Regina v Paul Anthony Lidford

Regina v Paul Anthony Lidford

No: 200801303 B3

Court of Appeal Criminal Division

24 October 2008

[2008] EWCA Crim 2610

 

Case Digest

The applicant was convicted unanimously on four counts of assault and was sentenced.

The applicant applied for an extension of time of 11 months and 12 days in which to apply for leave to appeal against conviction and approximately seven months for an extension of time for leave to appeal against sentence. 

Solicitors for the applicant stated that the explanation proffered for the delay is totally inadequate and that they would have refused the application for an extension of time but, given the proposed appeal against conviction have decided to consider the merits of the proposed appeals both against conviction and sentence.

The appellant and the complainant met in 2002 and cohabited for a short period but otherwise retained separate accommodation. It was a turbulent relationship, with each side claiming the other was abusive and/or violent. The police were called on several occasions by friends or neighbours who were concerned.

The complainant made her first statement to the police on 10th July 2003 and she gave details of an assault by the applicant the day before. 

She made a second statement to the police on 10th July in which she gave details of the injuries sustained. 

She then made another statement on 16th July 2003 in which she confirmed she had been assaulted but stated she now wished no longer to pursue the complaint. She said this: 

“I have decided to withdraw my complaint against [the applicant]. I do not want to take Paul to court, neither am I willing to attend court as I am concerned about what I will be asked. I do not feel I can deal with this at the moment.”

 

She did not say in that statement that the contents of the original statement of complaint were false. On this occasion the Crown, albeit unable to prove her injuries without her co-operation, could establish an offence of common assault. Proceedings were brought and on 6th November 2003 the applicant pleaded guilty to an offence of common assault.

The relationship continued and matters became progressively worse and the assaults, according to the complainant, continued. She next made a statement on 6th May 2004 in which she described a cycle of violence that occurred on 5th May 2004.On 11th May 2004, another statement arrived in which she indicated she did not wish to pursue the complaint. She said this: 

“I have since decided that I don’t want to pursue the complaint. I have not been threatened or intimidated in any way by Paul LIDFORD or anyone else to withdraw my complaint. It is entirely my own decision. I do not want to attend court and don’t want my personal life dragged through the court or in the press.”

Nowhere did she suggest the contents were untrue.

On 3rd September 2004, she attended the Magistrates’ Court to give evidence in proceedings triggered by her statement dated 6th May 2004. On oath she told the Magistrates that she had lied and exaggerated in that statement. This led to the applicant’s acquittal. 

It was accepted by Mr Jebb that her evidence in the Magistrates’ Court was an example, of a previous inconsistent statement made by her.

She next made a statement on 30th August 2006 in which she complained of the four assaults which formed the subject matter of the counts before us. In that statement she said that she was willing to make an official complaint and attend court. 

Again, she did not suggest the allegations were untrue. Her basis for not pursuing the matter was that she “still loved the applicant”.

The original statement of complaint relating to the present incidents described events in the period between September 2005 and August 2006. She described how the applicant abused and assaulted her.

The last two counts (3 and 4) related to incidents on 29th and 30th August 2006, when the complainant’s heinous crime worthy of punishment was to look at the applicant the wrong way. She attempted to run away from him but he followed her and the abuse continued.

On the first morning of the trial, 19th February 2007, the complainant made a further and final statement to the police in which she set out the history. The content of those letters suggested a deep attachment and regret on the complainant’s part for getting the applicant into trouble. It is important again to note that she does not say in any statements or her letters that her allegations were untrue.

In cross-examination she admitted that they had exaggerated her original statement of May 2004 and she admitted that she had at some stage lied in court. She also admitted that she had spat at the applicant on an occasion and thrown his golf clubs out of a window. She conceded that since he had been on bail she had been in contact with him, sending him affectionate text messages. She had also been in contact with his mother saying that she regretted what she had done and blameing herself for the applicant’s predicament. The applicant in his evidence suggested that any violence came from the complainant and denied that he was guilty of the assaults alleged.

On the applicant’s behalf, Mr Heraghty argued that the evidence of the complainant’s previous statements amounted to evidence of inconsistent statements admissible as to content pursuant to section 119 of the Criminal Justice Act 2003 . 

He argued that as a result the recommended direction provided by the Judicial Studies Board guidelines should have been given concerning the unreliability of a witness who makes inconsistent statements. He submitted the jury should have been directed in terms to treat the complainant’s evidence with caution. 

Mr Jebb for the Crown conceded that one part of the story and only one part amounted to a previous inconsistent statement, namely her evidence at the Magistrates’ Court when she admitted lying on oath. He further conceded that the Recorder could have given a direction in accordance with the Judicial Studies Board Specimen Direction in relation to previous inconsistent statements. However, he argued that the judge did all that was necessary. In relation to the complainant’s evidence at the Magistrates’ Court, he directed the jury: 

Mr Jebb invited us to consider that direction in the context of the summing-up as a whole. The entire trial was focused on the chronology of statements and retraction statements made by the complainant and upon the letters written by her. The issue of her alleged inconsistency was at the heart of the case and was dealt with extensively in cross-examination in closing submissions and in the summing-up.

Having read the summing-up as a whole, in our judgment the Recorder made it crystal clear to the jury they had to be sure that the complainant was telling the truth on this occasion before they could convict. We have absolutely no doubt, given the way the trial was conducted, that the jury would have been well aware of the reliance, properly placed by Mr Heraghty, on the catalogue of retracted complaints and the need for caution before relying on what an admitted perjurer had said had happened. It may have been preferable for the Recorder to use the words recommended by the Judicial Studies Board but, as Mr Jebb observed, the Recorder got the important message across but by a different route. No other criticisms could be and indeed are advanced of the summing-up. It was full and fair and put what were in essence very simple issues before the jury: did the jury believe the complainant, was she telling the truth? Accordingly, the alleged failure on the part of the Recorder in our view does not amount to a failure and certainly does not undermine the safety of the conviction. Therefore we refuse the application for an extension of time and for leave to appeal against conviction. 

The applicant is aged 33. He has previous convictions for assault occasioning bodily harm, assault with intent to resist arrest and criminal damage and, as we have indicated, he has previously pleaded guilty to common assault against this complainant. The pre-sentence and psychiatric reports prepared upon him did not make very happy reading. He minimised the extent of his violence towards the complainant and he was assessed as presenting a medium risk of reconviction. 

The only point taken by Mr Heraghty on behalf of the applicant in his succinct but helpful submissions was that the Recorder passed an unlawful sentence. Having acknowledged that there was a statutory maximum of six months in relation to two offences of common assault, he passed sentences of four months and four months on them, ordering them to run consecutively, and therefore thereby passed a sentence of eight months for the two offences. 

This means that we must act to reduce their combined effect to a sentence of not longer than six months. Mr Jebb, however, in his very helpful submissions, reminded us of the provisions of the Criminal Appeal Act 1968 which enable us to deal with sentence as a whole provided we ensure that the appellant is not more severely dealt with on appeal than he was dealt with by the court below. As Mr Jebb observed, it is absolutely clear from the Recorder’s sentencing observations that his sentences took very much into account the principle of totality. He intended the overall sentence of two years and five months to reflect the overall offending. 

There was no suggestion that the sentence was in any way excessive overall, the sentences of four months’ imprisonment on counts 1 and 3 of common assault were quashed and substituted for sentences of three months’ imprisonment, they increased the sentence of 12 months’ imprisonment on count 2 to one of 14 months and we left the sentence on count 4 as it is. The sentences will run consecutively to each other, making exactly the same total, (a somewhat pyrrhic victory for the appellant, as he now is). We give him leave and we alter the sentences in that way.