give Prosecution Counsel five extra minutes, for the reason given by the Judge. What it does suggest, however, is that the pressures of time were not so extreme as to exclude the possibility of a few minutes’ flexibility. To that extent it supports the suggestion that the Judge could have given Defence Counsel the additional few minutes he needed to conclude his cross-examination of D, even in the absence of any interlude with the interpreter or similar justification. Overall, however, the distinction between the two approaches is, to our minds, of no real significance. We cannot conceive of the possibility that a juror, or the Jury as a whole, would have been influenced in a way that was adverse to the Appellant’s interests because the Judge reasonably gave Prosecution Counsel a few extra minutes after an interlude with the interpreter. 61. The third feature upon which Mr Scobie relies is the exchange that we have set out at [20] above. We are not satisfied that this adds anything material. On the contrary, it seems to us to have been a reasonable resolution by the Judge of the point that had arisen about whether a witness was being led improperly by Prosecution Counsel. The lack of clarity led the Judge, reasonably in our view, to conclude that the quickest way through was for him to take over questioning with unimpeachable open questions for a brief period before handing back to Prosecution Counsel. It was a good example of a judicial intervention that got things going again rather than getting bogged down in a dispute between counsel in the presence of the Jury. In the course of so doing he indicated that Defence Counsel’s objection was being dealt with by his questions and that Defence Counsel should sit down. We are unable to detect any hint of animus or inappropriate direction in what the Judge said. 62. Last comes the episode that we have outlined at [23] above. We have already referred to an occasion during the cross-examination of D when the Judge intervened to direct Defence Counsel to move on rather than recycling matters with which he had already dealt: see [13] above. We are not able to discern anything untoward in the exchange that we have set out at [23] above, with the possible exception of the Judge’s remarks in the last line that we have set out. Much more important is that the Judge set out clearly at the outset why he was intervening. Most importantly, and not forgetting the last line of the citation, we are unable to detect any sign of animus or conflict in the dealings between the Judge and Counsel on this occasion. 63. We have referred at [30] above to a similar intervention, again relating to relevance, during the Appellant’s evidence in chief. This subsequently gave the Judge cause for concern on the basis that he had been “rather short” with Defence Counsel. We have scrutinised the transcript and find no basis for significant criticism. The Judge explained to the Jury why he had intervened and his intervention appears to us to have been justified. We can find no evidence of animus, confrontation or undermining of Defence Counsel in the passage which gave the Judge his concerns. We are confident that the correct course was followed, namely to let it lie. Neither on its own nor in its immediate or wider context do we find any reason to suggest that the intervention could have acted unfairly or to the Appellant’s material disadvantage. 64. We have identified the passages upon which Mr Scobie has relied. In relation to the termination of Defence Counsel’s cross-examination of D we have accepted that the manner of termination, viewed on its own, gives cause for concern. We have also identified the limited significance of the Judge not enforcing to the minute the time limit he had imposed upon Prosecution Counsel in respect of his cross-examination of the Appellant. However, despite the very great skill with which the appeal has been advanced, we are not persuaded that any of the other passages upon which Mr Scobie relies give any cause for concern. Specifically, they do not substantiate the presence of any degree of unacceptable animus or conflict passing between the Judge and Defence Counsel. To the contrary, extensive study of the transcripts shows that, with the one exception we have identified, the Judge was unfailingly courteous, reasonable and even-handed in his dealings with both Counsel. 65. The conclusion that the trial was conducted overwhelmingly courteously, reasonably and even-handedly provides the wider context for the termination of the cross-examination of D. As we have indicated, that happened during Day 3 of a 10 day trial. Extensive review of the transcripts shows that the brief episode was out of line with the general conduct of the trial to such an extent that, even if a manner of termination had raised a question in the mind of a juror or jurors at the time as Mr Scobie suggests, the conduct of the rest of the trial would have provided a significant part of the answer to any such question. Thus, even accepting for the purposes of argument that the manner of the termination had the potential to raise questions in the mind of the Jury which could have given rise to a risk of an inference being drawn that was unfair and adverse to the Appellant, that potential and risk were substantially dissipated by the conduct of the rest of the trial. 66. We have reached the clear conclusion that the failings in relation to the termination did not, in the end, give rise to any actual risk of unfairness or that the Appellant’s conviction may be unsafe. We have reached that conclusion taking into account both Ground 1 and Ground 2. 67. The first element of the appeal is to suggest that Defence Counsel was undermined by the termination in such a way as may have made the Jury liable to discount his contribution. As we have said, the wider context of the Judge’s dealings with both counsel, which were reasonable, appropriate and lacked any sign of animus, supports the conclusion that there is no risk that Defence Counsel was undermined in the eyes of the Jury. We also take into account that the Judge had forewarned the Jury about the time limit and taken responsibility upon himself if (as happened) his time estimate proved to be too short: see [15] above. Though not a full or complete answer, it weighs in the balance when considering whether there is a risk that Counsel was undermined materially and unfairly. 68. The second element of the appeal is that the termination of the cross-examination may have suggested to the Jury that the family meeting was not important. We reject this submission, again by reference to the wider context provided by the trial as a whole. As we have identified, the family meeting was covered in depth by three other witnesses (D’s partner, SB and the Appellant himself) and summed up appropriately by the Judge. In our judgment, the Jury cannot conceivably have been in any doubt that the meeting was important, as was the clash of evidence about it. 69. Nor can we accept that the termination of the cross-examination as it happened could have led to any lasting confusion about the nature of the Appellant’s case. The Jury cannot have been in any doubt about the respective cases of the Prosecution and the Defence about the family meeting, as these were clearly laid out for them in the evidence – including that of the Appellant - and the summing up. We have referred already to the effect of Defence Counsel’s rolled up question and D’s answer to it, which set out with reasonable clarity both the Appellant’s case and D’s response to it even if a sequence of single questions and answers would have been preferable. We have also noted that the Judge did not include the last question and answer in his summing up of D’s evidence. We are not persuaded that this gives rise to any risk of unfairness. To the contrary, it may reasonably be thought that the Appellant was fortunate that they were not included since their inclusion is likely only to have reminded the Jury that D firmly stood her ground. In any event, there is no suggestion that Defence Counsel asked the Judge to cover it. 70. Although we have dealt with the Grounds sequentially and with Ground 1 first, we have not lost sight of the fact that Mr Scobie ran Grounds 1 and 2 in tandem. We have set out the passages to which the Appellant takes exception at [38]. Simply in terms of word count, they amounted to a significant proportion of the legal section of the summing up – contributing something over two pages to the 14 pages of written directions. That, however, is largely attributable to the relative simplicity of the other legal directions that the Judge was required to give as well as to the relative complexity of what needed to be said on Avoiding Myths and Stereotypes and Children and Young People. 71. Both of these sections of the legal summing up were in relatively standard form. At trial there was no objection to both sections being given, the only issue raised being whether the section on Children and Young People should be included in the written directions or merely given orally. This is not a promising starting point for an appeal. The Judge did not accept Defence Counsel’s invitation to add an express statement that children are capable of lying; but that is implicit in each of the sections under review and, in our judgment, did not need to be said to enable the Jury to understand the obvious. 72. The substance of the appeal as pursued before us on Ground 2 is that the length, complexity and combined effect of the two sections was to bolster D’s evidence to the unfair disadvantage of the Appellant to such an extent as to render the Appellant’s convictions unsafe either on their own or in conjunction with Ground 1. We are unable to agree. In our judgment it is necessary to look at why such directions are given. As their terms make clear, they are to address the risk of stereotypical thinking that would be unfair to the complainant. Each section deals with a different problem. The section on avoiding myths and stereotypes is a necessary protection against stereotypical reactions to a witness’ demeanour when giving evidence alleging that they have been sexually assaulted; and it encourages the Jury to make their own assessment of witnesses rather than bringing stereotypes or preconceptions into play. The section on Children and Young People is again a necessary protection, this time against the canard that an alleged victim’s evidence of sexual abuse is unreliable because they have not disclosed it sooner or more fully. This was precisely the case that the Appellant was running, most importantly by challenging D on her alleged failure to make disclosure to her family. 73. We accept that the effect of each direction may be to bolster the evidence of a victim; but it only bolsters their evidence to the extent necessary to prevent unfairness to the victim caused by the stereotypical thinking against which it warns. We see nothing unfair to the Appellant in the giving of both directions in this case. To the contrary, the giving of both directions was even-handed and fair: the giving of the direction on Avoiding Myths and Stereotypes had the potential to work in the Appellant’s favour, given that D had repeatedly become distressed while giving her evidence. The warning that “it does not automatically follow that signs of distress by the witness confirm the truth and accuracy of the evidence” was appropriate protection for the Appellant just as the section on Children and Young People provided appropriate protection for D. 74. We reject the submission that the Jury may have taken the two directions as reflecting the Judge’s personal view so that they may have been wrongly influenced against the Defendant in reliance on the Judge’s supposed view. The Judge had given the conventional and appropriate warnings earlier in the legal directions about the respective functions of Judge and Jury and that, if the Jury thought the Judge was appearing to express any views concerning the facts, they should not adopt those views unless they agreed with them. In addition, at the beginning of each section now under review, the Judge re-emphasised that it was for the Jury alone to assess whether they believed D and that his comments on Children and Young People were not a direction of law which they were obliged to adopt or follow and that whether they agreed with them was entirely a matter for them. He returned to them later, re-emphasising that the assessment of witnesses and evidence was a matter for them and them alone. 75. We have also taken into account Mr Scobie’s submission that the Grounds of Appeal should be seen in the context of a trial that was conducted under significant time pressure. This is not advanced as a separate ground of appeal. There can be no doubt that, as the trial progressed, the Judge became concerned about slippage and delays. That said, and with one startling exception, the Judge was astute to emphasise to the Jury that they were under no pressure of time and that their deliberations would go into the following week if required: see [35] and [42] above. The startling exception is the Judge’s suggestion at the conclusion of his summing up that the Jury would deliberate that day, Friday, “until 6 o’clock if necessary”. The giving of such an indication is beyond the combined experience of the present Court and, in our judgment, would require very cogent justification if it is ever to be appropriate. 76. Returning to Mr Scobie’s submission, we are not persuaded that the time pressure to which he refers alters the overall perception of a trial that was conducted fairly and, in the event, at no risk of rendering the Appellant’s conviction unsafe. 77. For these reasons, the appeal is dismissed.

2022_07_07-5376.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/926/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/926

cdcf159d676e1204eb02e8637248122827211d5fe3e7f35f07d755e52becb6e6

[2004] EWCA Crim 1197

EWCA_Crim_1197

2004-05-04

crown_court

No: 200400286 A7/AG REF 004/2004 Neutral Citation Number:- [2004] EWCA Crim 1197 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 4 May 2004 B E F O R E: LORD JUSTICE LATHAM MRS JUSTICE COX COMMON SERJEANT (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 4 OF 2004 JOSEPH GREEN - - - - - - - Computer Aided Transcri

No: 200400286 A7/AG REF 004/2004 Neutral Citation Number:- [2004] EWCA Crim 1197 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 4 May 2004 B E F O R E: LORD JUSTICE LATHAM MRS JUSTICE COX COMMON SERJEANT (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 4 OF 2004 JOSEPH GREEN - - - - - - - Computer Aided Transcript of the Palantype Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR R PEARCE appeared on behalf of the APPELLANT MISS Z JOHNSON appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE LATHAM: This is an applications by HM Attorney General for leave to refer to this court the sentence imposed on the offender on 12 December 2003 of 4 years' imprisonment for offences of aggravated burglary and two counts of robbery of which he was convicted at the Kingston Crown Court. We give leave to the Attorney General to refer this sentence. 2. The offender is 32 years of age. He has not served a previous custodial sentence. On 29 January 2003, together with two others, the offender went to a block of flats in Sutton. They rang the door bell. One of the men inside the flat went to answer. When he opened the door he was confronted by the three men, two of whom were armed with knives; one of those was the offender. They demanded money. The person who opened the door was pushed against the wall. When he denied having any money, he was pushed to one side as the intruders entered the flat and went upstairs. 3. The offender then confronted the other occupant of the flat, grabbed him by the throat, pushed him down onto the bed, threatened him with a knife and ordered him to remove his watch. He demanded money and when the man denied that he had any, the offender attempted to slash at his face, threatening to stab his eye out. He terrified him. One of the other intruders ripped a gold chain from the man's neck. There were further threats, in particular in relation to the cannabis which it was apparent the two occupants of the flat were smoking. When it had been identified one of the three intruders took it. There were persistent demands for money. 4. The offender then turned his attention to the other occupant of the flat whom he pushed against the wall and pressed a knife to the side of his face towards his mouth. The intruders then picked up a set of keys, took a portable television set, an electronic game machine, mobile telephones, jewellery and the cannabis. They then left. They had clearly terrified both occupants of that flat. 5. Fortunately the offender and those with him were seen escaping from the flat and getting into a car. The registration number was taken by a local shopkeeper which enabled the police to go to the offender's home address where he was arrested. He was identified later by both occupants at an identification parade. 6. At the trial he sought to blame those in the flat for burglary, saying that all he had intended to do was to obtain items which had been stolen from him. The offender had 13 previous convictions, but had never received a custodial sentence. In a pre-sentence report he denied having carried a knife. The probation officer assessed him as posing a risk of harm to known adults but not to the public at large. 7. This was clearly a planned offence by three men who went armed to the premises in question. The use of the knife did cause injury although it was a relatively superficial injury. The offence took place during the hours of darkness. 8. Miss Johnson, on behalf of the Attorney General, has referred us to three authorities, which it is submitted provide guidance to this court as to the appropriate level of sentencing for offences such as these. The first is the case of Attorney General's Ref No 35 of 2001 [2002] 1 Cr App R (S) 44 . In that case the court was confronted with an offender who had burgled the home of a man aged 72 with a knife. He had been sentenced to three and a half years' imprisonment after a plea of guilty. In giving judgment the court said: "What would a proper sentence have been? In our view, no less than six years on a plea of guilty, that is to say, giving credit (and substantial credit) for the plea of guilty." 9. In R v Harrison [2002] 1 Cr App R (S) 107 this court upheld a sentence of 5 years' imprisonment imposed following a plea of guilty for an offence of aggravated burglary (where the offender was carrying a knife). In R v Brady [2000] 1 Cr App R (S) 410 this court upheld a sentence of 7 years' imprisonment for aggravated burglary on premises occupied by a 70-year old. From those authorities counsel for the Attorney General derives the submission that the appropriate sentence in this case, where there was no credit to be given for a plea of guilty, must have been in the region of 8 years. With that submission we agree. The question therefore is, what should this court do? 10. There is no doubt that the sentence of 4 years' imprisonment was unduly lenient, but we have to take into account the matter of double jeopardy. In the present circumstances we also take into account, as Mr Pearce on behalf of the offender has submitted we should, the material set out in a letter from the offender which we have had an opportunity to read. 11. It is plain that the result of this offence has destroyed the offender's life. He has lost his wife and children in that his marriage has now come to an end and he has not been given an opportunity to see his children whilst he has been in prison. It is clear from what he says that, whilst in prison, he has impressed. He is now an enhanced prisoner; and there was an incident in which he behaved with conspicuous bravery. That enables us to say that we can properly discount from the sentence of 8 years' imprisonment, which would otherwise be appropriate, to a sentence of 6 years' imprisonment. We consider that that is the most that we can do by way of mitigating the appropriate sentence in this case. 12. Accordingly the sentence we impose is one of 6 years' imprisonment.

2004_05_04-231.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/1197/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/1197

e983d408138ca6aa80da7a3f9991e98f4ee5dd8f3ac93c5a3fd641ee31b50938

[2005] EWCA Crim 2485

EWCA_Crim_2485

2005-10-06

crown_court

No: 200503862/A1 Neutral Citation Number: [2005] EWCA Crim 2485 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 6th October 2005 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE GOLDRING MR JUSTICE WILKIE - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 77 OF 2005 (DAVID TIMMINS) - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Li

No: 200503862/A1 Neutral Citation Number: [2005] EWCA Crim 2485 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 6th October 2005 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE GOLDRING MR JUSTICE WILKIE - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 77 OF 2005 (DAVID TIMMINS) - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR M HEYWOOD appeared on behalf of the ATTORNEY GENERAL MR D WHITE appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: The Attorney-General seeks the leave of the Court, under section 36 of the Criminal Justice Act 1988 , to refer a sentence said to be unduly lenient. We grant leave. 2. The offender was born in November 1984, so he is now 20 years of age. On 14th March 2005 he faced an indictment containing eight counts. At a pre-trial review he pleaded guilty to the fourth count, which was robbery of James MacDonald of a mobile telephone. Sentence was adjourned for reports and, on 22nd June 2005, he was sentenced by Mr Recorder Sanghera, sitting at Worcester Crown Court, to a community penalty consisting of a community rehabilitation order of 12 months and a community punishment order of 100 hours. He was also subjected to a curfew order and directed to register and comply with the requirements of an offending behaviour program. 3. The facts were these. The offender is just under 6 feet tall and lived in Redditch. The victim was 16. On the evening of 20th November 2004 he had been out with friends including another 16 year old called Martin Lacey. At about 1.40 am they were walking home along a footpath in Redditch. The offender was out with another young man known as 'Panda'. The offender saw the two 16 years old and called on them to stop. The boys walked on and they were concerned. The offender again called on them to stop and they did. He asked for a cigarette. He was told they did not have one. They recognised him and they also recognised 'Panda'. 4. The offender was wearing a top with a hood up and he looked as though he was affected by drugs. He demanded money. He was told that it had all been spent and he asked for their mobile telephones. He approached more closely, holding a bladed weapon, which looked like a Samurai sword, in his right hand. At first this was sloped over his shoulder. It was about two feet long. Panda held back and did not involve himself. Indeed, he said to the offender "just leave it". The offender demanded the telephones of the two boys. They refused. The offender became more aggressive and threatened to chop off their hands and he then put the sword in his left hand, clenched his right fist and threatened to punch the victim in the face. He asked if the victim wanted to be battered. He hit the victim once with the sword on the shoulder or arm but no injury was caused. He later hit out again with the weapon and he also slapped the other 16 year old across the side of his face with his open hand. In fear, James MacDonald handed over his mobile telephone. The offender told him to put it on the ground and back away. Martin Lacey refused to hand over his telephone and said he recognised the offender. The offender sought to suggest that he did not. Panda returned and persuaded the offender to walk away, which he did, taking MacDonald's telephone with him. The whole confrontation lasted about 5 minutes and James MacDonald was left feeling very shaken and did not sleep that night. 5. The offender was arrested on 22nd November 2004. In interview he denied being responsible and claimed not to have been there but to have been at home, watching a football match between Birmingham and Blackburn on television. In a later interview he said he might have been mistaken because it was pointed out to him that that match had been televised the previous evening. But he continued to maintain an alibi and denied having possession of the weapon to which we have referred. 6. However, at a video procedure on 7th December, he was identified by both the 16 year olds. 7. The factual basis of the plea, as recorded on counsel's brief, was "sword in sheath, hit once to arm with sword, slapped a face, threat to cut hands off". The offender appeared before the Redditch Magistrates on 21st December and was remanded in custody where he remained until he was sentenced 6 months later. 8. On behalf of the Attorney-General Mr Heywood draws attention to two aggravating features: first, the use of a large bladed weapon to threaten and hit the victim; and, secondly, the circumstances of the offence, namely at night and in the town centre when the victims were two youths considerably younger than the offender. 9. Mr Heywood draws attention to the mitigating features, namely the plea of guilty at an early stage and the fact that the sword was not used to cut the victim. 10. The offender has unimpressive antecedents. He has been convicted of 12 offences since August 2002, particularly in relation to vehicles and drugs. He has been dealt with in a variety of ways, none of them previously custodial. On 28th November 2002 he was fined and ordered to pay costs by the magistrates for an offence of affray and on 6th December 2004 (which was of course after the present offence was committed) he was made the subject of a community punishment order and community rehabilitation order by the magistrates and was ordered to participate in an intensive control and change programmes. He was also ordered to pay costs and compensation, both of which orders we understand have subsequently been revoked. 11. For an offence of failing to surrender to custody he was fined. Those offences for which he was dealt with on 6th December had been committed in June and September 2004 and he was therefore on bail in relation to those offences when the present robbery was committed. He has also been cautioned on three occasions, including an occasion in 1999 for theft. 12. There was before the Recorder a pre-sentence report which described the offender's risk of reoffending as statistically high. The offence had occurred when he was intoxicated by alcohol and had a history of offending since the age of 14. The conclusion of the writer of the report was that there was a medium likelihood of re-offending with a medium risk of serious harm to the public. 13. The submission which is made by Mr Heywood, on behalf of the Attorney-General, is that the non-custodial sentence which was passed in this case was unduly lenient, there being no exceptional circumstances such as might justify a non-custodial penalty, in the light of the decision of this Court in Attorney-General's Reference Nos 4 and 7 of 2002 [2002] 2 Cr App R(S) 345 (see in particular paragraphs 4 and 5 of the judgment). 14. The submission which Mr Heywood makes is that, in consequence, the sentence passed was unduly lenient in failing to mark the gravity of the offence, the aggravating features and the need to protect the public, particularly those who are young and vulnerable. 15. On behalf of the offender, Mr White, in an admirably succinct submission, concedes that the sentence passed was a lenient one. He stresses that the offender pleaded guilty at the earliest opportunity, that he is still only 20, that he had spent 6 months in custody for the first time before he was sentenced, and no injury was caused in the course of this incident. 16. Mr White puts in the forefront of his submission a supplementary report prepared by the probation officer, for the benefit of this Court. From that, it appears that the offender is taking advantage of the opportunity which has been presented to him by the non-custodial sentence which was imposed upon him. Furthermore, he has carried out 36 of the 100 hours of the community punishment order. 17. The submission which Mr White makes is, even if this Court concludes that the sentence passed was an unduly lenient one, we should exercise our discretion in favour of not interfering with the sentence which was passed, having regard to events since. That submission persuades this Court. 18. There is no doubt that the sentence passed by the learned Recorder was an unduly lenient one. The sentence which he ought to have passed in relation to the offence should have been of the order of 3 years' detention in a young offender institution. That said, however, in the particular circumstances of this case, we do not think that the public interest would be served by interfering with the sentence which was passed and therefore we decline to do so.

2005_10_06-600.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/2485/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/2485

25fc418251e5eef31a8f08b2c5ad97cf11baf4fdf999b10612bf5bbeea9ca439

[2008] EWCA Crim 1892

EWCA_Crim_1892

2008-07-18

crown_court

Neutral Citation Number: [2008] EWCA Crim 1892 Case No: 200704186/D3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 18th July 2008 B e f o r e : LORD JUSTICE GAGE MR JUSTICE SILBER HIS HONOUR JUDGE RADFORD (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v AMER MUNIR - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Co

Neutral Citation Number: [2008] EWCA Crim 1892 Case No: 200704186/D3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 18th July 2008 B e f o r e : LORD JUSTICE GAGE MR JUSTICE SILBER HIS HONOUR JUDGE RADFORD (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v AMER MUNIR - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr Lawson-Rogers QC appeared on behalf of the Applicant Miss C Hatfield appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. HIS HONOUR JUDGE RADFORD: On 21st December 2006 in the Crown Court at Manchester, before His Honour Judge Gee QC, the applicant was convicted of one count of cheating the Revenue and of five counts of converting property to retain the proceeds of criminal conduct or to avoid prosecution. He was sentenced to a total of 7 years' imprisonment. Later, following an enquiry also before Judge Gee, a confiscation order was made, under section 71 of the Criminal Justice Act 1988 , in the sum of £5,600,483, with orders made for payment and imprisonment in default for not so doing. 2. The applicant now renews before us his application for leave to appeal against the amount of the confiscation order made against him or, put shortly, the issue this application concerns is whether the amount of the order was £1.94 million is in excess of what it should have been, it being argued, on the applicant's behalf, in writing and now before us, by Mr Lawson Rogers QC, that this sum represented the total of cash withdrawals made from the bank account used as a vehicle of the tax fraud perpetrated by the applicant which, contrary to the judge's ruling in the confiscation enquiry, is not now invested in hidden assets but as the evidence at trial advanced by the prosecution, it is said made very clear, was laundered through named and identified companies and through those vehicles into properties which have been identified as realisable assets, available for confiscation in the remainder of the amounts which led to the total order made by the judge. 3. The short point that is taken is that in reaching the conclusions that he did, the learned judge, in assessing the amount of the realisable assets, fell into error in not having given weight or proper weight to the evidence at the trial, which was, as far as the Crown were concerned, that the sum of £1,914,000, withdrawn in cash, principally in October 2001, from Talkland, the vehicle for the fraud, was, as they submitted to the jury, the Crown, and as the judge reminded the jury in summing-up, then passed to certain identified companies and thereafter through to traced investments. 4. The learned judge, it is submitted, fell into error in failing to take into account that evidence from the trial and by concentrating wholly on the absence of evidence from the applicant in the confiscation enquiry, and the fact that the applicant's forensic accountant, Mr Fairhurst, had based his conclusion on instructions from the applicant, instructions which had not been supported by evidence of the applicant himself before the learned judge. 5. We have considered the submissions that have been made to us and have been taken to passages in the final speech to the jury by learned leading counsel for the Crown and the learned judge's summing-up to the jury, recounting the evidence and the arguments that were presented on both sides. 6. The learned single judge, in refusing leave to appeal, it is also submitted fell into error by not appreciating that the issue that the grounds of appeal raised was not as to the amount found as benefit, about which there is no dispute, but as to whether, as we have stated, the amount of £1,514,000 represents hidden assets for the purposes of the confiscation order or, as the applicant maintains, were monies that were not hidden but clearly traceable on the Crown's own case at trial. It seems to us, having seen the observations of the learned single judge, that that certainly may have been the way in which he approached dealing with the application for leave. 7. Having heard, as we have, the submissions of Mr Lawson- Rogers and having been taken through the documentation, we have come to the conclusion that there are arguable grounds to present for further more detailed examination as to whether the learned judge failed to give weight or due weight to the evidence at trial when he came to consider this particular issue. 8. As the respondent's helpful skeleton makes clear, there are some issues that may arise as to particular sums that were found to have been invested in the companies concerned, which also should, we think, form the subject matter of more detailed consideration. 9. In short, we do conclude that there are arguable grounds, for the reasons advanced, for allowing leave to appeal against this confiscation order, so that the issue can be further investigated on another occasion and by another constitution of the Full Court. 10. LORD JUSTICE GAGE: What directions can we usefully give? I do not know how much detail you are going to go into in respect of the sums that can be traced through back to the companies. 11. MISS HATFIELD: I am afraid it seems to me that the full court is likely to have to look at a great deal of evidence from the original trial. I think much will be reduced to schedules -- my learned friend was present at trial and I, of course, was not. But it seems to me it is going to take certainly at least a day of the court's time. I would have thought a full day. 12. MR LAWSON-ROGERS: There are a number of schedules in tables in Mr Fairhurst's report, to which I have not taken you and which I think summarise the position so far as the traceable payments are concerned, and I am not sure my learned friend's pessimistic view is the right one. I would have thought, by reference to those, we can almost certainly agree which were the relevant movements as shown by the documentation, and the court would then simply be able to look at a relevant table or chart to see what was agreed between us. So I would have thought the best thing we can do is try to agree the form of which the evidence can go before the court and hopefully it can be agreed, I think it probably can. 13. LORD JUSTICE GAGE: Do you think it can be agreed? 14. MISS HATFIELD: I would be surprised if it could not. 15. LORD JUSTICE GAGE: Can we direct that an agreed schedule in relation to payments passing to and from various accounts, so far as relevant to this particular sum of money, is placed before the court. Any other documents that you want to refer to must be put into an agreed bundle. We better have skeleton arguments 14 days before the hearing of the appeal, 21 days, and the respondents 14 days before the hearing. If we were to say a hearing of 3 hours, would that...? 16. MR LAWSON-ROGERS: I am sure that would be adequate. If it turns out, when we have attempted to agree, there is a problem, we would obviously inform the court. I am sure 3 hours at the moment should be sufficient. 17. MISS HATFIELD: I am content with that. 18. LORD JUSTICE GAGE: If you think that there may be matters which need to be subject of a further directions hearing, will you let the court know and then it can be arranged. 19. The Registrar has asked about a representation order. You have not asked for one. 20. MR LAWSON-ROGERS: I am being instructed privately. 21. LORD JUSTICE GAGE: Thank you.

2008_07_18-1599.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1892/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1892

d2be0abccb86ded1c3738f80749c5b2e92f44d0f6f4e8d981028629ab69a68c7

[2014] EWCA Crim 595

EWCA_Crim_595

2014-03-06

crown_court

No: 201207231 B4 Neutral Citation Number: [2014] EWCA Crim 595 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 6 March 2014 B e f o r e : LADY JUSTICE SHARP DBE MR JUSTICE SILBER SIR RICHARD HENRIQUES - - - - - - - - - - - - - - - - - - - - R E G I N A v JOHN ANTHONY BURNS RAYMOND WILLIAM BRIERLEY - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications C

No: 201207231 B4 Neutral Citation Number: [2014] EWCA Crim 595 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 6 March 2014 B e f o r e : LADY JUSTICE SHARP DBE MR JUSTICE SILBER SIR RICHARD HENRIQUES - - - - - - - - - - - - - - - - - - - - R E G I N A v JOHN ANTHONY BURNS RAYMOND WILLIAM BRIERLEY - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2AY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - Mr P Wright QC appeared on behalf of the Applicant , Burns Mr J Coffey QC appeared on behalf of the Applicant, Brierley Mr I Harris appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LADY JUSTICE SHARP: On 22 November 2012, in the Crown Court at Liverpool, the applicants, John Anthony Burns and Raymond William Brierley, were each convicted of murder (count 1). On 23 November 2012, they were each sentenced to life imprisonment for the specified minimum term for Burns of 30 years and for Brierley of 25 years, less days spent on remand in custody. A co-accused, Scott Callaghan, was acquitted by the jury of count 1. He was convicted of one count of perverting the course of public justice and was sentenced to 8 years' imprisonment. 2. At some time between 12.15 and 13.00 hours on 8 June 2011, Paul Morson was killed at Church Lodge, Whiston, near St Helens. Church Lodge was Brierley's home. At the trial Brierley admitted he had killed Morson, but said he acted alone and in lawful self-defence. Burns and Callaghan admitted they had been at Church Lodge in the hours leading up to the killing, and were there in the immediate aftermath, but each denied participation in the killing. Brierley said that after the killing Morson's body was wrapped in black plastic sheeting and deposited in the Manchester Ship Canal close to Runcorn Bridge. Despite an extensive search for the body it has never been recovered. 3. Burns and Brierley both renew their application for permission to appeal against conviction and Burns also renews his application for permission to appeal against sentence after refusal of those applications by the Single Judge. 4. Three matters are raised on conviction: firstly, it is said by both applicants that the judge was wrong to rule that hearsay statements made by Callaghan to a number of people after the killing were admissible as against them; secondly, it is said by Brierley alone that the judge was wrong to exclude evidence of threats allegedly made against him during the course of the trial itself; and thirdly, we have to consider an application by both applicants to admit fresh evidence, relating to the recent finding of money in the loft of what was Morson's home at the time of his death. 5. The prosecution case was that there were a number of links between Burns, Brierley and Morson. Morson worked for Burns and had invested a large amount of money in his business, 1 Security; Burns and Brierley were also involved in drugs, specifically the substantial production of cannabis at Church Lodge. It was common ground that the house had been used for that purpose for some period of time and that Brierley lived in a caravan at the bottom of the garden. 6. The prosecution said that Morson was lured to Church Lodge by the applicants and then tortured to death for the combination of his safe, which disappeared from the home he shared with his girlfriend later that day; alternatively there was a sudden outburst of violence over a drug debt and all three men participated in the killing. The motive for the murder was, at least in part, financial gain. 7. All three defendants, particularly the applicants, were in financial difficulties, but all had money to spend or access to relatively large amounts of cash immediately afterwards. It was said Callaghan agreed to dispose of the van for £12,000 to make it look as though Morson had disappeared and then did so. 8. There were no independent eyewitnesses to the incident that led to Morson's death. The prosecution therefore sought to rely on the hearsay evidence, including multiple hearsay evidence of what Callaghan had said about the killing to a number of different people to whom he spoke, between 8 June 2011 and the end of 2011. It was agreed between the parties that the evidence was admissible against Callaghan and that the judge should rule, at the close of the evidence, on its admissibility as against the applicants. 9. The hearsay evidence came from five witnesses: Sophie Cowen, Callaghan's girlfriend at the time, Diane Hurley, with whom he had a brief relationship shortly afterwards, Angela Fitzsimmons, who was a friend of Diane Hurley, Anthony Callaghan, who was Callaghan's uncle, and a Police Constable Brufell. The judge ruled that except for multiple hearsay evidence, given by Angela Fitzsimmons, Diane Hurley, Anthony Callaghan and Police Constable Brufell, the evidence was admissible, that is the prosecution were permitted to rely on the hearsay evidence as against the applicants. 10. We have heard argument on the issue today from trial counsel: Mr Wright QC for Burns, supported by Mr Coffey QC for Brierley and from Mr Harris for the Crown. Mr Wright submits the judge was wrong to permit the hearsay evidence to be considered by the jury as part of the evidence against the applicants. It is not suggested, as we understand it, that the judge misdirected himself as to the law, or that he failed to follow the structured approach to the admission of hearsay evidence identified by this court in R v Riat and Others [2013] 1 Cr App R 2 . Further, the directions given to the jury on the hearsay issue were agreed with counsel in advance. However, he says the judge failed to give sufficient weight to the relevant factors identified in section 114(2) of the Criminal Justice Act 2003 , and in the result his decision was out with the range of reasonable decisions and/or not one that the judge could sensibly have made. It was not in the interests of justice, as the judge found, for this evidence to be admitted. 11. Mr Harris submits that the judge applied his mind correctly to the legal issues which arose. His decision was not "marred with legal error" (see Sefton ) and the directions were sculptured to meet the particular factual requirements of this case. 12. We have considered those arguments, the judge's ruling and what are said to be the unusual features of this case, that is, in particular, the exculpatory nature of the statements made by Callaghan, their contradictory aspects in certain respects, as they are said to be, and the prosecution's reliance on part only of those statements as being true. We have also considered a number of authorities, to which our attention has been drawn. These are in chronological order: R v Taylor [2006] EWCA (Crim) 260 , R v McLean and Others [2008] 1 Cr App R 11 , R v Y [2008] 1 Cr App R 34 , R v Z [2009] 1 Cr App R 34 , R v Thakrar [2010] EWCA (Crim) 1505 , Sefton , and Riat . Having done so, we have come to the view that the matters raised by this application on this ground merit full argument on appeal and accordingly we give leave on this first ground. 13. We turn then to the second ground. Brierley's case at trial was this. He had not met Morson until minutes before he killed him; he knew nothing of a cannabis business until a few months before June 2011 believing he had let his house to a respectable tenant; he was only prepared to tolerate that business in the belief that it was going to be removed. Brierley told Morson to remove the plants. Morson then attacked him and he killed Morson in lawful self-defence. Burns then told Brierley that Morson was a well-known and high profile criminal. Brierley had not told the police about the killing, had lied in various witness statements and interviews, had disposed of the body in the dead of the night the day after the killing, with the assistance of two unnamed men, out of fear of retribution. 14. Towards the end of the trial the prison service decided to move Brierley to a different prison because of apparent fears for his personal safety. Counsel for Brierley sought to adduce this evidence to support Brierley's explanation for his actions following the killing. The judge refused to allow that evidence to be adduced. He said that even if these matters were genuine they occurred some 18 months after the killing and were not so closely related either in time, or to the people said to be behind the contemporaneous threats, so as to be relevant. 15. Mr Coffey submits, albeit briefly, that the judge's ruling was wrong. He says that even though the source of the threat was not known his evidence should have been admitted as it was capable of adding substance to the evidence already given of Brierley's fears. 16. We do not agree and refuse leave on this ground. The issue for the jury to which this evidence was said to be relevant was Brierley's state of mind on 8 June 2011 and during the period when he tried to cover up the death. According to Brierley, as we have said, the source of information about this was Burns. Evidence on that topic was conceded to be admissible and indeed was admitted. The evidence the judge excluded did not fall into this category. A tenuous hearsay threat made at the end of the trial, 18 months after the killing, was not relevant to Brierley's state of mind at any material time, nor could it logically lend substance to his explanation. It could not possibly satisfy the criteria for admissibility in section 114(2) of the Criminal Justice Act 2003 , nor, in the circumstances, would it have been in the interests of justice to admit it applying section 114(1)(d) . In any event, it was rightly excluded, in our view, as irrelevant. 17. The third matter we have to deal with on conviction is the application to adduce fresh evidence. In view of the conclusion we have reached on the first ground, we refer the issue to the full court. We also refer Burns' renewed application for permission to appeal against sentence to the full court as well. 18. LADY JUSTICE SHARP: Mr Harris, Mr Wright and Mr Coffey, it will be necessary, it seems to us, for us to give certain directions in order to progress the appeal and to give the full court some further assistance. We have in mind, first of all, transcripts of the evidence of the witnesses in question, that is the five witnesses I have mentioned. 19. MR HARRIS: I think in connection with the ground that has been referred to the full court the court would be assisted by transcripts of Faye Lacey's evidence and Dale Conway. 20. LADY JUSTICE SHARP: As well? 21. MR HARRIS: Yes, in addition. 22. LADY JUSTICE SHARP: Very well, we will so direct. Secondly, it seem us to us that the Crown and the appellants should separately produce skeleton arguments starting from scratch. There are a number of skeleton arguments which are before the court at the moment, but we think it would be of assistance to the court if the skeleton arguments now to be produced focus on only the ground upon which permission has been given, and expand in any way that is material on that ground. 23. MR WRIGHT QC: Yes, my Lady. A skeleton that would incorporate the fresh evidence point also. 24. LADY JUSTICE SHARP: Yes. We do not think that it should be done by simply putting the current skeletons together, because, certainly speaking for myself, they could be produced in a more helpful form. 25. MR JUSTICE SILBER: You will have the transcripts as well. 26. MR WRIGHT QC: Certainly. My Lady, Just on the topic of transcripts (forgive me for interrupting) bearing in mind the nature of the ambit of the ruling made by the learned judge at trial, which was of course post the evidence that was given by Callaghan, may we invite you to consider that it is appropriate that there be a transcript of Callaghan's evidence also? By that route we can demonstrate what account he gave on oath, as opposed to the accounts in the out-of-court hearsay statements. 27. LADY JUSTICE SHARP: Yes, very well. We will also direct that although the transcripts, as we have said, are going to be produced for the full court, the parties should produce an agreed summary of the evidence of each witness from whom the transcripts have been directed. That is just for the hearsay witnesses, not for Callaghan or Lacey. 28. MR WRIGHT QC: Just the hearsay witnesses, certainly. 29. LADY JUSTICE SHARP: What about the time for producing the skeleton arguments and the order in which they are to be produced? 30. MR JUSTICE SILBER: Should the appellant produce it first to say exactly how their case is now going to be put, so the respondent then knows what the background -- 31. MR WRIGHT QC: Certainly, upon receipt of the transcripts, then I would hope to be able to produce a skeleton within three weeks of receipt of the transcripts in this case. 32. LADY JUSTICE SHARP: The Crown produce one -- 33. MR HARRIS: Twenty one days thereafter, please, my Lady. 34. LADY JUSTICE SHARP: Are there any other directions that need to be given? 35. MR WRIGHT QC: My Lady, so far as today is concerned for the applicant, as he then was, there was no representation order in existence for today's proceedings for today's purposes. May I invite you to consider granting such a representation order for today, for a representation order for the appeal and the preparation of the appeal? For today's purposes may I invite you to consider granting that representation order for leading counsel? There are documents that have been drafted in the case, as you will see from the material before you, by Mr Nolan prior to today's hearing. It is a matter for the court as to whether there is therefore granted a representation order in respect of this application for leading and junior counsel. May I invite you to consider, having regard to now the directions as to the consideration of the material in this case, whether it is appropriate on the appeal for there to be a representation order for leading and junior counsel, or for leading counsel only? 36. MR HARRIS: My Lady, perhaps this does not concern the prosecution, but in fairness it was our intention to have Queens Counsel and junior here today and it will be for the substantive hearing. 37. MR COFFEY QC: May I say I am in precisely the same position as my learned friend, Mr Wright. 38. LADY JUSTICE SHARP: I had assumed that Mr Wright was speaking on your behalf. 39. MR COFFEY QC: I always assume that Mr Wright is speaking on my behalf. 40. LADY JUSTICE SHARP: We are going to rise for a moment. ( Adjourned ) 41. LADY JUSTICE SHARP: There will be a representation order for those who have appeared today, a representation order for leading and junior counsel for the hearing of the appeal. 42. MR WRIGHT QC: Thank you, my Lady. 43. LADY JUSTICE SHARP: So far as the time estimate is concerned, it seems to us that the hearing of the appeal will take a day. 44. MR WRIGHT QC: No more than that, but a day, yes. 45. LADY JUSTICE SHARP: Mr Harris? 46. MR HARRIS: I certainly agree, yes. I do not know whether your Ladyship proposes to, or whether it is considered we ought to, try and fix a date now? No, I see my Lady shake her head. I will sit down. Thank you. 47. LADY JUSTICE SHARP: Is there anything else? 48. MR WRIGHT QC: No.

2014_03_06-3372.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/595/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/595

fafd8bb44c6790c9190d662c794d5b8d2d626be430fed500a8dbddd323c90e6f

[2003] EWCA Crim 2922

EWCA_Crim_2922

2003-10-21

crown_court

Case No: 03/4568/A2 Neutral Citation Number: [2003] EWCA Crim 2922 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Tuesday 21 October 2003 B E F O R E: LORD JUSTICE LATHAM MRS JUSTICE HALLETT and SIR EDWIN JOWITT - - - - - - - R E G I N A -v- ABDULLAH AL-BUHAIRI - - - - - - - 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

Case No: 03/4568/A2 Neutral Citation Number: [2003] EWCA Crim 2922 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Tuesday 21 October 2003 B E F O R E: LORD JUSTICE LATHAM MRS JUSTICE HALLETT and SIR EDWIN JOWITT - - - - - - - R E G I N A -v- ABDULLAH AL-BUHAIRI - - - - - - - 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 FRANCIS GILBERT appeared on behalf of the APPELLANT - - - - - - - J U D G M E N T 1. MRS JUSTICE HALLETT: On 17th July 2003 at the Sheffield Crown Court before His Honour Judge Moore the appellant, Abdullah Al-Buhairi, aged 36, was convicted of an offence of conspiracy to handle stolen goods. His Honour Judge Moore sentenced him to eighteen months' imprisonment. He appeals against sentence by leave of the single judge. 2. A co-accused who appeared with him called Otmani pleaded guilty on rearraignment to the same offence. He also faced a count of forgery. He received a sentence of two years' imprisonment in all. 3. The background to the offence is as follows. The conspiracy involved the theft of Mercedes motorcars. These were initially hired in continental Europe during the years 2001 and 2002. They were not returned to the owners. They were brought to the United Kingdom, where they were given new identities and numberplates. The co-accused Otmani then sold the cars to this appellant, who is a Saudi Arabian national. He was arrested at his home in Sheffield on 17th September 2002. On his driveway was a car which had been hired and then stolen in France just a few days before, on 9th September. 4. The appellant could be directly linked to four cars. The first was exported by him to Saudi Arabia in November 2001. The second and third cars were en route to Saudi Arabia when he was arrested. They were recovered. The fourth was the car we have already mentioned found in the appellant's driveway. A fifth car was shown to the appellant but no sale had taken place by the time of arrest. 5. The recovered cars had fraudulent French log books which showed the appellant as the owner and gave his address as a residence in Paris where he had never lived. They bore false registration numbers. The three recovered cars were valued at around £56,000. The appellant had paid £38,000 for them. This money was not recovered. The first car and the fifth car, which were not bought by the appellant, were together valued at £43,500. 6. In interview the appellant claimed that the cars had been purchased in good faith for himself, his brother and people that he knew. He said that he did not think there was anything strange about the system of changing the numberplates or of exporting the vehicles. 7. As far as the appellant's background is concerned, he was a captain in the Saudi Arabian army, a non-combatant officer practising as a dentist. He was in Sheffield on secondment to the university there to gain a masters degree. Evidence was put before the sentencing judge and put before this court to indicate his positive good character. 8. In his written grounds of appeal Mr Gilbert, on behalf of the appellant, submitted that insufficient account had been taken of the following features of the case. Firstly, the offence was non-violent, non-sexual and non-frightening. Secondly, the learned judge accepted that the appellant was not a major player in the organisation behind the offence, and Mr Gilbert argued he therefore took advantage of, rather than help establish, this sophisticated conspiracy. It was also said that the appellant had lost many thousands of pounds, his good character and his standing in Saudi Arabia. Lastly, it was argued that as a foreign national the appellant would have to serve his sentence in a foreign prison miles from home and that he would also be liable to serve twice as long as an English national. This argument was based upon the home detention curfew scheme. Under the Criminal Justice Act 1991 section 34 A as amended, Mr Gilbert argued that, had the appellant been an English national, he would in all probability serve but four-and-a-half months of an eighteen month sentence. For the remaining 135 days he would be subject to an electronically monitored scheme. As a foreign national, Mr Gilbert submitted, this appellant could not easily be made the subject of tagging. Since his grounds of appeal were submitted the appellant has been notified that because he is eligible for deportation he will not be considered for the early release scheme. Therefore, Mr Gilbert argued, he is likely to serve twice as long as a UK national had a UK national been standing in the dock next to him and been sentenced to the same term. For that reason, if for no other, Mr Gilbert argued, the sentence should be reduced to reflect the fact that this appellant cannot benefit from these new arrangements. 9. We deal first of all with the appropriate length of sentence for an offence of this kind. This was a well-organised, professional car ringing conspiracy. High value motorcars were stolen, disguised and exported. This appellant was linked plainly on the evidence to at least four of those cars. The appellant deserves no credit for admitting his involvement in the conspiracy. Thus we are not persuaded that eighteen months' imprisonment in these circumstances can be described as manifestly excessive following a contested trial. In our judgment it is well within the range of sentences available to the learned judge for an offence of this kind. Arguably the learned judge has already discounted the sentence he imposed to reflect the personal circumstances of this appellant. 10. We ask ourselves, therefore, whether or not it is incumbent upon a sentencing judge to reduce what would otherwise be a perfectly proper sentence because he may or may not be eligible for early release under this new administrative procedure. We remind ourselves that release on home detention curfew is a matter for the discretion of the governor of the relevant prison. He or she is charged with the responsibility of assessing the circumstances of each case and of each prisoner and then coming to the decision as to whether or not to release. Plainly the governor must exercise that discretion rationally and reasonably. But it is not the case that necessarily all foreign nationals will be excluded from the scheme: it will depend upon their circumstances. There is no certainty as to the release of any particular prisoner, whatever their nationality. The governor is obliged to carry out a risk assessment and decide whether or not it is likely the prisoner will complete the period of curfew successfully. 11. Having considered all those matters we are satisfied that this is far too speculative an area and basis upon which this court should direct sentencers to proceed. It would leave sentencing judges all over the country in an impossible position when asked to speculate as to when any particular accused person may or may not be released under this scheme. Accordingly we are not persuaded that this sentence is excessive. Similarly we are not persuaded that it would be appropriate in the circumstances of this case to make any allowance for the fact that this appellant will not benefit from this procedure. This appeal is accordingly dismissed.

2003_10_21-118.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/2922/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/2922

ff66fb1d368cf0dd84ab7eeb152b2e60710d2eac1b2d1bf1ac5d012443318157

[2006] EWCA Crim 3408

EWCA_Crim_3408

2006-12-21

crown_court

No: 200602061/B2 Neutral Citation Number: [2006] EWCA Crim 3408 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: THURSDAY, 21st December 2006 B E F O R E: LORD JUSTICE KEENE MRS JUSTICE COX DBE MR JUSTICE BEAN - - - - - - - R E G I N A -v- MICHAEL MURPHY 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

No: 200602061/B2 Neutral Citation Number: [2006] EWCA Crim 3408 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: THURSDAY, 21st December 2006 B E F O R E: LORD JUSTICE KEENE MRS JUSTICE COX DBE MR JUSTICE BEAN - - - - - - - R E G I N A -v- MICHAEL MURPHY 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 W SAUNDERS appeared on behalf of the APPELLANT MR C PURNELL appeared on behalf of the CROWN J U D G M E N T 1. LORD JUSTICE KEENE: On 23rd March 2006, in the Crown Court at Croydon, before His Honour Judge Tanzer, the appellant was convicted on three counts. Those were possession of a firearm with intent to cause fear of violence, contrary to section 16 A of the Firearms Act 1968 , and then counts 2 and 3, offences of criminal damage, contrary to section 1(1) of the Criminal Damage Act 1971 . He was sentenced to 5 years' imprisonment on each count, those on counts 2 and 3 to run concurrently with each other and with the sentence on count 1. In fact the sentences on counts 2 and 3 were unlawful because the value in question was less than £5,000, with the result that the maximum sentence available on each of those counts was 3 months' imprisonment. He now appeals against conviction by leave of the Single Judge on one ground and has given notice that he seeks to renew on another ground where leave to appeal against conviction was refused. 2. The charges arose out of events on the evening of 21st July 2004. There was no doubt that someone on that evening had discharged a gun, almost certainly a shotgun, at two cars belonging to Mr O'Riordan who ran a car workshop and car sales firm in South Norwood. The cars were damaged as a result. There was evidence of an earlier dispute between the appellant and Mr O'Riordan over a white Clio van which the former had bought from Mr O'Riordan. The appellant had complained about the brakes. 3. At about 9.45 pm on 21st July, Mr McAuliffe, the publican of a pub called the Two Brewers, located near to Mr O'Riordan's premises, heard two loud bangs outside and, when he opened the door, he saw a man standing by the alley holding a sawn-off shotgun. The man discharged a shot and then walked back past Mr McAuliffe. As he did so, he shouted out: "Tell that Irish cunt I'll be back." He described the man as slim, mid-thirties to forties and 5 feet 7 to 5 feet 8 and wearing a baseball cap. Mr McAuliffe said he was able to get a view of him. Indeed, subsequently Mr McAuliffe picked out the appellant 2 months later at an identification parade held on 21st September 2004. 4. A customer in the pub, Mr Russell, also went outside and saw a man with a shotgun. Mrs McAuliffe also saw a man outside but neither she nor Mr Russell identified the appellant at an identification parade. 5. The appellant gave evidence and denied that he was the person responsible for the shooting. He agreed that he was unhappy about the Clio van which he had bought, but said he was probably at home on the evening of 21st July. He also said that he had been into the Two Brewers pub at the time of buying the Clio. He also made allegations about having been effectively "fitted up" by the police. 6. The critical issue consequently was that of identification. But on the opening day of the trial the prosecution, having given the appropriate notice, sought to have put before the jury details of a previous conviction of the appellant. The application was made under section 101 of the Criminal Justice Act 2003 and referred to a conviction of the appellant, in June 1984, for possession of a firearm without a certificate, contrary to section 1(1) of the Firearms Act 1968 . There was little detail available at that stage of the trial about the circumstances of that offence, save that it took place on 28th March 1984 and that the appellant had been in possession of a single-barrelled shotgun, with the barrel shortened to less than 24 inches. 7. The judge ruled that that conviction was admissible under section 101(1) (d) of the 2003 Act , that is to say, he ruled that it passed through gateway (d) because it was "relevant to an important matter in issue between the defendant and the prosecution." The judge relied on section 103(1) and in particular paragraph (a) of that subsection. The relevant provision reads as follows: "For the purposes of section 101(1) (d) the matters in issue between the defendant and the prosecution include- (a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence." The judge referred in his ruling to this Court's decision in the case of R v Hanson [2005] 2 Cr App R(S) 21 and noted that it was a single conviction in the present case relied upon to show propensity. Nonetheless he concluded that possession of a sawn-off shotgun was something which could be seen as amounting to unusual behaviour in the sense in which those words were used in Hanson . He clearly had in mind the passage in that case where the court said, at paragraph 9, this: "There is no minimum number of events necessary to demonstrate such a propensity. The fewer the number of convictions the weaker is likely to be the evidence of propensity. A single previous conviction for an offence of the same description or category will often not show propensity. But it may do so where, for example, it shows a tendency to unusual behaviour or where its circumstances demonstrate probative force in relation to the offence charged (compare Director of Public Prosecutions v P (1991) 93 Cr App R(S) 267 at 279 [1991] 2 AC 447 at 460E to 461A). Child sexual abuse or fire setting are comparatively clear examples of such unusual behaviour but we attempt no exhaustive list. Circumstances demonstrating probative force are not confined to those sharing striking similarity. So, a single conviction for shoplifting, will not, without more, be admissible to show propensity to steal. But if the modus operandi has significant features shared by the offence charged it may show propensity." 8. The judge showed that he was aware of the age of the previous conviction in question but he weighed that against the fact that, in his experience, sawn-off shotguns were not that common. He applied his mind to the fairness of admitting this evidence, both under section 101(3) and under section 78 of Police and Criminal Evidence Act 1984 . He concluded that its probative value outweighed the prejudice and ruled that the evidence could properly be put before jury. 9. Other than the fact that the judge does not appear to have expressly addressed the question of whether propensity was an important matter in issue, the structure of his ruling is not open to any real criticism. He had regard to all the relevant statutory provisions as well as to the age of the previous conviction and the fact that it was a single conviction. 10. The challenge advanced on behalf of the appellant as to that ruling is relatively simple. First and foremost Mr Saunders submits that one conviction 20 years earlier of this kind could not properly be held to establish, in the circumstances of this case, a propensity to commit offences of the kind charged, in particular, the firearms offence under section 16 A. It is emphasised that this was a single conviction for a firearms offence, but while it was said in Hanson that propensity may be shown by a single conviction, that requires a "tendency to unusual behaviour". Mr Saunders contends that nothing here showed any similar modus operandi as between the 1984 offence and the firearms offence charged in 2004. He observes that all that the judge knew about the earlier offence was that the appellant had been in possession of a sawn-off shotgun, with no detail as to how he came to possess it and with no suggestion that it had been used, unlike the present alleged offence. 11. Reference is also made on behalf of the appellant to the passage in paragraph 11 of Hanson , where it was said that: "Old convictions, with no special features shared with the offence charged, are likely seriously to affect the fairness of proceedings adversely, unless, despite their age, it can properly be said that they show a continuing propensity." It is the reference there to "continuing propensity" upon which emphasis is laid by Mr Saunders. It is stressed that there was nothing here to show that there was any continuing propensity over the intervening 20 year period. The admission of this evidence, it is contended, may well have deeply influenced the jury in arriving at the verdicts which they reached. 12. For the Crown, Miss Purnell contends that the judge properly exercised his discretion. He had been entitled to regard possession of a sawn-off shotgun as sufficiently unusual to show a propensity. He approached the issue in the appropriate way, dealing also with fairness and giving proper directions to the jury. Miss Purnell emphasises what is said in the case of Hanson and other cases about the reluctance of this Court to intervene with decisions of trial judges on this particular issue. It is submitted on behalf of the prosecution that here the judge's decision was not plainly wrong. 13. It is also argued that the previous conviction in 1984 might have gone in at trial under gateway (g), once the defence proceeded to attack the police witnesses. On that basis also it is said the convictions cannot be regarded as unsafe. 14. We begin by observing that the task which the trial judge faces in dealing with an application under section 101(1) (d) is not solely a matter of exercising a discretion properly so described. The first stage of the task is more properly to be seen as an exercise of judgment, when the judge has to determine whether the defendant's bad character is relevant to an important issue between him and the Crown, in this case to whether he has a propensity to commit offences of the kind charged. Having said that, we accept that in making that judgment the trial judge is to be allowed a certain latitude. As indeed was said in Hanson itself at paragraph 15, if a judge has directed himself or herself correctly, this Court will be very slow to interfere with a ruling as to admissibility. That approach has since been endorsed in the case of R v Renda [2006] 1 Cr App R24. Indeed we are unaware of any reported case on propensity and gateway (d) where this Court has overturned the judge's ruling. 15. However, there may still be circumstances where a judge has patently erred. In Hanson , the Court made it clear that, if the judge's judgment as to the capacity of prior events to establish propensity is plainly wrong, then this Court will intervene (see paragraph 15). In effect, that is describing a situation where, on the facts, it was not properly open to trial judge to arrive at the conclusion which he reached. The question in the present case is whether the judge's ruling comes into that category. 16. As Mr Saunders' has stressed, it is the combination of only one previous conviction being relied to show propensity and the passage of time since that conviction which must cause concern. There may be cases where the factual circumstances of just one conviction, even as long ago as 20 years earlier, might be relevant to showing propensity, but we would expect such cases to be rare and to be ones where the earlier conviction showed some very special and distinctive feature, such as a predilection on the part of the defendant for a highly unusual form of sexual activity, or some arcane or highly specialised knowledge relevant to the present offence. In cases with less distinctive features in common, one would require some evidence of the propensity manifesting itself during the intervening period in order to render the earlier evidence admissible as evidence of a continuing propensity. 17. Had the conviction for possession of a sawn-off shotgun in the present case been more recent than 1984, then the judge's ruling would have been more understandable, depending of course on the length of the intervening period. There are no hard and fast rules applicable in this area of law. We also acknowledge the point made by the judge that sawn-off shotguns are not that commonplace, though regrettably they are in the experience of this Court not that rare either. As this Court said in R v Avis [1988] 1 Cr App R 420 , such firearms have no lawful use. But we find it impossible to accept that one isolated instance of possession of such a weapon, when this appellant was aged 28, is capable of establishing a propensity on his part to commit firearms offences when he was aged 48. It was simply too slender a basis upon which such a propensity could be founded. In our view, this is a case where the judge was plainly wrong in deciding that that previous conviction was so capable. This evidence, in our judgment, should not have been admitted. 18. It remains to consider the effect of admitting this evidence on the safety of the convictions. There was here evidence of motive, and from the witness, Mr McAuliffe, evidence that it was the appellant who was responsible for the shooting. That identification, however, was by a single witness, who estimated the gunman's age at one point as being between 35 and 40, appreciably younger than this appellant, and who said that the man in question was wearing a baseball cap on this late evening in July which cannot have assisted in the clarity of the identification. One simply cannot know how much effect the evidence of the appellant's previous conviction had on the jury's deliberations, but we cannot say that they were bound to have convicted irrespective of this evidence. 19. It is right, as Miss Purnell contends, that the 1984 conviction might have gone before the jury through gateway (g), once there had been an attack upon the character of the police witnesses, but the judge would have had to apply his mind to that, which he never did, and Mr Saunders argues, it seems to us with some merit, that the defence case might have been conducted in a different way, had the appellant's character not gone in at the outset of the trial under gateway (d) as it did. Moreover, we bear in mind that if it had gone in under that gateway (gateway (g)) rather than gateway (d), the directions given by the judge to the jury would have been different. In the circumstances of this case the judge specifically posed to the jury the question: "Did he [that is to say the appellant] have a propensity to have sawn-off shotguns?" That would not have been a question which would have been appropriate for the jury to consider in the circumstances, had this gone in under gateway (g), unless the judge had concluded that it was capable of showing a propensity which, as we have indicated, in our judgment it was not. 20. In all those circumstances, we have come to the conclusion that these convictions are unsafe and cannot stand. We do not need therefore to deal with the appellant's renewed ground of appeal. We would only say this, in case any guidance on it might assist in any future proceedings. We have read the transcript of the PII proceedings which took place in chambers. We can see nothing there which leads us to believe that this prosecution failed in its duty of disclosure. In any event, for the reasons we have indicated, we allow this appeal and we quash the appellant's convictions. 21. LORD JUSTICE KEENE: Now, Miss Purnell, what is the Crown's position on the issue of retrial? 22. MISS PURNELL: I understand that through discussion with my learned friend that there is a medical position with regard to this appellant and it is something that I would be interested to hear about. At the moment, I have no clear instructions whether there is to be a retrial or not. 23. LORD JUSTICE KEENE: Mr Saunders, can you help on this? 24. MR SAUNDERS: My Lord, yes, it is a long and involved situation. I can assist with a brief medical report. In a nutshell, he has had heart disease for some time and has had several heart attacks and had various operations. That is combined with a difficult form of diabetes. 25. The learned judge in his sentencing remarks said this, with regard to his medical condition: "I accept, because of your physical condition, you may die in custody." It is obviously that serious. It may be helpful if I read out this letter and may be if I can -- sorry I did not get a copy-- 26. LORD JUSTICE KEENE: What we would like to do in the first place is for you and the Crown to consult on this, because Miss Purnell and those instructing her have to make a decision as to whether they are applying for an order from this Court for a retrial. Whether we need to be given all the details may depend upon that. We are conscious that the appellant has been in prison now for, I think, nearly 9 months of a 5 year sentence. So, there is still quite a lot of that outstanding but that may be affected by the medical position. 27. We will rise for a couple of moments. If you simply let the Associate know when you are in a position to proceed, we will be within easy reach. (Short Adjournment) 28. LORD JUSTICE KEENE: Yes, Miss Purnell? 29. MISS PURNELL: I am most grateful for the time. I have had an opportunity to speak to those who instruct me. I have outlined the position with regard to Mr Murphy's medical situation. My instructions are to apply to the Court to invite the Court to order a retrial. 30. LORD JUSTICE KEENE: Yes. Right, thank you. Mr Saunders? 31. MR SAUNDERS: I resist the application in the particular circumstances of this case, particularly the defendant's medical situation but I invite the Court to bear in mind that these offences date back to 2004. My Lord, there has been quite some delay in bringing this case to trial because of his medical situation and, in my submission, it is going to be and extremely difficult period for Mr Murphy to have to go through, once again, the process of waiting for a trial, whether in custody or on bail, and at the end of the day, if there is conviction, then this will prolong the agony and indeed make the situation so far as the prospect of his dying in custody even more real. As I have said, the learned judge was quite clear having read the medical evidence that was a distinct possibility when he passed sentence. 32. Mr Murphy has, if I may read, complex physical health needs. This is May 05, but nothing has changed in effect. These include purely controlled diabetes mellitus, for which he is requiring close observation and monitoring of blood sugar as well as specialist input. In relation to that it has been extremely difficult for Mr Murphy to cope whilst in prison. After 5 months of a precarious situation he has now his own medicine in his cell but his diet in prison is simply wrong and the prison service, unfortunately, are unable to provide him with any sort of diet that is appropriate to his diabetes. 33. LORD JUSTICE KEENE: That is a matter surely where representations can be made on his behalf to the prison authorities. 34. MR SAUNDERS: There is ongoing, one can imagine, there is an ongoing correspondence between Mr Murphy and the prison authorities. He had a heart attack in June; that in fact happened in hospital but the process of getting him to hospital from the prison took a very long time and he had had a heart attack at that stage, rather than suffering pain in his chest. He undoubtedly would have died then. But that, so there is the combination of diabetes and he has a stent in his left ventricle in his heart and terrible cerebral vascular stent. In February 05 he had a stroke which left him with residual weakness in the right side. Unwell on the ward, it is said he suffered falls and he required continuous observation. To summarise, he is an unwell man who is currently being medically investigated, and that, as I say, is at 05. In anticipation of the sentence, there was a report prepared for 31st March 06, in which he says: "Thank you for your letter..." Mr Murphy, as you are aware, has had numerous medical problems. His GP notes extend over five envelopes. He suffers from long-standing insulin dependent diabetes mellitus, severe coronary heart disease from which he has had at least three heart attacks in the past and coronary artery bypass surgery. In February 2005 he had a stroke, leaving his right side of weakness. He also has, of course, a long history of illicit drug abuse, problems with alcohol drinking, and an hepatitis C infection. He should be under the care of St Helier diabetic department but he has failed to keep his latest appointments with them. I am not going to elaborate why that was, that obviously is on record. He should be under the care of the cardiologist at St Helier hospital. He has failed to keep the last two appointments. I understand he has been in Springfield for detoxification and so on. I enclosed a list of medication he is on. He needs ongoing review by cardiologist and dermatologists, which because of the severity of his disease should mainly be hospital based. He is at risk of further heart attacks and stroke and therefore infection. 35. All this basically goes to the question of: (i) should he await a further trial, should he go through a further trial process and, perhaps more strongly, were he to be convicted, is it right in the circumstances that he should face the prospect of going back to prison in view of the learned judge's last observations? Of course, your Lordships have a discretion, but one of the considerations in the balancing act obviously is the defendant's situation and I am sure your Lordships are well familiar with how to carry out that exercise. (The Bench Conferred) 36. LORD JUSTICE KEENE: I am afraid, Mr Saunders, we are not persuaded by your advocacy on this issue. We take the view that this particular firearms offence was a serious offence and that it is in the public interest that your client should be retried. We will therefore specify that the appellant is to be retried on the same three counts which we have quashed his convictions on today. We direct a fresh indictment be preferred and that he be re-arraigned on that indictment within 2 months. He ought to have a representation order, of course, solicitor and counsel for the retrial. 37. We will not specify venue beyond saying that the venue is to be determined by the presiding judge for the southeastern circuit. What about between now and trial? 38. MR SAUNDERS: My Lord, he was on bail and attended during the trial. 39. LORD JUSTICE KEENE: Conditional bail, I imagine, of some sort. 40. MR SAUNDERS: It was conditional bail. He has an address to go to which is the address he was on bail at before, 184 Repton Road, in Orpington. 41. LORD JUSTICE KEENE: R-E-P-T-O-N. 42. MR SAUNDERS: My Lord, yes. He can live there. If your Lordship required some sort of control over his movements... 43. LORD JUSTICE KEENE: Was there a reporting condition? Miss Purnell, do you have details of this? 44. MISS PURNELL: I am afraid I cannot assist. May be if I look through enough of the transcript but I have not the original brief unfortunately. 45. MR SAUNDERS: I can assist. 46. LORD JUSTICE KEENE: Miss Purnell, is there any objection to bail of this man on the same central conditions as before? 47. MISS PURNELL: No. 48. MR SAUNDERS: He was not well for a while. He certainly had a residence condition but there were other conditions as well. 49. LORD JUSTICE KEENE: We may have them in his antecedents, let me see. At one stage he was remanded on bail to live and sleep at a particular address, to observe curfew hours between 19.00 and 6.00 hours and to present himself at the door, on request of a police officer during that time; not to contact any of the prosecution witnesses, some of whom were named; not to enter or come within one mile of Gloucester Road, South Norwood. At that time he had an address in Sutton, a guest house. No doubt that has changed subsequently. 50. MR SAUNDERS: My Lord, in principle if those are the conditions that the Court are thinking, of course, I will not disagree with them. The curfew, as I understand it, was from 7.00 pm. 51. LORD JUSTICE KEENE: 19.00 hours to 6.00 am. 52. MR SAUNDERS: May I suggest 9 o'clock. 53. LORD JUSTICE KEENE: Do you want to say anything about that, Miss Purnell? 54. MISS PURNELL: No, thank you. 55. MR SAUNDERS: I am sure Mr Murphy has heard what those proposed conditions are. 56. LORD JUSTICE KEENE: I will run through them again for the Associate. We will grant bail until the trial, on condition, first of all, that the appellant live and sleep at 184 Repton Road, Orpington. We will make an exception to that if he has to go into hospital at any stage. There will be a curfew condition to observe curfew hours between 21.00 hours and 06.00 hours and to present himself, on request, to a police officer during these hours. A condition not to contact directly or indirectly any prosecution witness, especially Mr O'Riordan or Mr McAuliffe or Mr Russell and the same conditions as before: not to enter or come within 1 mile of Gloucester Road, South Norwood. You are not asking, Miss Purnell, for reporting to a police station? 57. MISS PURNELL: Not in the circumstances, thank you. 58. LORD JUSTICE KEENE: You understand those conditions, do you, Mr Murphy? You know full well that if you break them that itself will be an offence. Do we need reporting restrictions pending retrial, Mr Saunders? 59. MR SAUNDERS: This case was widely reported in the local press at the time. 60. LORD JUSTICE KEENE: I cannot think that our judgment is going to get anything like the same coverage. 61. MR SAUNDERS: The Croydon Advertiser goes far and wide. 62. LORD JUSTICE KEENE: I meant in terms of column inches. The trial would have been much more interesting to readers of any local or national newspaper than the judgment of this Court on section 101(1) (d). 63. MR SAUNDERS: I do not think it is necessary. 64. LORD JUSTICE KEENE: I would have not thought so myself. Miss Purnell, are you content with that? 65. MISS PURNELL: I would not have thought so. 66. LORD JUSTICE KEENE: We do not seek to impose any reporting restrictions.

2006_12_21-999.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/3408/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/3408

e19dbf9a680e1f01f8fcb054a664b6cc49eba1a23796d3414feb56c85e23e170

[2023] EWCA Crim 453

EWCA_Crim_453

2023-04-04

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2023] EWCA Crim 453 No. 202300517 A1 Royal Courts of Justice Tuesday, 4 April 2023 Before: LORD JUSTICE WILLIAM DAVIS MRS JUSTICE COCKERILL MR JUSTICE JOHNSON A REFERENCE BY HIS MAJESTY’S SOLICITOR GENERAL UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 REX V THOMAS TIMPSON REPORTING RESTRICTIONS APPLY: Sexual Offences Amendment Act 1992 __________ 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 HOLT appeared on behalf of the HM Solicitor General. MR G PURCELL appeared on behalf of the Respondent. _________ J U D G M E N T ( Transcript prepared without access to documentation ) LORD JUSTICE WILLIAM DAVIS: 1 The provisions of the Sexual Offences Amendment Act 1992 apply to the offences with which we are concerned. Under these provisions where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as a victim of that offence. The prohibition applies unless waived or lifted in accordance with section 3 of the Act. Introduction . 2 On 20 January 2023 in the Crown Court at Nottingham, Thomas Timpson was convicted of six offences of sexual activity with a child contrary to section 9 of the Sexual Offences Act 2003: one offence of sexual communication with a child, contrary to section 15(a) of the Sexual Offences Act 2003, and one offence of causing or inciting a child to engage in sexual activity, contrary to section 10 of the Sexual Offences Act 2003 3 On the same day he was sentenced as follows: Counts 1 and 2, sexual activity with a child, two years' imprisonment; Count 3, sexual activity with a child, three years' imprisonment; Counts 4, 5 and 6, sexual activity with a child – the counts being multiple incident counts – three years' imprisonment; Count 7, sexual communication with a child, no separate penalty; Count 9, causing or inciting a child to engage in sexual activity, two years' imprisonment. All those sentences were ordered to run concurrently, the total sentence was three years' imprisonment. Ancillary orders were made with which we are not concerned. 4 His Majesty's Solicitor General now applies to refer the sentence to this court pursuant to section 36 of the Criminal Justice Act 1988. He argues that the sentence was unduly lenient. The Factual Background . 5 The offender is 36. He was born in September 1986. In 2018 he had a partner who worked at a riding stable. At that time the female victim, to whom we shall refer as "LB", began to work at weekends at the stable. She was then coming up to her 14 th birthday. Her date of birth was 2 April 2004. LB and the offender's partner became friends. As a result of that friendship the offender got to know LB. He had a horse at the stable, LB would exercise his horse. 6 During the course of 2019 the offender spent more and more time with LB. He was a regular visitor to her home address. Although he had a partner he began a sexual relationship with LB's mother. LB knew nothing of this. Notwithstanding the sexual relationship the offender was having with LB's mother, he also engaged in sexual grooming of LB. For instance, in August 2019 he took her shopping and bought her a set of lingerie. She was aged 15½ at the time. On 1 September 2019 LB went to a festival with the offender and his partner. Whilst they were at the festival the offender kissed LB for the first time. The relationship between the offender and LB soon went further. 7 Later in September 2019, when LB was with the offender, ostensibly helping him to prepare a motor cross course, they first had sexual intercourse. Following that, the offender and LB, until about April 2020, engaged in sexual activity on numerous occasions and at various locations. The activity included both vaginal and oral sex by reference to the multiple incident counts, the indictment represented nine occasions on which vaginal intercourse took place, and three incidents of oral sex involving the penetration of LB's mouth with the offender's penis. It also reflected three incidents of the penetration of LB's vagina with the offender's tongue. 8 The grooming of LB by the offender continued over this period. He bought her clothing. He paid for beauty treatments. He deposited cash into her bank account. They socialised in public houses where the offender bought alcohol for LB. The offender sent messages to LB, including pictures of his penis. He asked her to send him naked pictures of her. In April 2020, LB's mother told LB that she had been having a sexual relationship with the offender. This caused serious friction between LB and her mother. At that stage the mother was unaware of LB's relationship with the offender. 9 On 2 May 2020 she found a note in LB's bedroom which said: "Love you millions. Can't wait to spend the rest of my life with you." She also found a letter in LB's handwriting clearly intended to be sent to the offender. It concluded with the words: ". . . can't wait for more sex. I'm so addicted to you." When LB was confronted by her mother she said: "I know we cannot be together but I love him." The relationship between mother and daughter broke down completely at this point. LB went to stay with her grandparents. She was advised by her father to contact the police. She did so but when the police first spoke to her she denied any sexual contact with the offender. However, she had resiled from this position by 12 May 2020. On that day she telephoned her mother and admitted she had been having sex with the offender over a period of some months. 10 She was interviewed by the police in ABE interviews in May and June 2020, at which point she gave a full account of her relationship with the offender. She explained that she had been groomed by the offender with the result that she had become infatuated with him. The offender was arrested on 13 May 2020. When interviewed he said that he had done nothing wrong and that he was innocent. Other than that, he made no comment to all questions. 11 The offender was charged on 8 November 2020. His first appearance in the Magistrates' Court was on 14 January 2021, when he was sent for trial at the Crown Court. Two trial dates were fixed and then vacated, one in September 2021 and one in June 2022. The September trial date was vacated because there was a lack of Judges. The June trial date was vacated because of the lack of a courtroom. The offender's defence at trial, in January 2023, was that he had had sexual intercourse with LB on one occasion in 2020 by which time she was 16. Other than that, he had not had any kind of relationship with her. LB had been flirtatious with him but he had not responded. His case was that LB's account was malicious fabrication. Material Before the Judge . 12 LB made a lengthy victim personal statement in which the dominant theme was fear of encountering the offender again. She said that she was scared to be on her own. She had difficulty sleeping because she would dream that he was looking through the window at her at which she would wake up frightened. She suffered flashbacks of what had happened between her and the offender. She was nervous and anxious at all times. She was constantly on edge. She had had some therapy sessions and was due to have more because she could not cope with the anxiety. Her family were contemplating moving away from the area so that the offender would not know where she lived. 13 The offender had two convictions for which he had been fined. Neither conviction was of any relevance to sentence in this case. Two character references in relation to the offender were provided to the judge, one from a previous manager of the stable, and one from a local farmer. Both spoke highly of the offender's work ethic, and his helpful attitude. The Sentence . 14 In the course of mitigation Mr Purcell, who represented the offender at the trial and who has appeared on his behalf before us, made two submissions to which we need to refer. First, he argued that LB's age and her ostensible consent reduced the seriousness of the offences considerably. He relied on the fact that the offence of sexual activity with a child under 16 will cover all ages from 13 to 15. LB was towards the upper end of that range. Second, he said that there had been delay which was no fault of the defendant. 15 In sentencing the judge said that initially there had been a friendship between LB and the offender via their interest in horses. That friendship had been corrupted by the offender and he had taken advantage of her sexually. LB was infatuated with the offender. He took advantage of the infatuation of an immature teenager. A fully penetrative sexual relationship had developed with sexual activity occurring on multiple occasions as indicated by the jury's verdict on the multiple incident counts. 16 The judge considered the Sentencing Council Guideline in relation to the most serious offences of sexual activity with a child, namely the penetrative sexual activity reflected in Counts 3 to 6. In relation to those offences harm was in Category 1. The judge found that there were high culpability factors, namely grooming behaviour and a significant disparity in age. A Category 1A offence had a starting point of five years' custody, with a category range of four to ten years. The judge observed that the offending was repeated over a period of five or six months and said that: "The starting point, in a sense, is inadequate to reflect the scale and duration" of the offending. However, the judge went on to say that the age of LB reduced the seriousness of the offending. In consequence he concluded that the appropriate starting point, allowing also for the offender's good character, was four years' custody. He then applied a reduction of 25 per cent to take account of delay. He said that there had been an unreasonable period between the first complaint in May 2020, and the trial in January 2023. He concluded that the delay: "had impacted upon the offender's Article 8 rights" under the Convention. By that route the judge arrived at the total sentence of three years' imprisonment. The Submissions Before Us . 17 The Solicitor General accepts the structuring of the sentence by the judge, whereby he imposed what he considered to be the appropriate overall sentence on each of the counts of sexual activity with a child was unexceptionable. His submission is that the judge fell into error in two respects. First, the starting point of four years' custody before the reduction for delay was overly favourable to the offender. If an adjustment for the age of LB was appropriate, this had to be balanced against the raised culpability factors and the repeated offending. Rather than moving down the category range the starting point should have been higher than five years' custody. Second, it is said that whilst there was a significant delay a reduction of 25 per cent was excessive. It failed to take into account the continuing impact of offending on LB. 18 On behalf of the offender, Mr Purcell repeated the submissions he made to the judge in the Crown Court. He argues that the judge was entitled to take the approach he did. He invites us to give proper weight to the fact that the judge who imposed the sentence was the judge who had heard the trial. In oral submissions, he made the particular point in relation to the grooming of LB by the offender. He argued that the grooming in this case was not as bad as online grooming and could not be described as predatory behaviour. Discussion . 19 We remind ourselves of what was said by Lord Lane LCJ in Attorney General's Reference (No 4 of 1989) 1991 WLR 41, when section 36 of the 1980 Act was in its infancy: "A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the Judge, applying his mind to all the relevant factors, could reasonably consider appropriate. In that connection regard must, of course, be had to reported cases, and in particular to the guidance given by this court from time to time in so-called guideline cases. However, it must always be remembered that sentencing is an art rather than a science, that the trial Judge is particularly well placed to assess the weight to be given to various competing considerations, and that leniency in itself is not advice." Those principles hold good today, save, of course, a sentence now must be considered by reference to the relevant Sentencing Council Guidelines. In short, we have to ask whether the term of imprisonment imposed by this judge fell outside the range reasonably open to him. 20 Notwithstanding the fact that the sentencing judge was the trial judge, a factor to which considerable weight always must be attached, we are satisfied that the sentence in this case was unduly lenient. First, the judge implicitly acknowledged that the starting point of five years' custody was insufficient to reflect the repeated offending over months. He was right to do so. The guideline is intended to reflect a single offence, yet that factor was effectively ignored. There should have been an uplift from the starting point of five years' custody to reflect the multiple offences. As we have said, the Solicitor General does not criticise the way the judge structured the sentence. Nor do we. But when concurrent sentences are passed in relation to more than one offence the principles set out in the Sentencing Council Totality Guideline must be observed: "Where concurrent sentences are to be passed the sentence should reflect the overall criminality involved. The sentence should be appropriately aggravated by the presence of the associated offences." The starting point of four years' custody, which was the basis upon which the sentence was calculated, wholly failed to represent that overall criminality. 21 Moreover, the proposition that, in the circumstances of this case, the age of LB was a factor which served to reduce the starting point at the bottom of the category range was misconceived. As the judge found, LB was an immature teenager. The offence under section 9 of the 2003 Act is intended to protect girls like her from predatory sexual offenders. If she had been 13 or 14 when the sexual relationship began, that might well have been a basis to move the sentencing up the category range. In the particular circumstances of this case, LB's age provided no basis for moving the starting point to the bottom of the category range. The harm and culpability factors placed the offences squarely into Category A in the guideline, the multiple offending required a movement up the category range from the starting point. No other conclusion was reasonable on the facts of the case. The least uplift appropriate in the circumstances would have been 12 months i.e. a sentence of 6 years’ custody. 22 Secondly, the judge erred by reducing the sentence by 12 months (or 25 per cent) due to the delay. It was wrong to say, as Mr Purcell submitted to the judge, that the delay was no fault of the defendant. In February 2021 he appeared at the Crown Court, he was arraigned. Had he pleaded guilty he would have been sentenced shortly thereafter. Of course, he was entitled to have his trial and he was not to be penalised for that. Equally, he was not entitled to a benefit by reason of him contesting the case. As Mr Holt, on behalf of the Solicitor General, pointed out in the course of the hearing, suppose the offender had pleaded guilty at the PTPH. He would have had a reduction of his sentence for his plea of guilty of 25 per cent. In this case, the offender contested the case, yet his sentence was reduced as if he had pleaded guilty at a relatively early stage. It cannot be said that the delay before his trial was nothing to do with him. A trial was only necessary because he contested the case. In those circumstances, we consider that the delay would have to be wholly out of the ordinary for any reduction at all to be applied. 23 The situation here was wholly different to the situation which is all too common in criminal proceedings. Offences are committed, they are reported promptly to the police who investigate them with reasonable expedition. The investigation concludes with evidence available to justify charging of the offender. Then, many months, sometimes years, pass before the offender is charged. That type of delay often will result in some reduction in the eventual sentence, particularly in cases where the offender pleads guilty. We observe that the reduction would be most unlikely to be as great as 25 per cent, particularly where the offences were serious, but some reduction would follow. In this case, the offences were reported to the police in May 2020, the offender was charged in November 2020, he made his first appearance in the Crown Court in January 2021. That chronology does not reveal any significant delay, rather it is the progress to be reasonably expected in a case of this kind. 24 The judge referred to Article 6. Article 6 provides a criminal defendant with a right to a trial within a reasonable time. There are two aspects to this right which are of relevance to this case. First, the conduct of the defendant is relevant to the reasonableness of any delay. Second, where the courts are faced with some unusual or exceptional circumstances, which create a significant backlog, the backlog leading to delays, there will be no interference at all with the defendant's Article 6 rights, so long as the courts take remedial action insofar as they can. 25 We have already dealt with the conduct of the defendant. As to the backlog, there was undoubtedly a significant backlog in Crown Courts generally in 2021 and 2022. Up to June of 2022 it was predominantly due to the effects of the pandemic. During 2020 and the first half of 2021, the ability of any Crown Court to try cases was dramatically reduced. When the position improved after the middle of 2021, the courts were faced with a backlog of cases dating back to the beginning of the lockdown in March 2020. The Judiciary and HMCTS engaged in a recovery programme in which priority had to be given to older cases, cases involving offenders in custody and young offenders. The problem was exacerbated by the fact that those who might have sat as fee paid judges to deal with the backlog were unable to do so because they were committed to cases coming on for trial as part of the recovery programme. In addition, the number of courtrooms in many crown courts was reduced due to precautions required as a result of the pandemic. 26 The history of the proceedings in this case was plainly unfortunate. However, it was the consequence of extraordinary circumstances in respect of which the courts took such remedial action as they could. With great respect to the judge, it was not helpful to refer to Article 6 without any consideration of domestic or ECHR authority. It is clear to us that there was no actionable interference with the offender's Article 6 rights. Given the overall circumstances, the delay in trying the offender was not unreasonable. There was no proper basis for any reduction in the offender's sentence by reason of delay. Conclusion . 27 We give leave to refer the sentence imposed on the offender on 20 January 2023. We are satisfied that the overall sentence was unduly lenient. We shall quash the concurrent sentences of three years' imprisonment imposed on Counts 3 to 6 on the indictment. We substitute in their place concurrent sentences of six years' imprisonment on each of those counts. The other sentences will remain unaltered. It follows that the total sentence now will be six years' imprisonment. __________

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https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/453

9c3af196caa27851c6dfc7008036a6292a54372dbf3999a981a78eda46b75740

[2023] EWCA Crim 698

EWCA_Crim_698

2023-05-23

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2023] EWCA Crim 698 No. 202202534 B2 Royal Courts of Justice Tuesday, 23 May 2023 Before: LORD JUSTICE WARBY MR JUSTICE HILLIARD HIS HONOUR JUDGE FLEWITT KC REX V RICHARD KWABENA ASUBONTENG 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] _________ JUDGMENT LORD JUSTICE WARBY: 1 This case is one to which the provisions of the Sexual Offences (Amendment) Act 1992 applies. Their effect is that no matter relating to the child we shall mention shall, during her lifetime, be included in any publication if it is likely to lead members of the public to identify her as the person against whom any of the offences was allegedly committed. This prohibition applies unless waived or lifted in accordance with section 3 of the Act . 2 Richard Asubonteng renews his application for an extension of time of 455 days in which to apply for leave to appeal against conviction following refusal by the single judge. 3 On 19 April 2021, in the Crown Court at Kingston upon Thames, the applicant was convicted by a jury on 10 counts of sexual offending against a child. There was one count of assault by penetration, contrary to section 2 of the Sexual Offences Act 2003 ; six counts of sexual assault, contrary to section 3 ; one of causing a person to engage in sexual activity without consent, contrary to section 4; and two of sexual activity with a child, contrary to section 9. The applicant was sentenced to a total of six years and six months' imprisonment. 4 The case concerned the sexual abuse of a girl whom we shall call C1. The applicant met C1's mother and became a friend. This included the mother inviting the applicant to the family home and introducing him to her partner and to C1. It was common ground that he was a family friend. 5 The prosecution case was that the applicant had breached the trust put in him by way of sexual activities with C1 which began with kissing and became progressively more serious over a period of four years, between 2016 and 2019, when C1 would have been between 13 and 17 years old. 6 The prosecution case relied on the ABE interview given by C1 in 2019 and supporting evidence from her mother, a cousin and a friend, together with a photograph and a recording of telephone conversations between C1 and the applicant. C1 was cross-examined before the trial and a video recording of the cross-examination was before the jury. 7 The defence case was that the alleged events never happened. The applicant denied the offending in interview and in his defence statement and gave evidence before the jury to the same effect. 8 The issue for the jury in relation to each count was whether they were sure that the alleged offence had occurred. 9 The delay in lodging the notice of appeal amounts to the best part of 18 months. We have considered the applicant's explanation for that delay which is, in essence, difficulties of the English language. Noting that the trial judge directed the jury to bear in mind that English is not the applicant's first language, we accept the broad proposition but we are unable to accept that it provides a sufficient ground for delay of this magnitude. We would, in any event, have refused leave to appeal on the merits, to which we now turn. 10 The applicant's grounds are not easy to disentangle, but we have been assisted by the helpful representations of the prosecution in a respondent's notice and the information provided by the applicant's counsel in response to some of the grounds, following waiver of privilege by the applicant. 11 Reviewing the notice of appeal and other later documents in the light of those observations, we have identified six individual grounds of appeal with which we can deal in turn in chronological order. 12 First, the applicant complains that there was a procedural irregularity due to a "change of judge" between the recording of the cross-examination and trial. This, however, is a commonplace occurrence. As Criminal Practice Direction V, Rule 18E.63 makes clear, this procedure is proper, and nor is there any arguable case that this has any effect on the safety of the applicant's conviction. 13 Secondly, the applicant contends that the judge erred in refusing a bad character application. The applicant had wished to cross-examine C1 about stealing from Primark in Tooting and in Croydon on 29 June 2017. She had no convictions but there were some apparent admissions within her school record. The application was dealt with and refused before the trial. It is not entirely clear quite what the applicant's intended criticism is. But having read the judge's ruling and reviewed the prosecution's response, we find ourselves in agreement with the single judge's observations that: "The judge was entitled to refuse your application to adduce evidence of 'bad character' of the complainant, namely evidence relating to two incidents of shoplifting in 2017, on the grounds that the conditions for its admissibility were not met." 14 The third written ground of appeal is that a picture from "the mother's phone" was allowed to be put before the jury. We believe this must relate to a photo which C1 emailed to the police, which was said to be one she had taken, showing the applicant in his boxer shorts while taking a Facetime call. That evidence was plainly admissible and properly admitted. It was introduced fairly, put to the applicant and dealt with by him, and the judge summed up the incident fairly to the jury. 15 Fourthly, the applicant complains that his barrister "blocked him" from calling witnesses. The complaint relates to the applicant's wife and another witness by the name of Joseph. We are satisfied there is nothing in this point. In short, there were extensive pre-trial discussions about defence evidence, and the applicant was given reasonable legal advice on which he relied. He has no ground of complaint in this court. In any case, far from anyone preventing the applicant's wife from giving evidence, it was never suggested by the applicant that she might have relevant evidence to give, nor has he, even now, identified any way that she could have materially assisted his case. We see no reason to suppose that she could have done so. It was common ground that she was present in the house on the occasion of one of the offences, but there was no suggestion or indication that she would have said anything or could have said anything to show that the offence did not take place. 16 As to Joseph, the suggestion is that he could have helped to show when the applicant arrived in the United Kingdom and met C1’s mother. But the applicant did not produce any proof of evidence for this witness, nor has he done so now, or offered any explanation of how the witness could have helped. The applicant's own evidence that he arrived in 2015 is refuted by documentary evidence that definitively demonstrated his entrance to the United Kingdom in 2014, as he accepted when confronted by the document in the course of his evidence. 17 The fifth ground of appeal is that the judge's summing-up was "wrong". The applicant says here that he was convicted "at a time when he was not in the UK". As we understand the applicant's representations, he challenges some of the evidence about things he is said to have done in 2012 and 2013, maintaining that he was not in the country at the time and did not go to the family home at that time. That, however, underlines the defence which he attempted to substantiate at trial but which was rejected by the jury. We see no arguable merit in the applicant's criticisms of the way the judge summed up on these aspects of the evidence. 18 Sixth, and finally, it is said that the trial was not fair and was in breach of the applicant's Article 6 rights. This, on analysis, is nothing more than another way of putting the effect of the points with which we have dealt already. There is nothing in addition to support this ground of challenge to the applicant's conviction. 19 For all these reasons we are satisfied that there are no arguable grounds for doubting the safety of this conviction, and hence no justification for extending the time. The renewed application is dismissed. __________

2023_05_23-5681.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/698/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/698

f0fe38f1dca821d90ca0895bf0f9ac9ac3ac5ddf4e0980687ce1b5a01db2425d

[2008] EWCA Crim 1059

EWCA_Crim_1059

2008-04-21

crown_court

Neutral Citation Number: [2008] EWCA Crim 1059 No. 2008/00172/A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Monday 21 April 2008 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Phillips of Worth Matravers ) MR JUSTICE PITCHFORD and MRS JUSTICE DOBBS DBE - - - - - - - - - - - - - - R E G I N A - v - LUKE JAMES SHARP - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communica

Neutral Citation Number: [2008] EWCA Crim 1059 No. 2008/00172/A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Monday 21 April 2008 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Phillips of Worth Matravers ) MR JUSTICE PITCHFORD and MRS JUSTICE DOBBS DBE - - - - - - - - - - - - - - R E G I N A - v - LUKE JAMES SHARP - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - Mr R Frieze appeared on behalf of the Appellant - - - - - - - - - - - - - - J U D G M E N T Monday 21 April 2008 THE LORD CHIEF JUSTICE: I will ask Mr Justice Pitchford to give the judgment of the court. MR JUSTICE PITCHFORD: 1. Luke Sharp was born on 7 July 1994. Four days before his 13th birthday he committed the offence of sexual assault on a female contrary to section 3 of the Sexual Offences Act 2003 . He admitted that offence at the Wakefield Youth Court on 5 December 2007 and was committed for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 , since the Youth Court believed that there required to be an assessment of the appellant's dangerousness in the Crown Court. 2. On 17 December 2007, in the Crown Court at Leeds, the appellant was sentenced by His Honour Judge Stewart QC to four years' detention in a young offender institution under section 91 of the Sentencing Act 2000. He now appeals against that sentence with the leave of the single judge. 3. Mrs Rosemary Pagett was aged 75. She lived alone in her bungalow in Wakefield. She suffered from a number of debilitating medical conditions. From time to time she needed to use a mechanical oxygen inhaler. Notwithstanding that she lived alone, Mrs Pagett had friendly neighbours who kept an eye on her and spent time with her. 4. During the afternoon of 3 July 2007 the appellant knocked on her door. That day was not a particularly good day for her. She was dressed only in her zip-up dressing gown. When she saw the appellant at her door, she mistook him for a grandson whom she had not seen for some time. She invited the appellant into her home. She offered him money. The appellant declined her offer but asked her what kind of underwear she was wearing. He proceeded to unzip her dressing gown and to touch her. He told her that he loved her and began to suck her breasts. He placed his hand on the inside of her thigh, near to but not against her genitalia. Mrs Pagett was able physically to prevent him going any further by closing her legs. The appellant told her that he wanted to come and live with her. He exposed his penis. This ordeal, as such it was for the victim, lasted for about 30 minutes before the appellant left her. 5. Not long afterwards Mrs Pagett was able to use her telephone to call for help. On arrival the neighbour found Mrs Pagett to be in a distressed state. The police were called. While they were waiting, Mrs Pagett explained to the neighbour what had happened to her. She then began to have difficulty with breathing and was taken to hospital. In hospital it was discovered that she had been suffering from an ulcer. That was unknown to her or her family before this day. It was on that day, 3 July, that she suffered a burst of the ulcer. She remained in hospital, but two days later she suffered a heart attack. On 13 July, ten days after the incident with which we are concerned, she died, having remained unconscious. 6. We have, as did the sentencing judge, a victim impact statement from the deceased's daughter. We entirely understand and sympathise with the belief of those dear to the deceased that the appellant, by his commission of the offence, set in train a sequence of physical events which led causatively to her death. We must, however, make it plain that the appellant was not, and could not on the evidence have been, charged with causing her death; still less could he be sentenced on the factual basis that he did cause it. 7. Having considered the available information, the sentencing judge concluded that he could not find that the appellant presented a significant risk of serious harm to the public. 8. In short but admirably focused submissions by Mr Frieze on the appellant's behalf, it is argued that a sentence of four years' detention for a boy of this young age, after an early acknowledgement of guilt, was manifestly excessive if not wrong in principle. Mr Frieze acknowledges that the circumstances of this offence do not fit easily into the guideline published by the Sentencing Guidelines Council on Sexual Offences. He submits that on a literal interpretation of the guideline the starting point for sexual touching of this kind should have been a community penalty. Nevertheless, Mr Frieze concedes that there were significant aggravating features of the offence. Having regard to the compelling personal mitigation available, it is submitted that the judge should have acceded to the recommendation of the Youth Offending Team that the appellant should be placed upon a structured supervision order for three years. 9. In examining those submissions, we shall first consider the seriousness of the offence by reference to the nature of the touching and the aggravating features of it. We have described the acts themselves. They were committed upon an elderly, vulnerable woman who, it was obvious to the appellant, had difficulty breathing and was quite unable to resist him in the initial stages of the assault. He took advantage of an unexpected and mistaken invitation into her home. The harm which the appellant did was manifested by the distress he caused. From the moment the ordeal ended Mrs Pagett was, as a matter of fact, in fatal physical decline. At the least the juxtaposition of the two events served to exacerbate the distress she experienced. 10. We turn to consider the appellant's culpability for the offence and the level of risk that he posed for the future. The appellant is the second eldest of four brothers. When he was aged about 3, his mother took up with a drug addict called Mark. Mark introduced her to drugs and she, too, became addicted to amphetamine and heroin. The home environment became almost indescribably bad. The children witnessed intravenous drug taking and overt sexual activity in proximity to their childhood domestic lives. The appellant and his older brother were neglected, physically abused and left largely to fend for themselves. In 2005, when the appellant was aged 9, he and his brothers were taken into care and placed with foster carers. Their younger brothers were returned to their mother in 2006 when, in response to the shock of losing the children and suffering hepatitis, she separated from Mark and ceased taking controlled drugs. By this stage serious damaged had been done to the relationship between the older boys and their mother. Their placement with foster carers was viewed positively. It was believed that the appellant and his brother were thriving (in comparative terms) in a more structured home environment. There were no significant concerns at school. Nevertheless, we agree with Mr Maguire, the author of the reports to the Youth Court, the Crown Court and this court, that the appellant's childhood experiences must have been emotionally damaging. 11. Since his arrest for this offence, contact has been renewed between the appellant and his mother and grandmother. The signs are, in general terms, encouraging. 12. The appellant told the police, when they made enquiries, that he had been playing a game by knocking on his victim's door. He agreed that he had entered her house, but denied any sexual contact. He told Mr Maguire that he had separated from his brother that afternoon and come across some older boys. He was given the task of knocking on the bungalow door as a "dare". Instead of running away, he remained at the door and entered when invited. He informed Mr Maguire that the offence was committed deliberately. He claimed that he needed to commit an offence of sufficient seriousness to achieve a change of his foster home in which he said that he had been unhappy for several months. He claimed that his thoughts had even encompassed committing a much more serious crime. 13. These claims caused Mr Maguire great reservations, with which we concur. In his report to the Youth Court Mr Maguire said this: "2.11 Luke's assertions, attitude and conduct during the interviews for the purpose of this report cause me major concern. He fails to show any genuine remorse for his actions and his expression of empathy for his victim comes only with prompts. .... What he offers, I would submit, is a 'script' concocted to justify his actions to himself and to offer him a degree of safety during the ensuing criminal investigations. ...." In his report prepared for the present appeal, Mr Maguire enlarged that opinion as follows: "4.9 It is my professional opinion through comprehensive assessment that there is no direct link between Luke's previous foster care placement and his offence. He maintains that the offence was a 'means to an end', planned months in advance with an emphasis on the type and seriousness of the incident in order to reach his favoured conclusion. I believe that it is far more likely to have been an example of deviant behaviour seeking sexual gratification that was exacerbated by pubescent urges, albeit from the distorted viewpoint of a young man who has witnessed extremely inappropriate sexual behaviour." 14. Mr Maguire advised the Youth Court and the Crown Court that the appellant represented a moderate risk for future offending, but possessed an unquantifiable but recognisable potential to cause serious harm in future. His view is encapsulated in paragraph 4.3 of his report to this court. In that paragraph Mr Maguire suggests that his behaviour is classic of that resulting from a young person who has been subject to significant rejection, dysfunction, neglect and chaos. The circumstances which might trigger a reaction include fear of rejection and times when his self-esteem might be under threat. He goes on: "He has entrenched coping behaviours that increase the likelihood of harmful reaction to stressful situations...." 15. It follows that the judge was faced with a particularly difficult sentencing assessment. On the one hand, the boy before him had committed a serious sexual assault for which his culpability was limited. On the other, by reason of his exposure to appalling life experiences, for which he could bear no personal responsibility, he possessed attributes which could, without being properly addressed, cause serious harm in the future. 16. In his reports Mr Maguire did his best to address the alternatives. He reached the conclusion that a return to the mainstream community was not a feasible option. What was required in his opinion was long-term and intensively-modelled supervision during which the appellant would live in a residential unit away from his home area at significant cost. Such an order would include the application of the Greater Manchester Adolescent Project Sexual Offending Programme. 17. Since the sentence of detention was imposed, the appellant has been in custody at a secure children's centre where he lives a properly structured working and learning day. He is required to engage in conventional offending behaviour work and, with the assistance of Mr Maguire, a programme of intervention intended to address the appellant's sexualized offending. We have, indeed, been provided with a report from Mr Gerry Miller, the Care Planning Officer, dated 18 April 2008, which assists the court with the appellant's current progress. We need only observe that the opinion expressed by Mr Maguire in his report is echoed and reinforced by Mr Miller in his. 18. We therefore move to the central question: whether, in the light of the information before the sentencing judge and that which has become available since sentence was passed, a sentence of four years' detention is wrong in principle or manifestly excessive. 19. In our judgment a sentence of four years' detention upon this child was manifestly excessive. We do not suggest that a custodial sentence upon a 13 year old boy would necessarily be wrong in principle for an offence of sexual assault. There was, however, before the sentencing judge information about this appellant which, in conjunction with his plea of guilty, mitigated the length of any custodial sentence very significantly. Having concluded that the appellant did not present a significant risk of serious harm, we do not consider that a sentence of this length could be merited. 20. The reports prepared by Mr Maguire were thoughtful, measured and painstakingly researched. We accept his opinion that the feature of this offence and this offender, which dominates the sentencing assessment, is the need effectively to address the appellant's potential for causing harm in the future. It will require close supervision in a structured environment such as that in Lincolnshire identified by Mr Maguire, together with long-term exposure to programmes designed to probe and remedy the appellant's sexual offending and to assist his development towards a conventional maturity. 21. The sentence of four years' detention will be quashed and substituted for it will be a supervision order for a period of three years containing the elements of treatment and programming referred to in Mr Maguire's report to this court at paragraph 5.3. 22. The appeal will succeed to that extent. 23. Registration and notification to the police will be for two-and-a-half years. Reporting restrictions were lifted in the lower court and we do not interfere with that.

2008_04_21-1467.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1059/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1059