EWCA Crim 348
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Thursday 29 January 2009
Lord Justice Toulson
MR Justice Bean and
His Honour Judge Paget QC
(Sitting as a Judge of the Court of Appeal Criminal Division)
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 N Ham appeared on behalf of the Appellant
Mr S Thomas appeared on behalf of the Crown
(As Approved by the Court )
Thursday 29 January 2009
LORD JUSTICE TOULSON :
- On 26 November 2007, at Cambridge Crown Court, before His Honour Judge Hawkesworth and a jury, the appellant was convicted of blackmail (count 1) and of doing acts tending and intended to pervert the course of public justice (count 2). He appeals against conviction by leave of the single judge, who granted leave on a single ground. That ground relates to the number and nature of the judge’s interventions in the course of the evidence of the appellant.
- The case was a curious one. The victims of the blackmail were Mr and Mrs Goodman, who were the next door neighbours of the appellant and his family. The appellant lived at 70 Ravensden Road, Renhold, Bedford, and Mr and Mrs Goodman lived at 74 Ravensden Road.
- On 7 February 2007, at around 5pm, there was an apparent burglary at the appellant’s address. The relevance of this will become apparent later.
- On Saturday 3 March 2007 a letter was delivered to the Goodmans’ home. It demanded £15,000 in cash to be paid on the following Tuesday and it contained threats to the Goodman family’s safety. Mr Goodman immediately delivered the letter to the police. The police put in place arrangements to catch the blackmailer.
- On Monday 5 March 2007, at around 1.25pm, the appellant made a telephone call to the Goodmans from a public call box in Bedford. He sought to enforce the blackmail letter.
- On Wednesday 7 March 2007, the appellant made two further calls to Mr Goodman from public telephone boxes giving instructions about when, where and how to deliver the money. CCTV evidence showed him making the first call and exiting the telephone box after the second call. The calls were also recorded.
- A drop took place in accordance with arrangements made between the appellant and Mr Goodman under the monitoring of the police. Mr Goodman arrived at some shops in Church Lane, Bedford, at about 7.15pm with a carrier bag containing a bundle made to look as if it had £15,000 in used notes, which had been prepared by the police. CCTV evidence showed the appellant arriving at the pick-up point a few minutes earlier and waiting there. He was later seen to emerge from the rear of the Church Lane shops with a Tesco carrier bag containing the bundle. At that point the police moved in. The appellant ran off. He was caught and arrested. The bundle was retrieved.
- He was interviewed on more than one occasion. We will return to what he said to the police on interview.
- He was charged with blackmail and released on bail by the magistrates on Friday 9 March 2007 with a condition of residence at his mother’s house in Aylesbury.
- The second count in the indictment arose out of an incident on 9 April 2007. The appellant’s car was set on fire. He claimed that he had been kidnapped and assaulted. Thepolice investigated the matter and in due course the charge was brought against him that this was a fabrication.
- The defence which the appellant mounted at trial was elaborate and complex. On his account the story began with him deciding that as a way of raising income he would subscribe to a betting relay service provided by Isiris and would then provide the information obtained from that service to customers of his own for a much cheaper price. The idea proved a disaster because he was only able to find one person who wished to take up the proposal, so he ended up by having to pay the subscription for the Isiris service with no significant return on his investment.
- However, the appellant said that in early 2007 he received a letter from a supposed assignee of Isiris to the effect that the appellant had cheated Isiris, who had suffered losses which they estimated at £10,000. In chasing that debt the assignees wanted to make their own profit element and therefore demanded £15,000 from the appellant. They issued threats to the safety of the appellant’s family. He did not bring this to the attention of the police.
- Shortly after that, the burglary at the appellant’s home occurred. At the time he thought that the events were unconnected, but he later came to realise that the burglary had been carried out as a “softening up” measure by those responsible for the blackmail. In the interim, between the receipt of the demand letter and the burglary, he had received an unwelcome visit from a respectably dressed, well-spoken gentleman, who had indicated that the sum demanded had to be paid and that if it was not there would follow a demonstration of their power. The appellant later realised that the burglary was the demonstration.
- After the burglary the appellant received a further unwelcome visit this time from three man. They barged their way in, subjected him to some violence and made demands for payment, which involved proposing that he should blackmail Mr and Mrs Goodman into providing the money.
- A curious twist to the story was that in the apparent burglary the items stolen were said to include a gold necklace which belonged to the appellant’s wife. She subsequently found that necklace in a Wendy house at their home. The suggestion made by the appellant was that it had been put there on the occasion of the gangsters’ visit to which we have just referred in order (as the appellant subsequently supposed) to provide incriminating evidence against him if and when the police were to come to his property to try to track down the stolen effects.
- It was the appellant’s evidence that he then carried out the blackmail of the Goodmans under the threats from this gang who were referred to at the trial as East Europeans.
- The appellant’s account of the kidnap was that the gang maintained their interest in him and that on the day of the alleged kidnap one of the three East Europeans hijacked his car and forced him to drive out into the country. The appellant was subjected to threats and violence. At one stage the gangster produced the necklace which had gone missing in the burglary. By this time the appellant was thoroughly bemused as to what the gangster was trying to do. As a result of the violence to which he was subjected on that occasion he suffered lacerations. The incident ended with the gangster pouring an accelerant on the back seat of the car and setting fire to it.
The appellant became very distressed. He entered a fugue-like state and was taken to Stoke Manderville Hospital. The police arrived with a tracker dog, but no trace of the attacker was found.
- The prosecution’s case was that this was an entirely fabricated event in order to try to add some credibility to the appellant’s story of duress.
- There were some further twists to the tale. The necklace was sent to the Goodmans under cover of a letter written in capital letters. There were also further demand letters sent to the Goodmans. The appellant denied having anything to do with that. It was his case that all this showed the lengths to which the gang of extortionists was prepared to go.
- The prosecution’s case at trial was that the original burglary was in all probability itself a put-up job in order to mount a false insurance claim, but there was no charge in the indictment to that effect. The prosecution suggested that the entire story about the blackmail gang was false from start to finish and that it had been added to and had taken shape as the case developed in order to meet gaps in the story, but the overall effect of its embellishing was to underline its unbelievability.
- In that context we return briefly to the appellant’s interviews. It was a notable fact that in his first and second interviews he denied having anything to do with the telephone calls made to the Goodmans. He only admitted to being responsible for them when he was made aware of the CCTV evidence which effectively proved beyond doubt that he had made the calls. His explanation for not having mentioned them in the first place was that he had not wanted to put himself in the position where he would have had to tell his wife about his gambling activities. He made no mention of the arrangement with Isiris which had provided the starting point for his entire account until he came to give his evidence in-chief. This story took quite some time for the appellant to tell in his evidence and it provided ample material for cross-examination.
- That is the background to the complaint which we have to consider. The appellant was in the witness box for three days. We have read the transcript of his evidence which runs to 406 pages. There were a large number of judicial interventions. A good number of them were in order to clarify the appellant’s answers on various points and no criticism is or could be made of those. However, there was much questioning that did not fall into that category.
- There are a number of authorities on the question of what is acceptable by way of judicial intervention in the course of a defendant’s evidence. The leading authority is R v Hulusi and Purvis (1974) 58 Cr App R 378 , in which Lawton LJ cited, at page 382, the words of Lord Parker CJ in the previously unreported case of R v Hamilton . He said:
“Of course it has been recognised always that it is wrong for a judge to descend into the arena and give the impression of acting as advocate. Not only is it wrong but very often a judge can do more harm than leaving it to experienced counsel. Whether his interventions in any case give ground for quashing a conviction is not only a matter of degree, but depends to what the interventions are directed and what their effect may be. Interventions to clearup 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 three-fold: 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 justice and telling the story in his own way.”
- Subsequent authorities have provided illustrations of the application of this approach, but they do not change the principles. We should, however, refer to one of them. In R v Matthews and Matthews (1984) 78 Cr App R 23 Purchas LJ summarised the ultimate question for the court in this way, at page 32:
“…. In analysing the overall effect of the interventions, quantity and quality cannot be considered in isolation but will react the one upon the other; but the question which is posed ultimately for this court is: ‘Might the case for the defendant as presented to the jury over the trial as a whole, including the adducing and testing of evidence, the submissions of counsel and the summing-up of the judge, be such that the jury’s verdict might be unsafe?’”
We add that if the court is driven to the conclusion that the defendant has not had a fair trial, when the matter is looked at in the round, the natural conclusion will be that the verdict is unsafe because our system of criminal justice is dependent upon the fundamental principle of the provision of a fair trial. To allow an appeal in such circumstances, even though the evidence for the prosecution may have been exceedingly strong, is not to allow an appeal on a technicality, but to allow it upon a fundamental principle which underlines our criminal justice system.
- We therefore turn to assess the nature and effect of the judge’s interventions in this case. It cannot be done by a simple statistical approach. It is not suggested that the appellant was thrown off course by the judge’s interventions so as to be unable to put his case across to the jury. What is suggested is that the judge fell foul of the first principle in Hamilton , as applied in Hulusi , namely that the judge must avoid intervening in such a way as to cause prejudice which cannot be undone by using the formula in the summing-up that the facts are entirely for the jury.
- There is no doubt that in this case the judge asked a large number of questions which were of the nature of hostile cross-examination. On repeated occasions throughout the three days in which the appellant was in the witness box he asked questions which were frankly designed not to elucidate the appellant’s evidence but to discredit it.
- Mr Thomas, who has presented the case for the prosecution, fairly and realistically accepted that the nature and number of interventions was regrettable; but he submits that, when one stands back and looks at the case as a whole, the appellant had a fair trial and the convictions were safe. He has pointed out the strength of the case for the prosecution. He has pointed out that the questions put by the judge were largely questions which prosecuting counsel had either put, or intended to put and that the appellant was able to advance his answers to those questions in the same way as he could have done if they had been put in cross-examination by prosecuting counsel. It was also submitted by Mr Thomas that the questions to which exception might be taken were largely confined to interventions in the appellant’s cross-examination.
- From our study of the transcript we disagree with the last submission. There were repeated occasions in the course of the appellant’s evidence in-chief where the judge came in with hostile cross-examination. Mr Ham has referred us to a number of examples. It will suffice to cite a couple. At page 50 of the transcript the appellant was giving evidence about the visit after the burglary, but before the blackmail, by a man seeking to enforce the claimed £15,000 debt. The judge intervened in this way:
“JUDGE HAWKESWORTH: Again, I mean, you presumably had items round the house, and you had a BMW parked outside, which would easily have satisfied the £15,000 debt. I mean, why did you not say: ‘Well go on then, take the silver, take the—or take the BMW, and take this, that and the other’?
THE DEFENDANT: Well, they had already taken …. what, £9,000 worth of my valuables.
JUDGE HAWKESWORTH: Yes.
THE DEFENDANT: £500 worth of cash was part of the claim, but you know they had taken £2,000 worth of—
JUDGE HAWKESWORTH: But you still had three thousand of that left because in fact, as it turned out, they had only taken two thousand.
THE DEFENDANT: Of what, sorry?
JUDGE HAWKESWORTH: Did you not still have three thousand left?
THE DEFENDANT: Yes, that’s right.
JUDGE HAWKESWORTH: And you had the BMW.
THE DEFENDANT: Yes.
JUDGE HAWKESWORTH: And that was a good start. Now, did you suggest to them that perhaps they might take the BMW, to stop any further unpleasantries?
THE DEFENDANT: Again, I didn’t actually owe them money, and how do I explain to my wife etc that …. ‘By the way, I’ve just given away my BMW’?”
This questioning was in the context that the appellant was trying to give his account of what had happened. The judge was interrupting to suggest that the appellant ought to have given into the blackmailer’s demands and paid the £15,000, albeit, as the appellant protested, he did not owe any money. The underlying nature of the questioning was to cast doubt on the whole story.
- Later in the appellant’s evidence in-chief this exchange occurred:
“JUDGE HAWKESWORTH: Wait a minute. Before—I mean, did you once again consider the possibility of going to the police?”
This was a point about which the judge questioned the appellant on a number of different occasions. On this occasion he continued:
“JUDGE HAWKESWORTH: Now you are really stuck in a forked stick. You could not tell your wife. You were being forced to ring up some people who, in your own mind, you thought would not pay out any money, so the whole thing was a futile exercise. Why not go ahead, at that moment, and get in touch with the police and say: ‘Look, I’ll make the call while you’re here’?
THE DEFENDANT: Because there are already now four people. The chances of the police actually apprehending all of the people in this gang were low, and they had quite clearly said that the police cannot protect you.
JUDGE HAWKESWORTH: Yes, but you are an obviously intelligent man, you knew perfectly well, presumably, at that time that the police could provide surveillance, they could provide panic buttons, they could provide people to watch over yourfamily.
THE DEFENDANT: The problem was that my family was also up in Sheffield.
JUDGE HAWKESWORTH: Yes. But you made no attempt to contact the police?”
And so it continued.
- Mr Ham submitted that much of this questioning was done in a manner which suggested incredulity and was also repetitious. For example, the judge came back to the question that the appellant ought to have negotiated with his own blackmailers. At page 187 (in cross-examination) the appellant had made the point that he did not owe anybody any money and was not therefore willing to pay the extortionists. The judge intervened in the following way:
“JUDGE HAWKESWORTH: How about good old-fashioned diplomacy? I mean, you obviously [do not] want your wife to know about this, and there was a chance that people would come on knocking at your door next week, the week after. How about saying, ‘No look ….’, sitting him down, giving him a cup of tea, and saying: ‘Now, look here, I take the view I don’t owe this money. Why can’t we talk about this in a rational way, and you go back to Isiris and you find out how this debt has come about’?
THE DEFENDANT: He said that he had already bought the debt, and so how it had come about was not relevant. He was owed ten—he was out of pocket by £10,000, and therefore I owed fifteen thousand.
JUDGE HAWKESWORTH: So there was an even greater risk that people were going to come on round pestering you, and possibly bump into your wife?
THE DEFENDANT: It would look that way, yes.
JUDGE HAWKESWORTH: Yes. So why, at that point, did you not go back to Isiris and say: ‘Now, look here, we have got to sort something out here. This chap says he has bought the debt off you, and I do not owe you anything’?
THE DEFENDANT: I would have no way whatsoever of proving that I hadn’t, in fact, taken members from him. That was the problem I was going to have.
JUDGE HAWKESWORTH: You would have no way of proving what?
THE DEFENDANT: I have got no—I would have had no way of proving to Isiris that I hadn’t in fact taken members from him.
JUDGE HAWKESWORTH: That is not the point, is it? Because if they are claiming the debt, it is for them to prove that the debt is owing to you; not for you to try and establish that you have not taken any customers from them. You must know that from your business knowledge?
THE DEFENDANT: That? I am sorry, I missed that point.
JUDGE HAWKESWORTH: The burden is on them to prove that the debt is owing, not upon you to establish that you have not taken any customers from them. So, I repeat. Why did you not go back and try and sort things out with Isiris?”
The judge did indeed repeat; the flavour of the repetition was to suggest that there was nothing in the Isiris story.
- Another passage relied upon by Mr Ham as demonstrative of the judge’s evident disbelief of the appellant and his persistence in hostile cross-examination occurred at page 275. The appellant, in speaking to Mr Goodman on the telephone, had said words to the effect that if he paid this demand, there would be no more. He was asked in cross-examination why he said that. His answer was that he was trying to make Mr Goodman feel more positive about the fact that he was just about to pass over £15,000 to unknown people. The following exchange then occurred:
“JUDGE HAWKESWORTH: Yes, I know, you have indicated that was already—that that was your motive in saying that to him. But the question that you are being asked is: how could you give such a guarantee, honestly, to this man, for whom you had as much concern as you could, in the circumstances?
THE DEFENDANT: Because the person that they—these people—were after was me, and not him.
JUDGE HAWKESWORTH: Yes, but no, how could you give a concern—give an absolute guarantee to Mr Goodman that if he handed over the money they would not make another attempt to blackmail him?
THE DEFENDANT: The money that these people required from me was £15,000. If £15,000 had been paid, then I felt that both he and I would be safe.
JUDGE HAWKESWORTH: But, Mr Perren, you are not naive, I am sure, and I am sure you know that the popular view of blackmail is that once you give in to a blackmailer he does it again. Now, did that thought ever occur to you?
THE DEFENDANT: No.”
The judge was not content with that answer. He continued:
“JUDGE HAWKESWORTH: It never did? Throughout this whole state of affairs, it never occurred to you: if I give in to a blackmailer and I give him £15,000, a couple of weeks later he’ll be knocking on my door and asking me for another fifteen thousand?
THE DEFENDANT: No, because I felt that—”
The appellant was unable to finish his answer because the judge said:
“JUDGE HAWKESWORTH: That thought never occurred to you?
THE DEFENDANT: I felt that once the money had been paid, that would be it. I didn’t believe that I owed the money in the first place, but having done this then I was sure that that would be it.”
- We refer to one other citation only by way of illustration of the matters complained of by Mr Ham. He made reference to the fact that after the blackmailing incident Mr Goodman received a further letter of demand requiring that he should leave money at premises run by a car wash company. The appellant denied that he was the author of the letter. The inference from his defence was that the East European extortionists were the authors of the letter and that they had some connection with the car wash premises. At page 367 the following exchange took place:
“JUDGE HAWKESWORTH: Wait a minute. Wait a minute. Your—What this letter appears to show is that the blackmailer is sending a person, who they knew would go to the police, to the very place where they worked with the money. What sort of blackmail is that?
THE DEFENDANT: Well, there is certainly no way that I would have actually sent a letter like that myself.
JUDGE HAWKESWORTH: I am not asking you whether you did. I am saying, what sort of blackmailer do you think would do that?
THE DEFENDANT: Right, well you’re—
JUDGE HAWKESWORTH: They would have to be pretty stupid, would they not?
THE DEFENDANT: You’re asking me to speculate about people that I know very little.
JUDGE HAWKESWORTH: They would have to be pretty stupid, would they not?
THE DEFENDANT: I would have thought so.
JUDGE HAWKESWORTH: Yes. And do you think they had behaved stupidly before?
THE DEFENDANT: Well—setting fire to my car wasn’t particularly clever.
JUDGE HAWKESWORTH: Sorry?
THE DEFENDANT: Setting fire to my car wasn’t particularly clever on their part, was it?”
That would have been an inadmissible line of questioning from the prosecution, because it was the appellant’s evidence was that he did not send the letter. It might have been a matter for prosecuting counsel to comment in his closing submissions about the probability that this Eastern European gang had sent it, but the appellant himself could not properly be questioned about the mentality of somebody who wrote a letter of which he disclaimed all knowledge.
- In his skeleton argument Mr Ham has also drawn attention to the language in which manyof these questions were put, prefaced by, or containing such phrases as: “Why didn’t you?”, “It was obvious, wasn’t it?”, “Surely it would be easier”, “You are an obviously intelligent man, you know perfectly well”, “Just answer the question”, “That is not the point, is it?”, “You must know that”, and so forth.
- We must evaluate the effect of these interventions in the context of the trial as a whole. We are particularly concerned about the questions put in the course of examination in-chief. It is not a sufficient answer in our judgment to say that because questions were likely to be put in cross-examination, there was no harm in them being put by the judge in the course of the appellant’s evidence in-chief. We do not suggest that any intervention in the course of evidence in-chief, other than by way of clarification, must render a conviction unsafe. However, there are good reasons why a judge should be particularly careful about refraining from intervening during a witness’ evidence in-chief, except insofar as it is necessary to clarify, to keep the evidence moving on and, if necessary, to avoid prolixity or irrelevancies. The first is that it is for the prosecution to cross-examine, not for the judge. The second is that the right time for the prosecution to cross-examine is after a witness has given his evidence in-chief. It would be unthinkable for prosecuting counsel to jump up in the middle of a witness’ evidence in-chief and seek to conduct some hostile cross-examination. This is not merely in order to preserve an orderly trial. There is a more important, fundamental reason. A jury will inevitably form a view of each witness as the case goes along. As the witness is giving his or her evidence in-chief, so the jury will be absorbing that account and forming their own impression of the witness.
- The appellant’s story may have been highly improbable, but he was entitled to explain it to the jury without being subjected to sniper fire in the course of doing so. The potential for injustice is that if the jury, at the very time when they are listening to the witness giving his narrative account of events, do so to the accompaniment of questions from the Bench indicating to anybody with common sense that the judge does not believe a word of it, this may affect the mind of the jury as they listen to the account.
- We have been driven in this case to the regretful conclusion that the nature and extent of the interventions over the three days in which the appellant gave his evidence deprived him of the opportunity of having his evidence considered by the jury in the way that he was entitled. The conclusion from that is that we do not consider that he received the quality of fair trial to which he was entitled. That was not curable by a summing-up which reminded the jury that the facts were for them because their process of forming their opinion as to where the truth of the facts lay would have begun as they listened to the evidence unfold.
- For those reasons this appeal must be allowed.
- MR THOMAS:My Lord, the Crown’s application is for a retrial.
- LORD JUSTICE TOULSON: Yes.
- MR THOMAS:He has currently served a quarter of the seven year sentence and one-half of the portion he has to serve.
- LORD JUSTICE TOULSON: Yes. Mr Ham?
- MR HAM:Well, my Lord, it is regrettable that he has spent such a long time in custody—now 627 days. It was hoped that the Crown would take a different view if this appeal was successful, but it appears that they are determined to go on.
(The court conferred )
- LORD JUSTICE TOULSON: We accede to the Crown’s application. These are serious matters. We say no more about the nature of the evidence, but we think that the prosecution are entitled to seek a retrial.
- We will allow the appeal, quash the conviction and direct that a fresh indictment be prepared. The defendant must be re-arraigned on the fresh indictment within two months. He will be retried on both counts. The venue for the retrial should be determined by one of the presiding judges for the South East Circuit.
- I take it nobody is seeking any restriction of reporting in the meantime? It does not seem to me that there need be any, but I do not want that point to be raised later.
- MR HAM:No, my Lord.
- LORD JUSTICE TOULSON: There will be a representation order for junior counsel and solicitor. There is no application for bail and the defendant will be remanded in custody.