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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Malcolm v R.  EWCA Crim 2069 (01 September 2011)
Cite as:  EWCA Crim 2069
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ON APPEAL FROM THE CROWN COURT AT KINGSTON-UPON-THAMES
MR. RECORDER LUCAS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HOOPER
MR JUSTICE BLAIR
| WAYNE PATRICK MALCOLM
|- and -
MR. LEE SCHAMA appeared for the Respondent
Hearing date: 30th June 2011
Crown Copyright ©
Lord Justice Hooper :
"Wayne Malcolm will say as follows:
I was a tenant of 41 Dolphin House. I had to move out and terminate the tenancy agreement signed by me soon after I moved in. This is because my financial circumstances had changed significantly, i.e. loss of business income. I requested the agents to return my deposit money and keep one month's rent as agreed. I frankly told them I cannot pay the rent due to my change of circumstances. The agents refused to return the money. However they agreed to give me some furniture as a security towards my deposit because they advised that the landlord does not live locally so obtaining the money back from him will take some time. I was dealing with a representative of the agents all the time. This person was present when I left the property. I had planned to return these items once my deposit, subject of reasonable deduction, is repaid to me. I did not intend to deprive the owner or the agent of this property, i.e. the items listed on the next page. There was no intention to permanently deprive anyone. I did not take these dishonestly. I have been trying to contact this representative of the agent without success for under a year now. The person is a female. I do not remember her name precisely. She had told me that she had already discussed this arrangement with the other parties.
I have been contacting her without success to resolve this issue without further delay. My intention is to get my money back and not to keep the items.
Small two seater sofa I valued approx £450
One small chest of drawers I valued approx £350
TV stand I valued approx £350
Coffee table I valued approx £400
2 side lamps valued approx £60
2 small chairs valued approx £199 each
None of the above items are brand new."
"I made contact with an agent at Benham and Reeves and a tenant was found for the property. I understand that the tenant was found by another agent, Kinleigh, Folkard & Hayward, who dealt with the reference checks and passed the details back to Benham and Reeves. The tenant's references were faxed to me and the agreed tenancy began February 18th 2009. I never met the tenant personally as this was dealt with for me by the agent." (Emphasis added)
"A. The nature of the accused's defence in relation to the charge:
The accused did not steal or intend to steal the said items as alleged. The accused also disputes that he was dishonest in his actions. The accused does not accept that he took all the items being claimed by the complainant.
B. The accused takes issue with the prosecution in relation to the following matters:
That he stole the items from Matrix Maintenance Ltd and that he intended to steal the said items and permanently deprive Matrix Maintenance Ltd and that he was dishonest in his actions. The accused does not accept that he took all the items being claimed by the complainant.
C. The reason why the accused takes issue with the prosecution about this matter is that the allegation is untrue."
"(a) setting out the nature of the accused's defence, including any particular defences on which he intends to rely,
(b) indicating the matters of fact on which he takes issue with the prosecution,
(c) setting out, in the case of each such matter, why he takes issue with the prosecution,
(ca) setting out particulars of the matters of fact on which he intends to rely for the purposes of his defence, and
(d) indicating any point of law (including any point as to the admissibility of evidence or an abuse of process) which he wishes to take, and any authority on which he intends to rely for that purpose."
"THE RECORDER: Ms Levinson, is it going to be part of your case that there were discussions between your client and Kinleigh Folkard Hayward, the absence of evidence concerning which is an advantage to your case? Because if that is your position I'm going to demand a witness from Kinleigh Folkard Hayward presents his or herself here in the course of this trial, whenever that is.
MS LEVINSON: Your Honour, certainly my client's case is that he had discussions with an individual. And Your Honour, yes, I was intending .
THE RECORDER: Yes. I'd like a witness from Kinleigh, from the appropriate branch of Kinleigh Folkard Hayward here during the duration of this trial. I'd like an explanation from you, please, as the officer, why this hasn't been done before. Obvious step, should have been done. Gross oversight. All right? Please go off and attend to that now.
Right, let's have the jury in, please.
Once the evidence of this witness [Mr Lugg] is concluded I will review with Counsel what the standing of the law of this case is, because I am very troubled about it.
I have a number of questions for Mr Malcolm himself which may or may not answer some of the propositions. We'll see.
THE RECORDER: I've expressed my views for your consideration with your client. Mr Schama, what's the position? Is there a witness from Kinleigh Folkard Hayward on his way here?
MR SCHAMA: May I just take instructions?
MR SCHAMA: The officer says that there is a witness from Kinleigh Folkard Hayward on standby. They've been notified they are likely to be required today.
THE RECORDER: Right. And does that witness have access to any file concerning this transaction? Yes. And has anyone taken a witness statement from Mr Nelligan at .is it something Reeves? Benham & Reeves? Is there a witness statement from Mr Nelligan?
MR SCHAMA: I've seen records of conversation with him on the CRIS report, Your Honour, but I've not seen a witness statement from him.
THE RECORDER: In which case the witness from Kinleigh Folkard Hayward must come straight away, as indeed must Mr Nelligan. They must both make witness statements, and Ms Levinson can then cross-examine about the discussions her client had with these witnesses in relation to the return of his deposit. Okay? So that's those are the directions I am going to give for the moment. I'm going to go off the bench for ten minutes to allow these arrangements to be made, and for you, Mr Schama, and you, Ms Levinson, to discuss your respective positions.
Because the jury's just if they're to proceed with this case they're going to proceed with this case on a proper formal basis, and not with gaps in the evidence. Mr Schama, is ten minutes going to be long enough to make your enquiries?
MR SCHAMA: Your Honour, we'll certainly do as much as we can in that time. If there is a problem, perhaps I can notify .
THE RECORDER: Well, if there is a problem, let me know. If anything should change and you require me to give further directions or issue a witness summons I shall certainly do that." (Emphasis added)
"THE RECORDER: What's your designation then within the business?
A:Well, I'm the lettings manager, so I don't on a day to day basis deal with applicants and take them out on viewings, but I still deal with all paperwork or checking of references, dealing with landlords and valuing properties. Because we are a small team I would still say that I 100 per cent know what's going on with all our properties and the majority of our applicants.
THE RECORDER: Can I write it down slowly?
A:Sorry, I know I speak quickly. Sorry.
THE RECORDER: So you deal with all the paperwork.
A: Mmm hmm.
THE RECORDER: You check references?
A:Well, we have a referencing team, but I would monitor that process, yes.
THE RECORDER: You monitor references. What else do you do?
A:I do the valuations on new properties.
THE RECORDER: Anything else?
A:I deal with any problems, complaints, any issues that would come up during the tenancy.
THE RECORDER: And whilst your colleague Davinia dealt with Mr Malcolm, did you in any way oversee what she was doing?
A:Yes. We do that, we have a morning meeting every morning where we discuss all our applicants and what's going on with every process of any let that is proceeding.
THE RECORDER: So you oversaw Davinia's work?
A:Yes. Yes, 100 per cent.
THE RECORDER: I'm sure Mr Schama's going to ask you anyway, so I'm asking the questions. Is she still working for the business?
A:She does. She doesn't work for, she still works for us a company but not working in lettings. She now works for our sales team.
THE RECORDER: Where is she at the moment?
A:She still works in the Fulham office, but working in sales rather than lettings.
THE RECORDER: So she's there at the moment, is she?
A:Yes. Yes, she is. Well, she's not, as we speak this day, she's actually away on holiday at the moment, but she works, works there, yes.
THE RECORDER: When's she back from holiday?
THE RECORDER: Right. Where is she on holiday, do you know? A:She's in Holland, I believe. THE RECORDER: In Holland. Do you have a contact number for her?
A:I would do, yes. Yes.
"Can I understand the case you're putting, Ms Levinson? Are you suggesting that the person who was, who this discussion took place with was the same person as had shown your client around the flat? Is that your suggestion?"
"THE RECORDER: Can I ask one or two questions, please? Davinia Tyrell showed the, showed Mr Malcolm round the property.
A: Mmm hmm.
THE RECORDER: If, if a tenant had subsequently contacted, after a rental is arranged, subsequently contacted the negotiator to say, "Look, I've got a real problem," are there standing instructions at your firm as to what if any record the negotiator should make of that contact?
A:She would just pass it directly to myself, to be honest. She wouldn't get involved herself. He or she shouldn't get involved themselves. To be very honest though, as well
THE RECORDER: Just pause please.
THE RECORDER: You were saying.
A:Because the property wasn't one of our properties though we would have no contact details for a landlord. So if the tenant had, say, approached me directly and said he wanted to get out of the lease, or whatever the situation was, I would have had to refer him back to the Benham & Reeves, because we have no way of speaking to the landlord. So again, that was the only contact I would have had. And again, if he'd ever asked Davinia and she hadn't referred back to myself, again that was the only information she would have been able to give him because we don't even know, the company name, we have no contact details for the landlord or any way of assisting, so even if we'd really have wanted to help we couldn't. We would have had to refer them back to the other agent.
THE RECORDER: Let's take a hypothetical situation. Davinia (sic) negotiates a tenancy with a member of the public.
A: Mmm hmm.
THE RECORDER: He or she moves in. A little while later there's a problem and he contacts Davinia and says, "Look, I have a real problem. My wife has left me/my husband's left me, whatever the position might be, I've been sacked." Would Davinia in those circumstances ever go to visit the tenant at the flat?
A:No. Well, firstly I think she would pass it straight to myself
THE RECORDER: Just pause. I'm sorry, I don't mean to be rude
A:No, no, no, it's okay.
THE RECORDER: but it's quicker to say just pause than miss the answer.
MS LEVINSON: Your Honour, may I just, sorry to interrupt, but obviously this witness can only answer what she believes Davinia would or wouldn't do rather than
THE RECORDER: Well, she can answer about what the system is in her office.
MS LEVINSON: Yes, exactly
THE RECORDER: Yes.
MS LEVINSON: the system, but rather than, this witness cannot answer on behalf of Davinia as to what she did or didn't, or would or wouldn't have done. All this witness can say, with respect, is what she would expect to happen in those circumstances.
THE RECORDER: That's what I thought she was saying.
MS LEVINSON: Well, I'm not sure that that's, with respect the way that Your Honour asked the question.
THE RECORDER: Davinia would pass it to me.
MS LEVINSON: And then Your Honour asked, "Would Davinia ever go to the flat?"
THE RECORDER: Isn't that a way of asking is that part of the system that she would employ?
MS LEVINSON: Well, if the question's asked in that way then I don't object, but not that I would be likely to object to questions asked by Your Honour
THE RECORDER: I think it's for me to decide if I sustain your objection or not to my own question. Please answer the question.
A:Our policy in the office, well first and foremost is the safety of the member of staff, so I would never dream of visiting a property to discuss something with a tenant that was in and didn't, hadn't told us any, well, we weren't aware of any tragic story, any upset. I would, I would never visit a property myself, would never want any member of my team to go and do so where there is a potential situation in a property. And we're talking quite substantial rent arrears. Well, obviously, I don't know what date, we don't know what date this meeting potentially happened, but I would never visit a property, I would never want a member of my staff to do so either. For what could become quite a heated discussion, well, I would never expect it to happen.
THE RECORDER: Let me understand the procedure which a member of staff is supposed to follow. So if a tenant rings up and says, "I have a genuine problem," what would you expect that member of staff to do?
A:They would pass the call straight to myself.
THE RECORDER: Would you expect a member of staff to act on their own authority and go and visit the tenant in question?
A: Absolutely not.
THE RECORDER: Not?
A:No. Definitely not.
THE RECORDER: Are your members of staff, and you're the manageress of this branch, this unit, are your members of staff, do they have the authority to authorise the termination of a tenancy?
A:No, definitely not. Nobody apart from the landlord has that authorisation to make.
THE RECORDER: Are they authorised to permit a tenant to clear out a flat as a security against the return of a deposit?
A: Absolutely not.
THE RECORDER: If for some reason you were not contactable at the time a tenant contacted a negotiator, are there any procedures within your firm as to the record a negotiator should make of the problem?
A:Again, I don't believe they would deal with it. If anyone's on annual leave we have, we work as a pairing, so myself working in Fulham we have a pairing with our Putney office. We do it as a manager to cover valuations and we also do it our administrative purposes, that if I'm away on annual leave and there is the slightest problem they would have called the manager in our Putney office to ask for advice. And then they would have dealt with the situation.
THE RECORDER: Is Davinia an experienced person or not?
A:She's actually now been with our company for about three years. She's quite young, she's early 20s. At the time I would say she was about 21. I wouldn't say she's hugely experienced, and I wouldn't say she has the yeah, I wouldn't say, she'd probably been working in lettings about a year at the time, she wasn't like myself, I've been doing it for ten years, and I wouldn't say she's the sort of person who takes it upon herself to
THE RECORDER: Sorry?
A:I'm, I'm saying, I mean she's not hugely experienced, no. And thus isn't the sort of person that would want to get involved in an issue like this in any way.
THE RECORDER: Did Davinia at any stage draw any such problem with Mr Malcolm to your attention?
A:No. As I said she very shortly after this, the tenancy moved in, actually stopped working in our lettings team and transferred to work in our sales team. So whilst still in the same office, she wouldn't pick up a lettings call. If subject, if a call came through to her it would get passed through to me, because we didn't want to interrupt her doing her new sales job. So I think, I'll have to double check the date, I think it was the 1st March or April, very shortly after this, was one of the last ever lets she did for us.
THE RECORDER: Now, do either Counsel have any questions arising out of my questions? Ms Levinson? No?
MS LEVINSON: No."
"If I were to say to you now that one of the negotiators on your team had authorised a tenant to remove property against a deposit, what disciplinary action if any would you recommend in respect of that person?"
"THE RECORDER: Well, that's not the only matter I've raised with you, Ms Levinson. I'm being forced into the arena in this trial, much against my wishes, because at the outset I pointed out to you that your client had failed to comply with the defence statement requirements. There is no detailed explanation from him of what his defence is and what aspect of the Crown's case he takes issue with. Having raised this with you, this has not been rectified in any way, shape or form. It seems to me that the and I don't say this critically but the position the defence appears to be adopting is to seek to raise a lacunae in the Crown's investigation to their advantage. Now in most cases that is a legitimate tactic, but equally I think part of my job here is to ensure trials are fairly conducted so that a jury, when it comes to making its decision, has the evidence available. And if those lacunae can be filled properly without causing any injustice, well then they should be. I'm sorry you don't like it. I'm afraid that's the way it's going to be. And if that means my having to descend occasionally into the arena to ask questions that need to be asked, I'm afraid I will." (Emphasis added)
"THE RECORDER: The whole point of a defence statement is to prevent surprise defences, which is what I get the impression this trial is all about. A wholly inadequate defence statement has been provided. The defendant refused to answer questions in interview. He has provided a prepared statement in the very most general of terms. I raised this with Ms Levinson yesterday at the beginning of this trial, and despite my raising it in very clear terms nothing has been done to remedy the position. And I have been forced in to causing enquiries to be made so that this surprise tactic would not persist. This is, I think, very much part and parcel of my job. Now
MR SCHAMA: My learned friend may well be bound by those who instruct her, and they'll be bound by whatever instructions they're given.
THE RECORDER: If the position is that the defence refused to provide a defence statement, then so be it, but as I have said yesterday there will be consequences to that, potential consequences.
MR SCHAMA: Well, Your Honour, the only point I was going to raise is the person who is alleged to have given this authorisation now has a name. It is Davinia. We understand that she is abroad until Monday.
THE RECORDER: She can be contacted. She is in Holland.
MR SCHAMA: Yes.
THE RECORDER: Holland is not so far away. If necessary she can be here by tomorrow morning.
MR SCHAMA: All I was going to say was that if it is the defence case that it was Davinia who authorised it, then that's obviously something the Crown has to deal with.
THE RECORDER: Yes.
MR SCHAMA: If it's simply an unidentified person, then I'm probably satisfied on the basis of the evidence that has been called already. But if it is being said specifically it is Davinia, then that's obviously something that, if nothing else, she is entitled to answer. That's all I'd say.
THE RECORDER: The jury's entitled to hear her.
MR SCHAMA: Yes." (Emphasis added)
"MS LEVINSON: Your Honour, it's a matter for my learned friend which witnesses the Crown seek to call. At the moment the only up until the close of the prosecution case the evidence in relation to my client's defence is what's set out in the prepared statement, which doesn't name Davinia. It is only the, it is the service of this witness' statement shortly before the luncheon adjournment which has identified this witness by name, and only if this witness were in Court and my client presumably were able to see her would he confirm or not confirm that that is in fact the person that he's referring to.
THE RECORDER: Ms Levinson, we're entirely at cross purposes. It wasn't beyond the ability of your client or those who represent him to put in the defence statement that the person the Defendant spoke to was the person who showed him around the flat. That would have been an immediate point of identification as to who the person was. That wasn't done. It's not clear in this defence statement, is it?
MS LEVINSON: I accept that, and there are consequences which flow from that which Your Honour will, Your Honour's already mentioned
THE RECORDER: And one of those consequences might well be a hiatus in this trial whilst we have to wait for the arrival of that witness. This matter was never, never disclosed before. This is an ambush defence, Ms Levinson.
MS LEVINSON: Your Honour, I
THE RECORDER: The Courts strongly discourage ambush defence.
MS LEVINSON: Your Honour, I don't accept that it's an ambush defence. It certainly was not intended to be an ambush defence.
THE RECORDER: Ms Levinson, I have decided it is an ambush defence whether you accept it or not. Let's deal with what we've got, shall we? Now, where do we go from here? Do you want time to consider your position?
MS LEVINSON: Yes, but is the question Your Honour is asking whether, whether I want the Crown to call this witness? Or I'm not sure what
THE RECORDER: It's not for me to tell you what discussions you have with Mr Schama or, indeed, with your client. We've heard from this last witness, Ms Jenrick, and she has told us that it was Davinia Tyrrell who was the negotiator who showed your client around the property. You have told us now publicly that the person your client claims to have had this negotiation with was the negotiator who showed him around the property. She's identifiable. And so the question I need to have addressed is does it remain the contested position that this was the discussion held with that negotiator, or is there some other position that we are all to consider? And if that position does remain, what are the consequences to this trial? It's very simple, it seems to me. If your client's position remains the same, and you're bound by those instructions, it seems to me we'll have to get Ms Tyrrell here to give evidence about it." (Emphasis added)
"Ms Levinson. We have reached a position in the trial where the lettings manager from Kinleigh, Folkard & Hayward has said that under no circumstances was, would any of her members of staff be authorised to do that which your defence says, defence, your prepared statement says happened. The negotiator who showed your client around the flat was Ms Tyrrell, and you seem to have indicated that that was the person with whom your client came to this arrangement. Now, she is an identifiable person. We've been told she's in Holland at the moment. There is a contact number for her. This jury is capable of receiving evidence from her either at very short notice, to her inconvenience, or on Monday, when it's less inconvenient for her and more inconvenient for the rest of us. So I'd simply like to know what course, what application the parties wish to make as to how this trial should progress. That's all."
"MS LEVINSON: Your Honour, thank you for the time. I have no application to make. It is not a, I am not pursuing that as a positive part of my client's case, that assertion that it was in fact Davina Tyrrell. I will not submit that to the jury in closing. And so that's the position.
THE RECORDER: Why did you assert it?
MS LEVINSON: Your Honour
THE RECORDER: Was that a mistake?
MS LEVINSON: Your Honour, I have instructions. I am satisfied that my professional position is intact, as it were. Your Honour asked me a question and I answered the question. I don't think I put it to the witness, I think I only, I only made the statement in response to a question from Your Honour. Obviously it's up to my client what he positively wishes to what his case, what he wants his case to be put, how he wants his case to be put positively.
THE RECORDER: Then how are you proposing to withdraw the positive statement in the presence of the jury?
MS LEVINSON: Well, I'm I'm perfectly prepared and can say to the jury that I ought not to have positively, I ought not to have answered Your Honour's question positively when Your Honour asked whether or not it was my client's case positively that it was Davina Tyrrell.
THE RECORDER: I'll reflect on that. Mr Schama, what's your position?
MR SCHAMA: Your Honour, all I've said to my learned friend is that the Crown's only concern is as to the submissions that be made in defence closing. If it were to be said that it was Davinia Tyrell that authorised it then of course that's something which can't be said unless she's given an opportunity to comment on that. If it's simply being said it was an unidentified female agent then I'm satisfied that anyone who ought to have had the opportunity to comment on that has now done so, either through live evidence or, as my learned friend will do, through agreed admissions.
THE RECORDER: Is the last witness still here?
MR SCHAMA: She is still here, Your Honour's asked her to wait around, so she is here. So far as whatever was said in front of the jury is concerned, the Crown's position is simply that the jury will of course, are of course instructed in every trial that what Counsel says isn't evidence, and so far as
THE RECORDER: No, can I
MR SCHAMA: any arguments are concerned those are contained in closing speeches.
THE RECORDER: The position we've arrived at is this. A witness has the flat was let by Kinleigh, Folkard & Hayward (indistinct). We know the negotiator who showed Mr Malcolm the flat was from Kinleigh, Folkard & Hayward. There's an assertion from Mr Malcolm that an agent, unspecified, unnamed, undescribed, from an agency unnamed, permitted him to remove property. We have evidence from the two agencies which were involved in this transaction. In summing up I'd be bound to say to the jury that there was the opportunity for the defence to question witnesses from each of those agencies with a view to ascertaining who the agent was, either by description, or by name, or in some other fashion, by date, by diary entry, so that the positive assertion could be put. The opportunity was there. Now, I'm simply not prepared to allow this trial to go by default on the basis that having made a positive assertion in the presence of the jury the defence be entitled to withdraw it and resort to a "I'm not commenting" basis of putting their case. It seems to me to be wholly wrong and against the principles of a fair criminal trial. So those are my thoughts on the subject. Ms Levinson, you can ask for any witness to be recalled, I give you that opportunity. You can put your case in any shape or form you wish to put it. If you don't wish to put it then I'd be in breach of my duty to the jury if I didn't give them some guidance as to how this matter might be resolved will be to identify who it was your client says he spoke to. I give you every opportunity to do that, Ms Levinson. Description, age, colour of hair, time, which agency, which office. That's all within the knowledge of your client. I don't see that it can't be.
MS LEVINSON: Your Honour, I'll take further instructions, but I'm, I am not putting positively who it was. And if my learned friend wants to comment, and he will in due course, I imagine, about the absence of a description or any further details, unless of course my client gives some evidence in the witness box which changes the position, but if there are no further details about that person then it will be, the position will be the same as in many cases where the Crown will rely on the absence of a, the absence of a description.
THE RECORDER: No, it's much more specific than that. Who are the people who could have spoken to your client? It's finite, limited and identifiable. It can only have been one of two, at most three, people from the offices of Kinleigh, Folkard & Hayward, it was from there. Or a limited pool of people at the other agency, if that's where he says the person came from. I don't know. There are witnesses now open to you to cross-examine from each of the agencies concerned with a view to identifying who the witness is. And there's a duty on you, it seems to me Ms Levinson, to put that if that is your case. Now, what I'd like you to do, please, is to reflect on the position overnight. I'm going to ask this last witness to be back here tomorrow morning in case you wish to put that positive case to her. If you reflect overnight that you don't wish to because that isn't your positive case and you wish to put it to a member of the alternative agency, then I encourage you to contact Mr Schama so that he can make those, those arrangements.
MS LEVINSON: May I ask if the position is that I do not wish to positively
THE RECORDER: I will tell the jury that I gave you the opportunity of doing so and you didn't. It's Counsel's duty, it seems to me Ms Levinson, to, to put the case that the jury are being invited to consider.
MS LEVINSON: Your Honour, yes. But the position is that my client is arrested a year, 21 months after the event that he's talking about.
THE RECORDER: Yes.
MS LEVINSON: He may or may not be in a position to take the matter further than he can, that he does in his prepared statement, which is the say, "The person is a female and I don't remember her name precisely." That may remain the position.
THE RECORDER: That I entirely accept. What I find very difficult to accept is that he has no recollection of what she looked like, or indeed which agency he contacted with a view to obtaining her presence at his flat.
MS LEVINSON: I think I've, I've put to this witness [Ms Jenrick] that it wasn't her but it was somebody."
"17. ... Unfortunately, neither of the notes is dated and timed. This is not the first time that this court has had to grapple with jury notes which, at least in the form that they are presented to us in the Court of Appeal, are not dated and timed. We urge those responsible for the administration in Crown Courts to make sure that jury notes are dated and timed, with any other relevant details."
"MR SCHAMA: So far as I'm concerned I'm satisfied in the absence of an allegation against a specific individual the Crown has dealt with the issue of Kinleigh, Folkard & Hayward. The only potential other party who might be said to be an agent is Mr Lugg or any of his staff.
THE RECORDER: And he's dealt with that.
MR SCHAMA: And he's dealt with that."
"Ms Levinson, let's not beat about the bush and put everyone's let me put my cards on the table so you know what my approach to this case is. What I see happening, my impression is that an attempt will be made, no doubt very properly, to make a submission to the jury on the back of the prepared statement, say 20 minute later, "Can't remember what happened but this is what he genuinely believed, he wasn't being dishonest," and there will be no evidence from the Defendant. Now if that position were to arise I would anticipate giving the jury, well consider giving the jury a direction, I'd have to give the jury a direction about his failure to give evidence. And I would have to indicate to them the sorts of issues which could have been canvassed with him had he given his evidence. And I would probably have to indicate the common sense position that if the assertion in the prepared statement were true that he had had this discussion with somebody and had spent about a year trying to contact the person, he might have somewhere the person's name. He might have somewhere the person's telephone number. He might be able to provide a description of the person, so that at the very least you could have put that description in cross-examination to the previous witness with a view to attempting to identify the witness, so that that witness could be brought to Court to answer questions in support of your client's case. Now that is what, the stance I'm likely to take if the course, if the trial goes in, takes that course. I don't think that would be in any way unfair, because that's, those are the sorts of questions which the Defendant is likely to be asked if he gives evidence. Yes?"
"MS LEVINSON: Well ...
THE RECORDER: We have wasted a vast amount of time on this case. I'm not saying it's your fault, but the fact of the matter is that's what's happened. Now
MS LEVINSON : I
THE RECORDER: I will give you five minutes to get the instructions you need. I will sit again at exactly a quarter past four and I expect you to be ready. I will call upon you then, Ms Levinson, whether you're ready or not, to tell me whether you're going to be
MS LEVINSON: Well, Your Honour, may I now make an application for ten minutes? I don't want to keep Your Honour waiting. I'm anxious, anxious as you are and as I'm sure my client is that this matter is dealt with swiftly. It hasn't been the defence fault that there have been delays in this case and it wasn't
THE RECORDER: I'm afraid in part it is due to an abject failure to deal with a defence statement properly.
MS LEVINSON: Your Honour, I don't accept that that's the reason for the delay.
THE RECORDER: Well, I don't care whether you accept it or not, that's my view.
MS LEVINSON: The defence has not required the witnesses to be at Court, which has caused the delay.
THE RECORDER: Right. Please don't argue with me. My view is there was an abject failure at providing a proper defence statement. You may have until 20 past." (Emphasis added)
Adequacy of the defence statement
"2. The defendant appeared before the Crown Court on an indictment charging a single count of dangerous driving. The Crown's case was that the van in question had been followed from a petrol station and that the petrol station's CCTV showed the defendant getting into the driver's seat. According to the Crown, the van had been driven dangerously thereafter, but the pursuing police car had lost sight of it after a number of miles and it had been found later the same night some little way from where contact had been lost. The defendant was arrested about five days later after being, it was said, identified from the CCTV footage. In interview he declined to answer any questions.
3. In the normal way the case was listed before the Crown Court for a plea and case management hearing. The defendant entered a plea of not guilty. On the same day, through his solicitors, he served a defence statement. It contained the following paragraph under the heading: "General nature of the defence - section 6A(1)(a)":
"The Defendant was not the driver of the vehicle in question at the material time. He accepts he may have been the person shown on the CCTV at the garage."
The remainder of the defence statement does not need citation. It said, consistently with the passage which we have just cited, that the defendant took issue with the prosecution in so far as it was suggested that he was the driver of the vehicle at the material time.
4. On the morning of the trial, the judge asked counsel for the defendant what his case was. The judge said that he had read the defence statement as suggesting that the defendant was asserting that he may have been the driver of the vehicle at the petrol station, but that he was not at the material time. In that event, said the judge, why was there no mention of alibi? Was it that he was saying that he was in the vehicle but not the driver? Counsel for the defendant responded to this extent only. He told the judge that the defendant's case was that the defendant was not in the vehicle.
5. There followed a good deal of discussion which it is not necessary to recite. The judge took the view that the defence statement failed to comply with section 6A. It did not say where the defendant was at the material time if he was not in the driving seat. Having taken that view, the judge invited counsel to amend the defence statement. That invitation became, over the course of discussion, in effect a direction to amend the defence statement, although no formal order to that effect was, as it seems to us, ever explicitly made. What was undoubtedly said was that a failure to amend would be treated as a contempt of court."
"16. The first question which we think we ought to address is whether there was in this case a failure to comply with section 6A [see above paragraph 19]. The answer to that is that we do not know and neither did the judge. If the defendant was going to say that he was somewhere else rather than in the driving seat then there had been a failure to comply with section 6A. If he was going to call evidence from some source other than himself that he was somewhere else other than in the driving seat then there had been a failure to comply with section 6A. If, even, the possibility that he had been somewhere else was going to be raised distinctly before the jury by way of submission or argument, that too would entail a failure to comply with section 6A. Once the issue is going to be raised in any of those manners (and there may be other ways in which it could be,) section 6A(1)(ca) and (c) would apply and would require the defendant to set out why he took issue with the Crown on his location and to give particulars of the matters of fact on which he intended to rely for that purpose. However, if the defendant was going to make no positive case at all and not raise the issue of his possible location elsewhere, and if he was simply going to sit tight and ensure that the Crown proved its case, then, as it seems to us, there would have been no failure to comply with section 6A.
17. The judge was entitled to ask, and indeed to ask insistently and trenchantly. He was not, however, entitled to require counsel to reveal his instructions if no positive case was going to be made in any of the ways which we have identified or any other. From a position of ignorance the judge was not in a position to know, any more than we are at this stage, whether there had been a breach of section 6A or not. Only time will tell as the trial, which has not yet begun, proceeds."
"21 Do legal professional privilege and the defendant's privilege against self-incrimination survive section 6A? The answer to that is "Yes". What the defendant is required to disclose by section 6A is what is going to happen at the trial. He is not required to disclose his confidential discussions with his advocate, although of course they may bear on what is going to happen at the trial. Nor is he obliged to incriminate himself if he does not want to. Those are fundamental rights and they have certainly not been taken away by section 6A -see the reasoning in the slightly different context of the Criminal Procedure Rules in R (Kelly) v Warley Magistrates Court  EWHC 1836 (Admin),  1 WLR 2001."
The trial was not fair because of the Recorder's conduct in the absence of the jury but in the presence of the defendant
" ... account may be taken of the familiar triangulation of interests of the accused, the victim and society. In this context proportionality has a role to play."
" It seems to me that the and I don't say this critically but the position the defence appears to be adopting is to seek to raise a lacunae in the Crown's investigation to their advantage." (Paragraph 50 above)
"A wholly inadequate defence statement has been provided. The defendant refused to answer questions in interview. He has provided a prepared statement in the very most general of terms. I raised this with Ms Levinson yesterday at the beginning of this trial, and despite my raising it in very clear terms nothing has been done to remedy the position. And I have been forced in to causing enquiries to be made so that this surprise tactic would not persist." (Paragraph 52 above)
"It wasn't beyond the ability of your client or those who represent him to put in the defence statement that the person the defendant spoke to was the person who showed him around the flat. That would have been an immediate point of identification as to who the person was. That wasn't done." (Paragraph 55 above)
"26. ... the sole touchstone of a safe conviction ... was whether the Appeal Court could be satisfied that the jury (here the Jurats) would inevitably have come to the same conclusion even without the judge's inappropriate interventions, it might be difficult to upset this verdict: the case against the appellant was in truth a formidable one."
"27. ... there comes a point when, however obviously guilty an accused person may appear to be, the Appeal Court reviewing his conviction cannot escape the conclusion that he has simply not been fairly tried: so far from the judge having umpired the contest, rather he has acted effectively as a second prosecutor."
"28. While reference has been made above to some of the rules which should be observed in a well-conducted trial to safeguard the fairness of the proceedings, it is not every departure from good practice which renders a trial unfair. Inevitably, in the course of a long trial, things are done or said which should not be done or said. Most occurrences of that kind do not undermine the integrity of the trial, particularly if they are isolated and particularly if, where appropriate, they are the subject of a clear judicial direction. It would emasculate the trial process, and undermine public confidence in the administration of criminal justice, if a standard of perfection were imposed that was incapable of attainment in practice. But the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial."
"31. Under the common law system one lawyer makes the case against the accused, another his case in response, and a third holds the balance between them, ensuring that the case against the accused is properly and fairly advanced in accordance with the rules of evidence and procedure. All this is elementary and all of it, unsurprisingly, has been stated repeatedly down the years. The core principle, that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence, applies no less to civil litigation than to criminal trials."
"13. ... Whereas we entirely endorse robust case management and the importance of ensuring that all court time is used sensibly, 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. "
"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."
"With respect to the learned judge, we think that the course that he took was wrong and ought not to be taken. The question who should be called to give evidence for the Crown is a matter for counsel for the Crown. ... But it is wrong, merely because it may be advantageous to a defendant that the Crown should call a witness whom counsel for the Crown is reluctant to call, that the trial judge should seek to insist on counsel for the Crown calling that witness."
"The appellant was charged with causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861. At his trial a witness called by the Crown gave evidence which supported the appellant's claim that he had been acting in self-defence. The Crown decided to offer no further evidence. After a discussion with counsel the judge [HHJ Owen Stable QC] made it clear that he thought the case should proceed, but counsel for the Crown declined to take any further part. The judge called the one remaining prosecution witness. The appellant was acquitted of the offence contrary to section 18, but was convicted of the lesser offence of causing grievous bodily harm contrary to section 20 of the Act."
"Trials on indictment in England and Wales are adversarial. The prosecution decides who to charge and with what offences. They present the case for the Crown. Counsel for the defence presents the case for the accused. The judge is there to hold the ring impartially and to direct the jury on the law. These simple propositions are truisms, but their importance and the dangers of departing from them are highlighted by this appeal, which we allowed on March 13, 1992."
"... prosecuting counsel, after consulting those instructing him, said he would offer no further evidence. This prompted an unusually animated argument between counsel and the judge, who was clearly outraged at what he expressly called the crass incompetence of the Crown Prosecution Service in serving and making part of the prosecution case a witness they knew would support the defendant and then seeking to discontinue when predictably he did just that.
Expressing his view that the case should go on, the learned judge made clear that he thought [the complainant] was "a witness of truth and a very accurate and careful one," [E] was "patently false." He told prosecuting counsel it would be "utterly, utterly wrong to chuck your hand in at this stage." Nevertheless, prosecuting counsel maintained his position and took no further part. The learned judge then decided that the case should not stop and that he would call a police officer who was the remaining witness for the Crown. He referred to that witness's testimony as "only a formal piece of evidence." The officer proved the notes of the appellant's interview. Admittedly, the notes were signed by the appellant and not disputed but the evidence was necessary to link him with the assault.
At the conclusion of the prosecution it may be that a submission of no case was made and rejected. Certainly, the learned judge had indicated in the earlier argument that if such a submission were made he would reject it.
The appellant did not give evidence on his own behalf. We are told that his decision not to do so was influenced by his impression that the judge was hostile to him so that he was reluctant to be questioned by the judge. He signed a statement to that effect. Counsel for the defence addressed the jury and the learned judge summed-up. After a three hour retirement, the jury acquitted the appellant of the offence charged under section 18, but convicted him of the lesser offence under section 20."
"It is well established that the judge in a criminal trial has power to call a witness. It is, however, a power which should be used most sparingly and rarely exercised (see Roberts (J.M.) (1985) 80 Cr.App.R. 89, and the cases therein cited at p. 96). Where the power is exercised, it should be for achieving the ends of justice and fairness. Thus in Tregear (1967) 51 Cr.App.R. 280,  2 Q.B. 574, a judge's decision to call a witness at a late stage of the trial was upheld because he was 'not seeking to supplement the prosecution.' "
"Here by calling the last witness, the learned judge was not only supplementing the prosecution; he was in effect taking it over. It cannot in our judgment be right that a judge can refuse to allow the prosecution to discontinue before their case is concluded if he believes the evidence already called raises a prima facie case. The effect would be that after a complainant gave evidence which the judge thought credible, if the prosecution at this point decided on due reflection to discontinue, the judge could go on to call all the remaining prosecution witnesses himself. In doing so, he would inevitably have descended into the arena in a totally unacceptable way."
Taylor LJ then referred to what might have happened if the defendant had given evidence: "the alternatives would have been either for the judge to cross-examine him or for his evidence to remain untested and unchallenged." Taylor LJ continued:
"by proceeding as he did, the learned judge was no longer holding the ring. He took over the prosecution. There was no other prosecutor. The reaction of any neutral bystander could only be that the judge had become the adversary of the defence."
Recorder's intervention during the cross-examination of Ms Jenrick
"Can I understand the case you're putting, Ms Levinson? Are you suggesting that the person who was, who this discussion took place with was the same person as had shown your client around the flat? Is that your suggestion?"
Judge's questions of witnesses whilst giving evidence to the jury
Note 1 The managing agent, Mr Lugg, gives a different figure but that may be net of commission. [Back] Note 2 This was in force at the time having come into effect on 3 November 2008, see the Criminal Justice and Immigration Act 2008, s 60(1) and SI 2008/2712. [Back] Note 3 Jurats are elected by a special electoral college. They do not necessarily have a legal qualification but are elected for their known history of sound judgment and integrity. The facts are decided by the Jurats, the Commissioner retiring with the Jurats but not joining in the fact-finding exercise unless the Jurats disagree: seeMichel, paras. 19 and 31. [Back]
Note 1 The managing agent, Mr Lugg, gives a different figure but that may be net of commission. [Back]
Note 2 This was in force at the time having come into effect on 3 November 2008, see the Criminal Justice and Immigration Act 2008, s 60(1) and SI 2008/2712. [Back]
Note 3 Jurats are elected by a special electoral college. They do not necessarily have a legal qualification but are elected for their known history of sound judgment and integrity. The facts are decided by the Jurats, the Commissioner retiring with the Jurats but not joining in the fact-finding exercise unless the Jurats disagree: seeMichel, paras. 19 and 31. [Back]