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No: 2006/6155/C2
Neutral Citation Number: [2007] EWCA Crim 2174
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Friday, 21 September 2007
B e f o r e
:
LORD JUSTICE LAWS
MRS JUSTICE COX DBE
MR JUSTICE TUGENDHAT
R E G I N A
v
ANDREW CORDINGLEY
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr A Smith
appeared on behalf of the
Appellant
Miss S Smales
appeared on behalf of the
Crown
J U D G M E N T
(As Approved by the Court)
Crown copyright©
1. LORD JUSTICE LAWS: On 6th November 2006 before His Honour Judge Keen QC at the Sheffield Crown Court this appellant was convicted on 19 counts of handling stolen goods and one count of converting criminal property. He was sentenced to concurrent terms of three years' imprisonment. He now appeals against his conviction by leave of the full court, Dyson LJ, Pitchers J and His Honour Judge Rogers QC, who also referred the appellant's application for leave to appeal against sentence to the court.
2. Given the nature of the grounds of appeal, the facts of the case may properly be described in outline only. On 11th January 2006 police attended with a search warrant at premises which belonged to the appellant's father in Barnsley. They searched the premises and found over 600 car radios or cassettes or CD players, MP3 players and a laptop computer. Nineteen of those items proved to be stolen. In excess of £17,000 in cash was also found. The appellant stated that the money was his. The goods formed the subject matter of counts 1 to 19 and the cash count 20.
3. The prosecution case was that the appellant had bought the radios at a substantial undervalue from car thieves well knowing that they were stolen. They were mainly Ford radios and their replacement value new was over £400 each. It was the defence case that the appellant had indeed bought a number of radios from a man called Hanson whom he had met through another contact, Squires. None of the radios was thought by the appellant to have been stolen. He had in fact purchased them at a fair market price.
4. The man Hanson was a convicted radio car thief. He gave Crown evidence ‑‑ in fact the Crown had to apply to treat him as hostile, a course to which the judge acceded. No complaint is made about that. The appellant for his part gave evidence on his own behalf essentially to the effect that he bought and sold radios as a business and something of a hobby. The radios he bought from Hanson were of an old type which he was able to sell on ebay for £50 to £60. He had been assured by Hanson that the radios were not stolen. As to the £17,000, he said it was his money ‑‑ rather £3,000 of it belonged to his girlfriend. He always kept a lot of cash in the house.
5. There are in essence four grounds of appeal which may be summarised as follows:
1. The judge behaved oppressively towards defence counsel and the appellant and in consequence the appellant did not receive a fair trial.
2. The judge withdrew bail and remanded the appellant in custody peremptorily and without justification and this had a detrimental effect on the appellant's ability to put forward his defence.
3. The judge failed properly to put the defence case in his summing‑up to the jury.
4. The judge failed to give proper directions to the jury concerning the appellant's character.
6. We describe first the circumstances giving rise to the first ground of appeal. The case was transferred to His Honour Judge Keen at short notice. The appellant's complaints about the judge's behaviour start with exchanges between the judge and counsel when the case was called on but before the jury was sworn. The judge seems to have been very cross at the time estimate which had been given for the trial which was three days. The flavour may be gleaned from the transcript (volume 5 page 1E):
"MR SMITH: [Defence counsel who appears also before us] Well, we can start. We can swear a jury but it may be necessary for witnesses to look at these radios, I imagine.
THE JUDGE: Well, that may be so, but it doesn't stop the trial starting, does it?
MR SMITH: I suppose that is right.
THE JUDGE: How long is the trial going to take?
MR SMITH: It is listed for three days plus and I think that is a realistic time estimate.
THE JUDGE: Three days plus for handling a few radios?
MR SMITH: That's why it was listed ‑‑
THE JUDGE: Why will it take that long?
MR SMITH: The defendant has produced a number of radios himself that he bought on the auction trade site, eBay, but they are all complete with documentation and when he gives his evidence I anticipate he will wish to go through those.
THE JUDGE: Yes, well I won't allow him to. They can be reduced to schedule form so that will cut some time down. Why else will it take as long as three days?
MR SMITH: Well, that is the time estimate that I think it is going to take, your Honour.
THE JUDGE: Why?
MR SMITH: Because I have got experience of dealing with these sorts of cases and I think it is a realistic time estimate.
THE JUDGE: Mr Smith, almost as much as I have. Why three days..."
And so it went on.
7. Defence counsel's papers had been left in the other court and in the same transcript, so still before the jury were sworn, we find this passage at 3G:
"MR SMITH: Your Honour, I have not got my papers. They are in the other court.
THE JUDGE: Mr Smith, I am sorry. When were you told it was being moved?
MR SMITH: Well, I have not been told officially. A phone call came and we were told it might be coming into this court. Your Honour, I need my papers before we start the case, please.
THE JUDGE: Yes, of course. Your solicitors can get them for you. Jury in."
Then there was a short exchange with prosecuting counsel and thereafter:
"MR SMITH: Will your Honour please give me ten minutes to marshal my papers? I was here in very good time this morning, set myself out in the other court with ‑‑
THE JUDGE we are going to get the jury sworn. Your solicitors can get your papers for you.
MR SMITH: My solicitor is not even here. She is in the other court, I anticipate."
The judge said something inaudible to the transcriber and then Mr Smith said:
"I am trying to, your Honour. Would your Honour allow me some time, please?
THE JUDGE: No."
8. So the jury were sworn. Later on the first day, in the absence of the jury, the judge returned to the theme of the time estimate (volume 1 page 2A):
"THE JUDGE: But the case has had to be transferred because of the potential length of time it is going to take. A previous hearing was lost because of the length of time it was going to take. All it required was the Bar to actually think seriously about the case to realise this is a day and a half, a two day case, and in due course I am going to require an explanation because it has been such a waste of court time."
The judge proceeded to complain that uncontentious police evidence had not been reduced to admissions and then this followed (Vol 1 page 3A):
"MR SMITH: Would your Honour be prepared to hold the enquiry now with regard to what has gone wrong? We can concentrate on the case and ‑‑
THE JUDGE: No, I will do it at the end of the case to see what, if anything, has gone wrong.
MR SMITH: I would rather face up to it now. It unnerves me a little bit and I may not be able to put my whole attention on Mr Cordingley's case.
THE JUDGE: That is a very interesting submission which I think you ought to reflect on during the short adjournment."
These exchanges took place in the absence of the jury as we have indicated and we shall have to consider whether they have any bearing on the safety of the conviction. It is important to remember that though the jury were not in court the appellant was. This part of the case moreover needs to be considered alongside the complaint about withdrawal of the appellant's bail (ground 2).
9. The appellant had no previous convictions. He has a partner with a young child. He had been on bail for eight months before the trial. At the conclusion of the hearing on the first day, 1st November 2006, the judge, as we understand it without warning, said this:
"Well, I am not presently minded to give him bail. I will tell you why, so that you can deal with it. It has become apparent to me from the way the proceedings have so far gone that this defendant is beginning to realise for the first time the peril in which he stands in relation to the evidence and sentence. I presently take a view that there is a substantial danger that, having come to that realisation, he won't appear tomorrow."
Counsel protested but the judge adhered to his view and the argument concluded with these observations by the judge, addressed to the appellant himself (4B):
"Stand up, please. I have observed the history of this case and what has happened today. It leads me to the firm conclusion that it is only today, perhaps even this afternoon, that the true import of your position has come home to you. Despite your good character and personal circumstances, I take the view, looking at the matter in the round, there is a substantial danger you won't answer your bail and you are going to stay in custody now until the end of your trial."
It may be no coincidence that, as we understand it from counsel, the appellant having heard the earlier exchanges between the judge and the Bar had indicated to Mr Smith (his counsel) that the judge "had it in for him" and asked counsel to obtain an indication of some kind from the judge clearly contemplating for the first time the possibility of pleading guilty.
10. In considering both the ground relating to the judge's conduct and that relating to bail, which are themselves connected, it is necessary to have regard to certain events the next day, 2nd November 2006. In the morning before the jury were called into court this exchange took place:
"MR SMITH: Your Honour, the defendant's partner has brought some clean clothes for him today: A shirt, some underwear and some socks. The attitude of the custodian officers downstairs is that if your Honour directs that he be allowed to put the clean clothes on, then they will accept them and he can wear his clean clothes today as he would normally do.
THE JUDGE: Yes. Well, that can be done during the short adjournment.
MR SMITH: Your Honour, I made the application in good time. It is not nice that the defendant sit here in stale clothes from yesterday. He says ‑ and I put that observation ‑ that it is his basic human right to have clean clothes in the morning.
THE JUDGE: Thank you very much, Mr Smith. Jury in, please."
After exchanges about other matters the judge said this:
"What I will do, Mr Smith, is when the Crown close their case, that will be a convenient time for him to get changed."
11. We are told by counsel in his advice that the appellant was not given his change of clothes that day. The following day (day 3) he arrived at court in the same clothes as on the first day. He said he had not been allowed to shower or change. Mr Smith's express personal recollection is that the appellant broke down in tears in the witness box. He did not have a change of clothes until after giving evidence.
12. For reasons which we will explain in a moment we propose to allow this appeal against conviction. It is therefore unnecessary to go at any length into the grounds of appeal relating to the summing‑up as regards the defence case and the character direction. It is enough to say in relation to the defence case that an issue in the trial was whether the appellant had bought the radios at a substantial value or not. The complaint on this ground is that the judge effectively directed the jury to put aside the appellant's contention that he had bought all the items at a fair market price. As regards the character direction it is said (we summarise) that the judge watered down the good character direction to which the appellant was entitled.
13. We have been very greatly troubled about the judge's conduct in this case. We are bound to say we consider that the exchanges between the judge and counsel, especially on the first day, betray a rudeness and discourtesy of which the judge should be ashamed. His treatment of the issue about the appellant's change of clothes was brutal. His withdrawal of bail was at least questionable. The issue is whether these matters individually or cumulatively affect the safety of the conviction.
14. Miss Smales, who has addressed us for the Crown with great moderation, good sense and economy submits that in truth the effect of the evidence was untouched by these matters. There is nothing substantial from which we should infer that the defendant was in any way inhibited from making his case. Her recollection is he gave his evidence perfectly firmly.
15. The safety of a conviction does not merely depend upon the strength of the evidence that the jury hears. It depends also on the observance of due process. In this case it seems to us inescapable that the effect of the judge's conduct must have been to inhibit the defendant in the course of his defence. He clearly felt that the judge was prejudiced against him, as Mr Smith's recollection of his client's own words demonstrate. It may well be that what the judge had said in his presence (although in the absence of the jury) affected him so as to have adverse consequences for his credibility before the jury. But whether or not that is so, it is to be remembered that every defendant, and this is no more than elementary, is entitled to be tried fairly ‑ that is courteously and with due regard for the presumption of innocence. This appellant was not tried fairly. There was a failure of due process by reason of the judge's conduct. For that reason the appeal against conviction is allowed. In those circumstances the application relating to sentence falls away.
16. Are there any applications?
17. MISS SMALES: My Lord, I ask the court to consider whether to order a retrial. My Lords, I am aware that the defendant has served the majority of his sentence.
18. LORD JUSTICE LAWS: Give us the exact period, would you, Miss Smales?
19. MISS SMALES: My Lord, I think he is due for release on Monday. The outstanding matters upon which the conviction are important for the Crown are the significant confiscation proceedings which have been awaiting this hearing. They were listed to take place in the summer and awaited the outcome of your Lordships' hearing today. Your Lordship knows that there are significant sums of money and the Crown would be keen to be able to pursue those confiscation matters.
20. LORD JUSTICE LAWS: What sums are we talking about on the Crown's case? I appreciate that it may be highly contested.
21. MISS SMALES: My Lord, there are £17,500 that were seized.
22. LORD JUSTICE LAWS: You have that.
23. MISS SMALES: We have it at the moment but of course it would have to be returned and my Lord I understand that the investigation has turned up further monies. My Lord I do have an officer ‑‑ if your Lordship would excuse my back just briefly. My Lord, £40,000.
24. LORD JUSTICE LAWS: 40.
25. MISS SMALES: Yes, £40,000 which it is anticipated would be applied for. So it is for those reasons, I appreciate that the sentence itself in practical terms may be almost over, but if the conviction is not retried then those proceedings fall by the wayside.
26. LORD JUSTICE LAWS: Yes, I see. Mr Smith?
27. MR SMITH: The defendant has served all the punishment. Effectively he is to be released on Monday about a third of the way through the sentence.
28. LORD JUSTICE LAWS: That would ordinarily be the end of the matter but the point about the confiscation proceedings has some substance.
29. MR SMITH: Yes. It is not the largest amount of money.
30. LORD JUSTICE LAWS: No, it is £40,000 or may be if ‑‑ yes.
31. MR SMITH: The fact that he had £17,000 is irrefutable. The defendant always accepted that. The rest of the calculation depends upon valuation with regard to the radios.
32. LORD JUSTICE LAWS: Without confiscation proceedings or theoretically a civil suit, I suppose, the £17,000 would go back to your client.
33. MR SMITH: Yes. The Crown consider the civil powers that the police have to go before the Magistrates Court and pursue the money ‑‑
34. LORD JUSTICE LAWS: Under the Police Property Act, you mean.
35. MR SMITH: Or the Proceeds of Crime Act.
36. LORD JUSTICE LAWS: Yes. It shows how out of date I am. Yes.
37. MR SMITH: I am not an expert with regard to civil proceedings, I would not even claim to be an expert with regard to criminal proceedings and so far as the Process of Crime Act is concerned.
38. LORD JUSTICE LAWS: We could not ‑‑ if we did order a retrial we would not have power to direct that in the event of a conviction there be no penalty other than in relation to confiscation proceedings. It would be up to the discretion of the trial court, if he were convicted, though of course they would know about the course and outcome of the proceedings here. That is the way it would go.
39. MR SMITH: May I make this point with regard to ‑‑ I suppose this is a matter in due course which if he is convicted and if there are further Proceeds of Crime Act applications pursuant on any further conviction with regard to this issue and it was going to be something which I would have invited the court to consider with regard to sentence, I accept my Lords' observations with regard to the other two grounds of complaint with regard to summing‑up, but what I would have said with regard to sentence is that effectively the judge closed down significantly the amount of time that the defendant would have been guilty for, given the evidence that had been given with regard to what the jury may well have thought‑‑
40. LORD JUSTICE LAWS: I saw that in your grounds.
41. MR SMITH: ‑‑ were legitimate supplies of these radios and against that background in my respectful submission there are very likely to be matters which would mitigate against the amount of money the Crown are considering.
42. LORD JUSTICE LAWS: You may be right. I do not think we can really speculate. All right, if there is nothing else we will ‑‑ do you want to say any more?
43. MISS SMALES: My Lord, only this. I do submit there is force in the application particularly in the light of the evidence in this case, because I am very aware of your Lordships' judgment which was not particularly relating to the lack of evidence.
44. LORD JUSTICE LAWS: That is quite true.
45. MISS SMALES: I would ask‑‑
46. LORD JUSTICE LAWS: You say that if one is concerned with the evidence in the case it is an extremely strong case.
47. MISS SMALES: Indeed my Lords.
48. LORD JUSTICE LAWS: We will consider it.
(Short Adjournment)
49. LORD JUSTICE LAWS: Although this appellant has served nearly all of the prison sentence that was imposed by the judge, we intend to order a retrial because it is right that the defendant should face confiscation proceedings if, and obviously only if, he is convicted. The judge presiding over the fresh trial will plainly be aware of the course of the proceedings in this court and their results and equally obviously he will be aware of the fact that the appellant has already served much the greater part of the sentence originally passed. So we will order a retrial.
50. In those circumstances the procedure that we follow is that we allow the appeal and quash the convictions. We are to specify the counts which are quashed and those which he is to be retried on and it is the whole indictment, is it not, all 20 counts in both cases? We direct that a fresh indictment be preferred and that the appellant be re‑arraigned on the fresh indictment within two months. That is a requirement, as counsel will know, of the Criminal Appeal Act and my recollection is it is not extendable. Is he to be released on bail?
51. MR SMITH: Certainly my application on behalf of the appellant, although he will be released on Monday he will still be subject to the terms of the sentence, the release on Monday I understand is under the Home Detention Curfew.
52. LORD JUSTICE LAWS: We have quashed his conviction. He is entitled to be released now.
53. MR SMITH: Yes, I certainly ask for that.
54. LORD JUSTICE LAWS: The question now is whether he be bailed or not.
55. MR SMITH: I say that which I said to the learned judge in the lower court, this man was and remains a good bail risk. Perhaps the court could just ask that he keep contact with his ‑‑ rather than live and sleep at his home address, that he keep in contact with the home address lest any documentation is sent to him from the Sheffield Crown Court about the retrial.
56. LORD JUSTICE LAWS: Let us see what Miss Smales says about bail. Have you any objection to bail?
57. MISS SMALES: My Lord the only objection in the past have been to do with reoffending initially and that was held not to be appropriate because he was released and then latterly it was fear of the custodial sentence. My Lord I am very aware that he has almost served the sentence for the offences. I do not think I could object strongly or properly to bail in those circumstances.
58. LORD JUSTICE LAWS: Then he will be released ‑‑ he is entitled to be released in principle because his conviction is quashed but he will be released on bail pending his rearraignment on the new indictment. You are content that there be a condition that he live at whatever his home address is, Mr Smith, are you?
59. MISS SMALES: My Lord, if he resides at that address my Lord I am tempted to ask for some form of reporting condition, but again I appreciate he has served most of his sentence. My Lord I am only concerned he may still fear the confiscation hearing.
60. LORD JUSTICE LAWS: He may.
61. MISS SMALES: There was some suggestion in the evidence ‑‑
62. LORD JUSTICE LAWS: We are inclined to think that it is by no means an excessive hardship that he should report to whatever is the local police station once a week.
63. MISS SMALES: I am obliged. I think there is some mention in the evidence that there is property abroad, his parents own it, and it would assist the Crown to know he is still in this country and reporting regularly.
64. LORD JUSTICE LAWS: He is to live at whatever is the home address. The address will have to be given to the prosecution, no doubt they know it already, and also handed in to the court here. He is to report to whatever is the nearest police station once a week. We will specify a day and time, but is any particular day and time more convenient so far as you know, Mr Smith, than any other?
65. MR SMITH: No. The local police station is Barnsley Police Station.
66. LORD JUSTICE LAWS: Shall we say the middle of the week, Wednesday evening between 6pm and 9pm at Barnsley Police Station.
67. MR SMITH: Thank you my Lord.
68. LORD JUSTICE LAWS: My Lady is saying, and with respect this is obviously good sense, there should be liberty to apply to defence or prosecution to the Crown Court at Sheffield to vary any of these conditions should that become appropriate or of course if anything happens that justifies it to apply for bail to be revoked. I am not suggesting it will.
69. MR SMITH: My Lord, one further application by the defence, given the grounds of the appeal and the judgment of the court, can I ask for a direction that the retrial not be listed before His Honour Judge Keen.
70. LORD JUSTICE LAWS: Yes, we will give the direction. We should also make representation orders for the retrial. Solicitor and one counsel?
71. MR SMITH: Thank you.
72. LORD JUSTICE LAWS: The usual practice is to direct that the venue for the retrial be determined by the Presiding Judge for the circuit. We will make that direction but no doubt everyone anticipates it will be at the Sheffield Crown Court, although in front of a different judge.
73. MR SMITH: Thank you, my Lord.
74. LORD JUSTICE LAWS: Anything else?
(The Registrar mention reporting restrictions)
75. LORD JUSTICE LAWS: I do not think we need any reporting restrictions in this case. There is nothing in what we have said that would prejudice a retrial. It is all about the previous judge's conduct.