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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Lashley, R v [2005] EWCA Crim 2016 (28 July 2005) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2005/2016.html Cite as: [2005] EWCA Crim 2016 |
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT SNARESBROOK
HHJ MEDAWAR AND A JURY
Strand, London, WC2A 2LL |
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B e f o r e :
(DEPUTY CHIEF JUSTICE OF ENGLAND AND WALES)
MRS JUSTICE RAFFERTY
and
THE HON. SIR DOUGLAS BROWN
____________________
R |
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- v - |
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Lashley |
____________________
Mr B. Douglas-Jones for the Crown
Hearing date: 21st July 2005
____________________
Crown Copyright ©
Lord Justice Judge :
"Yes. My application, first of all, is to say that it is wrong for the Crown to rely on both those propositions, because of the case I have just cited to your Honour. They have to say either that the quality ... "
The judge then interrupted. He said:
"Do not be ridiculous. Of course, they do not have to either/or they can say both."
"extremely grateful if your Honour would let me make an application ...".
The judge interrupted again saying:
"No, because you are not making an application, you are simply saying that in some way the Crown have opened the case in a way that it is not possible, and, of course, it is possible."
Counsel said to the judge:
"Your Honour, if I may make this point and then we can move on. If Miss Thomas is an expert, because she is giving opinion evidence as an expert, then ..."
The judge again interrupted:
"No, she is not an expert."
Counsel persisted:
"Well, if she is to give ... if opinion evidence is not admissible per se in a trial, unless it is given by an expert ..."
The judge again interrupted:
"I am simply not going to take up any more time with this application."
"made no note of anything"
and told counsel:
"Let us not be silly. Let us move on".
As the cross-examination continued, the judge intervened in relation to another series of questions:
"Well, what is this nonsense about her not looking at the copy document …".
This intervention led counsel to comment:
"I think that is rather unfair, your Honour. I am not …".
The judge interrupted:
"Well, it is not unfair at all. Anyone dealing with a case properly would have said by now there is no … you have not made the suggestion, so, presumably, you are accepting that that is not her signature?"
The exchange continued briefly and culminated with the judge saying,
"Then, let her look at this copy. This is really nonsense."
In this short exchange, in the presence of the jury, counsel was twice told that she was behaving or talking nonsensically, once told that she was being silly, and it was once suggested that she was not dealing with the case properly.
"… it is not a proper way to question anyway …"
And then addressing counsel for the defendant:
"You are given to … whilst it is quite appropriate for defence counsel to take every point, you go beyond that which is proper on so many occasions that it is another one of them. Had it been an appropriate way of dealing with the case, it would not have been an appropriate way to ask the question."
"Well, you are, provided you exercise extreme caution, because it is very easy for you to overstep the mark …"
He replied:
"No it is not. It is not."
Counsel then said:
"I am not sure which circumstances …".
This led the judge to reply,
"We have come across each other before …"
and he went on
"This is not the first occasion and whilst, in your enthusiasm to exercise what you see as the rights of defence counsel, you go close to if not beyond the line on almost every occasion …"
Brushing aside an attempt by counsel to comment, he went on
"You do not seem to have the capacity just to deal with things in a proper way. Now as long as you exercise extreme caution you will hear nothing from me, but overstep the mark and I will upbraid you about it, because I am not having it …".
"Counsel: Well, your Honour, I would appreciate ….
Judge: As I have said on other occasions …
Counsel: In that event, if your Honour would please tell me, so that it is not said in front of the jury, as your Honour just said which …
Judge: Well, I am afraid it will be, because I am giving you … you must act responsibly, if you go beyond it and start going beyond it, then I will do my best to indicate that you are doing so, but is perfectly obvious and you know perfectly well how to behave yourself. You are not a baby barrister, you've been doing this for some time, so you know perfectly well and everything you do is deliberate."
"You see, if you do these things properly and you ask the questions and you say it on the basis: don't you think you should have made a note? That is one way of putting it, but the way you tend to put it is far more abrasively than that. You say: Oh you did not make a note. And then make something of it, to try and make some false point and that is what I object to. I do not mind you asking the questions, it is when you start moving to a false point and you know perfectly well the difference."
Counsel's response was:
"No: I am sorry, your Honour, I do not …",
to which the judge replied,
"Or at least you should do".
Counsel said:
"I do not know which false point your honour is referring to",
and the judge said that he was going to leave it to her to get on with it otherwise more time would be being spent out of court. This further exchange simply underlined the judge's view that counsel was prone to making not bad or mistaken points, but false ones. It must be read in context of the earlier exchange and the judge's aspersions on her integrity.
"You know perfectly well that that is not the reason. The answer is there is no answer to the questions at that time and that may be relied on by the Crown as evidence from which inferences can be drawn".
The exchange continued in the presence of the jury with counsel saying,
"Of course, your Honour in cross-examination …"
to which the judge responded,
"and those inferences cannot be drawn without seeing what the questions were."
Counsel pointed out that that would arise if the defendant gave evidence in which case the questions could be produced at that stage. She was right. And the judge then said,
"I see, you have not made your mind up whether you are going to call the defendant."
Counsel said that she had not.
"You have quite unnecessarily gone into … the use of the card",
and he then went on,
"for some reason known best to yourself, picking through every little stone, in case there is something that might fortuitously come up, you've gone into the whole business of the card and so forth, and, now, counsel quite fairly, unnecessarily fairly, actually had left out the second transaction and I think now he is entitled to put it in".
It was submitted that nothing that had been done warranted or required mention of the first transaction to which the judge said:
"I do not know why you did it, but it is your way and you think there is a benefit in it, I am afraid I do not. Anyway, there we are."
The jury returned to court.
"Well, listen to the question, if he [a reference to counsel for the Crown] does not object you can ask it. I cannot imagine what question you want to ask but there we are. Go on."
Counsel then asked a single question and the evidence of the officer was completed.
"Bear in mind when the card went missing and if you need to see the CCTV again, then, please, ask and you will be shown that, because it may assist you in deciding whether or not it is a clearer image".
"You see, you just find yourself unable to stop. Again, you have told the jury that if they want to they can see the tape. The answer to that is they cannot. It is not an exhibit and it deliberately was not made an exhibit, so we would not have difficulties in the middle of the jury being out and wanting to come back and look at it because there are stills in this case."
Counsel apologised saying,
"I did not realise … "
and the judge said that he was not going to discuss it but he was merely
"pointing out with you so that you if would pay attention to what is going on, you would know that is the position. If you are going to raise those sorts of matters, it is as well to mention it to the judge to see whether he approves of that course or not, but I am afraid you are not alone these days, there are many young barristers who feel it is necessary to tell the jury things that are not going to happen, or tell them what they imagine the judge is going to say. I must say you have restrained yourself from doing that, for which I am grateful, but it does not help, as a rule."
"I know, she was quite wrong. Well, I am afraid this is what [counsel] does quite frequently and I am not proposing to say anything about it, because I understand your irritation and you can understand why I become irritated at times with this silliness, but I imagine it was inadvertent on her part and only to discuss it now only gives it a weight which it does not deserve. I will sum up in a way that I think is correct and we will leave it there …. Thank you for drawing my attention to it and I can understand your irritation. All right."