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Cite as: [2006] EWCA Crim 470

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Neutral Citation Number: [2006] EWCA Crim 470
Case No: 200407117/B3

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEICESTER
HH Judge Stokes QC
T20027166

Royal Courts of Justice
Strand, London, WC2A 2LL
10/03/06

B e f o r e :

LORD JUSTICE THOMAS
MR JUSTICE McCOMBE
and
JUDGE STEWART QC
(Sitting as a Judge of the Court of Appeal Criminal Division)

____________________

Between:
Regina
Respondent
- and -

SEBASTIAN LEE RUSSELL
Appellant

____________________

Adrian Maxwell (instructed by CPS) for the Respondent
Stephen Coward QC for the Appellant assigned by the Registrar of Criminal Appeals
Hearing date: 14 December 2005

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Thomas:

    Introduction

  1. On 16 November 2004 in the Crown Court at Leicester before HH Judge Stokes and a jury the appellant was convicted and subsequently sentenced on 19 November 2004 for the following offences:
  2. i) Count 1: Handling Stolen Goods: 2 years imprisonment

    ii) Count 2: Attempted Murder: 20 years imprisonment; no verdict was returned on count 3 as it was an alternative to count 2.

    iii) Count 4: Making Use of a Firearm with Intent to Resist Arrest: 13 years imprisonment

    These sentences were concurrent with each other

    iv) Count 5: Perverting the Course of Justice; 4 years imprisonment, consecutive to the terms above.

  3. He had been indicted with David Amartey on Count 1 and Cleo Duggan on Count 5. Amartey pleaded guilty to count 1 and was sentenced to 15 months imprisonment. Cleo Duggan was acquitted on count 5 by direction of the judge on the basis that there was no case to answer.
  4. During the course of the summing up, an incident almost unique in trials in England and Wales occurred; the appellant escaped from the dock and physically attacked the judge in circumstances we shall describe. For this, he was found to be in contempt of court and sentenced to a consecutive sentence of 18 months imprisonment by a different judge. We would observe that this was a merciful sentence, even in the context of the long sentences passed for the offences of which he was found guilty at the trial for attempted murder and other offences. Those who attack a judge, jury or other officer of the court in the course of their duties, particularly in the court room, can expect very long sentences measured in years; it is a further aggravating feature if the object of the attack is an attempt to frustrate the process of trial by judge and jury.
  5. The nature of the appeal

  6. The appellant appeals against conviction by leave of the single judge.
  7. i) The trial concerned two separate incidents:

    a) an incident on 25 February 2002 when two men attempted to collect a stolen vehicle, were intercepted by the police and one of the men shot at one of the police officers. The issue in relation to that incident was whether it was the appellant who shot at the officer. This incident was encompassed within counts 1-4 of the indictment.
    b) An incident on 16 June 2003 when the appellant was shot, two days before the appellant was due to be tried in respect of the incident on 25 February 2002. It was the appellant's case that he was shot by a notorious Yardie gangster, CD, because he was an informer. It was the prosecution case that this was a charade to provide evidence to bolster the defence of the appellant in respect of the incident on 22 February 2002 as set out in his defence case statement of 30 January 2003. This incident was count 5 in the indictment.

    ii) The appeal raised two issues:

    a) The fairness of the summing up and an issue of admissibility of evidence;
    b) The judge's continuance of the trial after the appellant had escaped from the dock and physically attacked him; it is contended that, in the circumstances, a material irregularity had occurred.
  8. These two issues were said to be inter-related as it was urged on us by leading counsel for the appellant that the attack on the judge was in someway explained, though not of course excused, by the way in which the judge had summed up the evidence. May we say at the outset that it is accepted that the judge conducted the trial with complete fairness; we have concluded, for the reasons we set out below, that he admirably and fairly summed the case up for the jury. Nothing the judge said in the course of his summing up could begin to explain, let alone begin to excuse, the physical attack made on the judge and thereby on the process of trial by jury. We have also concluded that the only explanation for the attack on the judge was a deliberate attempt by the appellant to bring his trial to an end.
  9. It is necessary for us to set out the circumstances relating to the offences and to the trial in more detail.
  10. The circumstances relating to counts 1-4: 25 February 2002

  11. On the 19 November 2001 a blue Audi S3 and electronic key was stolen from Nottingham. On morning of the 25 February 2002 the car was seen parked and unattended in Ash Street, Leicester with a false registration plate. Police kept the Audi under observation when at 12.5O p.m. two men got into the car. Officers manoeuvred their own vehicle to block the Audi and the two occupants got out and ran off. The two men were wearing navy blue hooded parka jackets which appeared to be identical.
  12. PC Hunt chased the driver. PS Rixon pursued the passenger into a nearby clothes factory and arrested him; he was identified as David Amartey; he had been wearing, but shed by this time a parka, a Donnay jacket and a pair of dark coloured soiled and wet socks; the items, including the socks, were recovered. As we have set out, Amartey pleaded guilty to handling stolen goods.
  13. PC Hunt gained on the driver who then took out a gun and fired it at the officer at a range of about 10-12 feet. PC Hunt retreated but was not injured; he joined in the chase of Amartey. A short time later three council gardeners sitting in a van stationery in the area noticed a man discarding items of clothing, including pulling a waterproof jacket over his head, although it was February and it was raining. One witness descried him as crouching down to move something at or on ground level. The items (a dark blue Donnay nylon waterproof jacket intertwined with a T shirt and a glove) were later recovered; the glove was found, on forensic examination 2 years later to contain firearms residue; the T shirt had been found to have on it DNA matching that of the appellant. A sock or a pair of socks was found nearby which were heavily soiled or mouldy; these were pointed out by one of the gardeners (Mr Bullough), but ignored by PC Walkinshaw, one of the police officers, and never recovered. There was a CCTV image of a person agreed to be the appellant walking past the Humberstone Lodge Hotel which was in the vicinity.
  14. Another officer who attended the scene suggested the appellant as a possible suspect for the second man because he knew that Amartey spent a lot of time with him. The appellant was subsequently arrested and stood on an identification parade where he was picked out by PC Hunt and only one of the gardeners, Mrs Clarkson. The appellant was also originally charged with conspiracy to rob, but this charge was severed from the indictment on which he stood trial.
  15. It was the prosecution case that the appellant was the man who had got into the driver's seat of the stolen Audi (Count 1) and had subsequently shot at PC Hunt (Count 2) in order to avoid arrest (Count 4).
  16. The appellant's defence set out in his first defence case statement (served on 30 January 2003) was that on that day the appellant and Armartey had met up with a notorious Yardie gangster with a reputation for murdering people known as CD (Cool Dreads) who said that he wanted an "insurance job" done on an Audi which was to be sold on to a gypsy. The appellant was told to wait for the gypsies while CD and Amartey went to collect the Audi. After a short while he heard sirens; CD had run towards him with a gun in his hand and told him to run. He had panicked and ran off; he had been wearing a blue top, a jumper and jacket; he had taken off the blue top in a panic and the T-shirt must have become caught up with it as it was taken off; CD had a similar blue jacket and he did not want to look like CD. CD had subsequently made threats of violence against him and warned him not to give information to the police.
  17. The circumstances relating to 13 June 2003: Count 5

  18. On Friday 13 June 2003 (with the trial due to commence on Monday 16 June), the appellant was shot in the leg as he waited for his girlfriend, Cleo Duggan, in the car park of the Spar shop in Erdington Place, Leicester. He was taken to hospital but was released after he was found to have sustained a flesh wound with no injury caused to any artery or bone. The appellant gave a statement to the police in which he maintained that he had been shot by CD who had accused him of being an informer; he had been shot to prevent him from claiming at the trial that CD was the gunman.
  19. On investigation, this account was rejected and the appellant and Cleo Duggan were charged on 1 October 2003 with conspiracy to pervert the course of justice (subsequently count 5). It was the prosecution case that the shooting was a charade which had been carried out by the appellant and Cleo Duggan in an attempt to add credence to his defence that CD did exist, had a dangerous reputation and could have been the person who had shot at PC Hunt on the 25 February 2002.
  20. On 30 March 2004, the prosecution served a case summary with a request to the defence to consider whether they could agree any matters. It was the prosecution case that the appellant was a professional criminal and that CD was entirely fictitious.
  21. In July 2004, after the instruction of new counsel, a second defence case statement was served in which the appellant denied that he had been in the relevant area on 25 February 2002 and could not have been the man who had shot at PC Hunt or been seen discarding items of clothing by the gardeners. PC Hunt and Mrs Clarkson were mistaken in their identifications.
  22. The trial

  23. This position was maintained by the appellant when the trial began on 18 October 2004. The prosecution relied on a number of witnesses, including, as relevant to the issues raised in this appeal,
  24. i) PC Hunt and the gardeners, particularly Janet Clarkson, as to identification of the appellant

    ii) Scenes of crime evidence from Mr Chauhan as to the way in which he recovered the parka, Donnay jacket, T shirt and glove worn by the gunman.

    iii) Forensic evidence from Mr Keeley, a firearms residue expert to the effect that firearms residue had been found on the glove and parka. The T-shirt and Donnay jacket had been sent to him as exhibit DCO3 together rolled up in a bag and when examined by him in August 2004 were each found to have a particle of residue on their outer aspect.

  25. Witnesses were cross-examined on the basis of the second defence case statement in which the appellant was denying his presence at the scene:
  26. i) PC Hunt was cross examined on the basis his identification was wrong as his description of the facial features and clothes did not match those of the appellant; and that he had seen on about 20 occasions a picture of the appellant before he made his identification, as that photograph appeared on each occasion on which he logged onto his computer

    ii) Janet Clarkson was cross examined on the basis that she had worked for a number of years close to his home address, regularly cycled passed the end of the road where he lived and shopped in the nearly High Street and had been mistaken in her identification.

  27. The prosecution also adduced evidence, whilst this line of defence was being maintained, that another Audi had been seized by the police on 31 January 2002. The evidence connected the appellant to this car which had in it 2 Donnay jackets identical to those recovered by the police after the incident on 25 February 2002.
  28. At the conclusion of the prosecution case, we were told there was a long consultation between the appellant and his lawyers; the appellant then gave evidence. In the account given by him in his oral evidence, he reverted, for the most part, to his original account in his first defence case statement that he had been waiting in the area when he had heard sirens and CD had run towards him with the gun. He admitted
  29. i) that he had previously lied when saying that the car was to be sold to gypsies and said that it was being collected to have its seats removed.

    ii) that he had been the person seen discarding clothing by Janet Gardener, and the other gardeners; she had, in fact, been right about her identification of him.

    He said that he had lied in previous defence case statements and in his instructions to his lawyers out of fear for himself and his family following the threats by CD and his shooting in June.

  30. The evidence concluded on 9 November 2004. Speeches then followed and the judge commenced on Thursday 11 November 2004, with the judge hoping to finish it during the morning of the following day.
  31. The appellant's attack on the judge during the course of the summing up

  32. On the following day, Friday 12 November 2004, when the Judge was reminding the jury of the evidence of the scenes of crime officer and the findings of the firearms expert in respect of the residue found upon the appellant's clothing, at about 11 am, the appellant vaulted from the dock. He ran in front of the jury and upon reaching the bench attacked the Judge and tore off his sash. The Judge managed to hold the appellant by his right shoulder and was forced to keep him at arm's length for several seconds before the appellant was restrained by police officers and security staff and removed to the cells.
  33. During the course of the attack the appellant shouted out the following as partly picked up on the recording of the proceedings;
  34. "I've got previous convictions [not for anything as serious as this], do you think you're going to stitch me up? (inaudible)... I'll stitch myself up, all right? I'm not guilty of this crime ... (inaudible). What's he doing? Look what I've been through. Everything I did was ... (inaudible) this man ... (inaudible) I'm not trying to escape. I'm an Englishman. I deserve a fair trial. I deserve a right trial."
  35. The judge retired to his room. Shortly afterwards, a Police Inspector and prosecution witness, PS Rixon, were brought in to see him in his room; the judge did not immediately recognise PS Rixon as he was dressed in security clothes, but he then recognised him when the Inspector identified him. Matters relating to the further provision of security for the remainder of the trial were discussed. The Judge made clear, during the course of his ruling on the application to discharge the jury, that in different circumstances, and if he had not been shocked at the time by what had taken place, he would probably have had the presence of mind to ask PS Rixon to leave the room.
  36. The jury were released from attendance until Monday 15 November. An application was made on behalf of the appellant that the jury be discharged; the judge dismissed the application. The judge continued with his summing up on Monday 15 November 2004; before resuming his summary of the evidence he directed them to try the case on the evidence which had closed on 9 November and to ignore what had happened on the previous Friday, 12 November 2004.
  37. The jury retired on the same day and returned their verdicts on 16 November 2004, as we have set out.
  38. The criticism of the judge's summing up

  39. We turn to the first issue in the appeal the criticism of the summing up of the judge
  40. Counsel for the appellant submitted before us that the judge had acted as "leading counsel for the prosecution" in a skilful way. The judge's conduct during the trial was described as follows by counsel for the appellant:
  41. "the learned judge was a model, injecting occasional shafts of humour which were greatly appreciated by the jury"

    It was submitted that by the time it came to summing up the case, the judge had the jury "eating out of his hands"; it was therefore even more important than usual that any views he had on the evidence were rigorously suppressed in the summing up. However, when the judge came to sum up the case and in particular the evidence, the judge had failed to meet the standards of fairness and balance to be expected of a judge; the summing up was selective, unfair and unbalanced. Even points not made by the prosecution were raised by the judge in his summing up. Eleven separate grounds of appeal were advanced in support of this submission. In oral argument, less emphasis was attached to some of these, but the very severe and serious criticism of the fairness of the judge was maintained.

  42. Our conclusion is clear. These points even viewed cumulatively do not begin to raise a question as to the fairness of the summing up. The severe and serious criticism of the judge is unfounded and without merit. Indeed it was, in fact, a careful, well prepared and entirely balanced and fair summing up, putting properly before the jury for their consideration the respective cases of the prosecution and the defence and summarising the evidence following the chronology of the events and reminding the jury of the respective cases on those events.
  43. Our reasons for this conclusion can be grouped by reference to the 11 grounds of appeal under 5 headings; we have added a sixth the criticism of the way in which the judge dealt with the evidence in relation to the other Audi (to which we have briefly referred) as it was accepted that this evidence was admissible when the appellant was maintaining the defence in his second defence case statement; the criticism of the way in which the judge dealt with this issue can therefore only be a further criticism of the summing up.
  44. (i) The identification evidence given by PC Hunt

  45. As we have set out above, PC Hunt had only seen the gunman's face for the short time when the gunman (who was wearing a hooded jacket) fired at him. Before he identified the appellant as the gunman, PC Hunt had seen a photograph of the appellant on about 20 occasions on his computer as he logged in, but his evidence was that this did not influence his identification. He had also been the subject of extensive cognitive interviews immediately after the events; these had been introduced into the evidence at the request of the defence.
  46. The first ground relied upon and grouped under this heading was the contention that the judge, when dealing with this evidence, was unfair as he took it upon himself to seek to bolster the evidence of PC Hunt by inviting the jury to consider whether he was a truthful witness, by misrepresenting the agreed evidence as to verisimilitude of the photograph of the appellant on the computer and by failing adequately to draw to the attention of the jury to the particular dangers where an identifying witness had seen a photograph of the suspect prior to an identification parade. We reject this criticism.
  47. i) In his summing up, the judge very properly warned the jury to take care in assessing the evidence of identification by PC Hunt and reminded them on several occasions to take care in relation to his evidence. His directions in this respect clearly followed the guidelines laid down by this court and were entirely fair.

    ii) He told the jury to bear very carefully in mind the defence case that the fact that PC Hunt had seen the appellant's picture on the computer on many occasions (as he logged in) may have influenced the identification made by the officer.

    iii) He told them to look for independent evidence that supported his identification and evidence that undermined it in the way laid down by this court.

    iv) It was therefore perfectly proper for the judge in a subsequent passage to remind the jury that the evidence in relation to the DNA on the clothing was, depending on the view they took, capable of supporting PC Hunt's identification of the appellant as the gunman.

    v) He did not misrepresent the evidence in relation to the computer photograph. He properly left it to the jury to consider how good a photograph it was of the appellant in the context to which it was relevant namely whether it had influenced the identification of the appellant made by PC Hunt.

  48. The second criticism related to what PC Hunt had said in his cognitive interview and evidence about the clothing worn by the gunman; this was to the effect that when the gunman had reached inside his coat he had seen something pale blue and underneath that something white or cream. It was submitted that this evidence was not consistent with the colour of the garments seen to have been discarded by the gunman. It was submitted that judge, in dealing with this evidence, had unfairly put forward an explanation helpful to the prosecution to the effect that PC Hunt may have seen the colour of a lower garment at collar level; he had accompanied his explanation by a physical demonstration involving him touching his wing collar. It was submitted that the entirety of the evidence was to the effect that the gunman's outer garment was open down to just below his chest, but fastened at neck level so only an oval of face was visible (not including the chin) and he could not have seen a pale blue or white or cream garment at collar level. The judge was therefore wrong to have made this point; it was also unfair and gave the defence no opportunity to comment. We reject this criticism.
  49. i) The judge correctly reminded the jury of the evidence of what PC Hunt said he saw as we have already set out.

    ii) His gesture in demonstrating the matter for the jury was intended to be helpful, as we think it was. However, even if, contrary to our view it was not, he had directed the jury that they were the judges of the facts and it did not matter what he, the judge, might think of the facts.

  50. The third ground of criticism was what was summarised as the selective approach of the judge to the running capabilities of the gunman and Amartey; this was, it was submitted, another example of his unfair approach. PS Rixon had described the gunman as not being a very fast runner, having a funny gait and not running athletically or being fit; he was a body builder rather than an athlete. PC Hunt's evidence was to similar effect, but he had the impression that the man was reaching inside his clothes for something. There was evidence that the appellant had been a good sprinter at school, suffered from no injury and regularly trained at a gym on speed work as opposed to body building. The defence relied on this as showing the gunman was not the appellant; the prosecution contended that the person the officers saw was a person with several layers of clothing and this explained his slowness in running. The judge after referring to these respective contentions commented that whether the clothing may have slowed the gunman up or the fact that fumbling for something may have slowed him up was something for the jury to consider.
  51. It was submitted that it was unfair for the judge to have commented on the effect of several layers of clothing on the gunman's ability to rum quickly, but then to have failed to make any reference to the clothing worn by Amartey, the speed at which he was able to run and PS Rixon's inability (although himself a runner) to catch Amartey notwithstanding the fact that the evidence was that Amartey was bigger in build and less athletic than the appellant and was wearing the same clothing as the gunman. Again it is necessary to examine this in context:
  52. i) The summing up fairly pointed out the difficulties in the prosecution case arising from the fact that the appellant was athletic and fit and the prosecution answer to that, namely the layers of clothing and the fumbling to find the gun.

    ii) He fairly put the respective cases. The judge did not have to contrast this evidence with the position of Amartey, as there was no evidence in relation to his athletic ability or that of the police officer that chased him.

    (ii) The footwear the gunman was wearing and the sock(s)

  53. PC Hunt gave a detailed description of the footwear of the gunman, the essence of which was that it was black, something like a casual shoe with some white trim to the sole and white stitching on the shoe and the toe. As we have set out, a sock or pair of socks were found near the route where the gunman had been; the CCTV evidence at the Humberstone Lodge showed the person agreed to be the appellant as wearing white footwear. It was the prosecution case that the sock(s) found were those discarded by the appellant who had worn them over white trainers; they invited the jury to infer that as Amartey had been identically dressed to the appellant and dirty wet socks had been found at the factory where Amartey was arrested, the jury could infer that the appellant had been wearing socks over his trainers and discarded them; this explained why what PC Hunt had seen was essentially black footwear and why the CCTV had shown the appellant in white footwear.
  54. The way in which the investigation was conducted in relation to the sock or socks identified to the police officer in the vicinity of the clothing was plainly open to criticism; no sock or socks were recovered and the jury had to rely on the recollections of the witnesses.
  55. The first ground which we have grouped under this heading was that the judge sought to undermine what the defence contended was a major discrepancy in the identification evidence, namely the detail of PC Hunt's description of the gunman's shoes, by emphasising the short period of time PC Hunt had to observe the shoes, despite the graphic detail PC Hunt was able to give. Again this criticism is misconceived. It was a matter for the jury to consider whether what PC Hunt saw were black socks over trainers or simply trainers; it was for them to decide if there was the discrepancy contended for by the defence. It was right for the judge to emphasise the short period of time PC Hunt had to see the gunman and the consequence that this point might have an effect in undermining the alleged discrepancies in the identification or the strength of the identification.
  56. The second criticism made was that the judge wrongly directed the jury that a pair of socks was seen by the scenes of crime officer (Mr Chauhan) and by one of the gardeners (Mr Bullough) on the route the appellant took. It was submitted that the evidence was inconsistent as to whether a sock or a pair of socks were seen; the judge failed to remind the jury of the evidence of the scenes of crime officer, Mr Chauhan, that he saw only one sock. In addition the judge made no reference to the evidence of PC Walkinshaw that the sock or socks he saw were so ancient and mouldy that he considered they were unlikely to have any link to the events. Again we can detect no unfairness on the part of the judge and this criticism is unfounded.
  57. i) We accept that the judge generally referred in his summing up to a pair of socks, but he did remind the jury of the evidence of Mr Chauhan that he could not recall whether it was one or two socks. Whether it was a sock or a pair of socks was a matter entirely for the jury.

    ii) The fact that the socks had not been recovered and the criticism of the police in this respect ("the somewhat shambolic state of affairs") was expressly pointed out; it was not necessary for the judge to remind the jury of the detail of the evidence of PC Walkinshaw which explained his decision. In any event, he had reminded the jury that if he left something out which they considered significant, they should take it into account.

  58. The third criticism was that the judge suggested that an interpretation of the evidence was that the socks recovered from the factory (attributed to Amartey) were similar to the socks not recovered, but observed by Mr Bullough and pointed out to PC Walkinshaw. It was submitted that there was in fact no evidence of similarity and that the judge had invited the jury to speculate that this added support to the proposition that PC Hunt was in fact mistaken in his description of the shoes and that the gunman had been wearing socks over shoes. This criticism is misconceived.
  59. i) It was an obvious inference open to the jury that Amartey had been wearing the socks that were wet and soil stained; the inference was that he had worn them over his trainers. There was evidence that the sock or socks seen near the route the gunman had taken were so mouldy and ancient to be ignored.

    ii) The judge in this part of his summing up was merely reminding the jury of the prosecution case that if the condition of Amartey's socks enabled the inference to be drawn that they had been worn over his trainers, it was open to them to draw a similar inference in respect of the appellant. The judge quite properly told them that that was a matter for them.

  60. The fourth criticism was that the judge put forward a suggestion (said never to have been made by the prosecution) that the appellant returned to the scene later that day to recover the discarded socks. Again this criticism is misconceived.
  61. i) The judge was in fact referring to the question put by the prosecution to the appellant in cross examination.

    ii) The judge very properly reminded the jury of the case made on behalf of the appellant in answer to that suggestion. No criticism could properly be made of what the judge said.

    (iii) The CCTV evidence

  62. As we have set out, it was agreed that the person shown on the CCTV images at the Humberstone Lodge was the appellant. During cross-examination the prosecution put to the appellant that the CCTV film of the appellant showed him with a gun in his hand; no evidence was adduced by the prosecution to support that suggestion. It was submitted that the judge had agreed before the summing up that he would tell the Jury to disregard that suggestion, but he failed to do so in clear and unequivocal terms.
  63. i) The CCTV evidence showed the appellant walking past the Humberstone Lodge fiddling with both hands at his waist band; the prosecution suggested to him in cross examination that he was putting the gun away.

    ii) It was not accepted by the prosecution that the judge agreed to deal with the matter in any particular way; nothing was said to the judge at the conclusion of the summing up in respect of this.

    We again cannot accept any criticism can be made of the judge in these circumstances; certainly there is nothing whatever to warrant this issue being used as an example of an unfair and unbalanced summing up.

    (iv) The gunshot residue

  64. It was submitted that the judge dealt with the evidence of a gunshot residue expert, Mr Keeley, in a partial and unbalanced manner; it was contended that he failed to remind the jury that by the time exhibit DC03 (the blue waterproof jacket rolled together with the T shirt) was examined Mr Keeley in August 2004 (as we have set out), it had been through a number of pairs of hands (probably 5) including a DNA scientist in December 2002, as evidenced by the exhibit label, before it reached him. Nor, it was submitted, were the jury reminded of Mr Keeley's evidence that he could not be certain (because of the way the two items were collected and packaged) that any discharge residue on the T shirt did not originate from the jacket. Again this criticism is unfounded:
  65. i) The judge did remind the jury of the delay and the condition in which they had been sent to Mr Keeley; the defence accepted the integrity and continuity of the exhibits.

    ii) The judge did remind the jury of the evidence of Mr Keeley in relation to the question as to whether the residue had originated from the jacket and that it was a matter for them to consider.

    (v) The gloss on the directions of law

  66. The first submission we have grouped under this heading was that the judge in directing the jury as to inferences to be drawn from silence in interview interpolated into the standard Judicial Studies Board direction his own comments which were only adverse to the appellant. We reject this criticism. The judge gave very clear directions on the law and on the nature of inferences. He reminded the jury very clearly of the appellant's explanations for remaining silent; it is simply not correct to say that the judge added comments that were only adverse to the appellant. The passages read as a whole were entirely fair.
  67. The second submission is that when giving the "lies" direction (R v Lucas [1981] QB 720) the judge failed to identify each and every lie which it was alleged the appellant had made; he had devoted disproportionate time to a lie (the purpose of his presence at the scene on the day of the shooting) which was not relevant to the issues the jury had to decide. We reject this criticism. The judge again gave very clear directions on the law relating to lies which were rightly not criticised. The appellant had put forward different defence case statements and told numerous lies; the judge identified the principal lies; it is difficult to understand how it can have been unfair to the appellant not to have spelt out each of the other lies. The lies in relation to the day of the shooting were important and it was right for the judge to have dealt with their significance; it was not disproportionate. To recite each and every lie could only redound to the disadvantage of the appellant; the principle to be adopted by the jury was clearly and entirely adequately explained.
  68. (vi) The evidence in relation to the other Audi

  69. We turn to consider the grounds in relation to the connection with an earlier Audi; it became clear no criticsm could be maintained in relation to the admissibility of this evidence when the appellant was disputing his presence at the scene as he did after the second defence statement was served and during the whole of the prosecution evidence. The only criticism maintained was the way in which the judge dealt with that evidence after the appellant accepted in his evidence that he was present at the scene.
  70. As we have set out in paragraph 19 above, on 31 January 2002 the police discovered another stolen Audi S3 vehicle from outside an address linked to the appellant. In the car the following items were found:
  71. i) two Donnay jackets which were identical to the ones found on the 25 February 2002, although DNA found on the jackets did not match that of the appellant or David Amartey;

    ii) a jacket with a damp T-shirt in the pocket containing DNA which matched that of David Amartey and a pair of black, soiled socks which were similar to those allegedly worn by David Amarty over his trainers on the 25 February 2002;

    iii) A T-shirt in the boot containing DNA that matched that of the appellant;

    iv) Two CD's, a coke can and a hotel receipt from which the appellant's fingerprints were recovered.

  72. The prosecution sought to adduce the above evidence and submitted that it was an affront to common sense not to admit it because:
  73. i) the similarity of the Audi found in January to the Audi used by those involved in the events of 25 February 2002;

    ii) the items found were highly probative as when compared with the items discarded on the 25 February 2002 the similarity was highly suggestive that the same individuals were responsible for the items on both occasions.

  74. The appellant applied to exclude the evidence in relation to the Audi seized on 31 January 2002 on the grounds of (a) relevance, and (b) it would be highly prejudicial in that it might suggest to the jury that the appellant and Amartey were robbers/armed robbers, or worse. It was not probative of the main issue to be decided which was to establish who had fired the gun and what intent that person had. In the course of argument, the judge made the point to counsel for the prosecution that having ordered a separate trial for the charge against Amartey and the appellant of conspiracy to rob on the grounds that it might be prejudicial to Amartey, evidence in relation to this Audi could be prejudicial as it brought back into the case the question of the association between the appellant and Amartey.
  75. The Judge in his ruling stated that he was initially attracted to both defence submissions, but had concluded the evidence was relevant and the probative value outweighed its prejudicial effect. The evidence relating to the Audi seized in January was probative of the fact that those who could be shown to be connected in more than one way with that vehicle and with the items of relevance in that vehicle were the same people involved with the Audi used in the incident on the 25 February 2002. The evidence was therefore relevant to establishing the presence of the appellant at the incident on 25 February 2002. He had also concluded that, given the evidence, which was admissible in relation to the discarding of the clothing and items found on the 25 February, the admission of the evidence of the Audi seized on 31 January was unlikely to add to the obvious curiosity that the jury might have in regard to the activities of the men in question. It could be argued that in any event the evidence could suggest that the two men in question might be sophisticated criminals which was unavoidable given the nature of the case. The evidence from the January Audi did not materially add to that picture and could not be said to add in a material way to the prejudice which might be caused to the appellant's case.
  76. In the summing up the judge dealt with the evidence briefly and reminded the jury that the prosecution contended it was relevant and significant because of the items found in it; whether the points made were of significance were a matter for the jury.
  77. In the grounds of appeal, criticism was made of the ruling. That was not pursued in the oral argument, rightly, because the evidence was clearly relevant to proof of the appellant's presence at the scene. In the oral argument, the criticism was directed to the way in which the judge dealt with the issue in summing up; it was contended that he should have directed the jury that, as the appellant had admitted his presence on 25 February 2002, the evidence in relation to the Audi seized on 31 January 2002 was no longer relevant to any issue open for decision and they should therefore have disregarded it. It was said that it was important to do this, given the risk of prejudice to the appellant as the jury might speculate that the appellant and Amartey were up to no good and not concentrate on the issue in the case as to whether it was the appellant who had fired the gun.
  78. We do not accept this submission. Although we accept that the primary purpose for which the evidence had been admitted was no longer relevant as the appellant had admitted his presence on 25 February 2002, his actions on the day were very much in issue; to those issues, the evidence, for the reasons advanced by the prosecution and referred to by the judge in his summing up remained relevant; the significance or weight to be attached to them, as the judge properly pointed out, was for the jury.
  79. Conclusion in relation to the summing up

  80. We have, quite apart from these specific criticisms, considered the summing up as a whole; we consider that the directions of law were lucid and clear, the respective cases of the prosecution and defence properly laid before the jury and a clear summary of the evidence was given. No criticism could properly or fairly be directed at this summing up. It was accepted the conduct of the trial was fair; we have concluded that the way in which the judge summed the case up was fair.
  81. This ground of appeal fails for the reasons we have set out; we therefore turn to the second main ground of appeal.
  82. The judge's decision to continue with the trial after the attack on him

  83. It was submitted to the trial judge that he should discharge the jury and order a fresh trial before another judge, as justice would not be seen to be done because PS Rixon had entered the judge's room shortly after the attack and because the jury would be unable to continue to try the case fairly in the light of what had happened. He was invited to ask the jury if they could continue to try the case fairly.
  84. The Judge dismissed the application to discharge the jury that same day, as we have stated; his reasons can be briefly summarised:
  85. i) He accepted that the jury would have found what happened a frightening and shocking experience.

    ii) It was not necessary for him to decide whether the actions of the appellant were, as the prosecution submitted, an example of the appellant trying to manipulate the proceedings.

    iii) There was an overriding principle that the entire system of criminal justice could not operate if, for whatever reason, a defendant was able to dictate to the Court that a trial should be aborted after committing a grave contempt of court and choosing to vault from the dock and attack a Judge. This principle was of equal standing with that which established that a defendant was entitled to a fair trial and should also be seen to have a fair trial. Otherwise any defendant who, rightly or wrongly, formed the view that things were not going his way could bring about a termination of the proceedings by his own deliberate behaviour.

    iv) He was perfectly satisfied that the appellant could continue to have a fair trial. It was unfortunate that PS Rixon had been in his room but there was no logical reason why his presence of just a few minutes, when discussing security matters, could have any bearing on whether the appellant could be seen to have a fair trial.

    v) Furthermore, although the jury might well have been affected in some way by the appellant's conduct they would be directed to ignore what had happened, not to hold it against him and to try the case on the evidence alone. In the circumstances of the present case it was not appropriate to enquire of the jury what (if any) views they had about what had occurred or whether their judgement had-been affected; the position in Brown (to which he was referred and to which we refer below) was different. This jury had already been told twice that there would be no further evidence and they would be further directed to ignore the incident. The Judge emphasised that what had occurred in the courtroom was entirely as a result of the appellant's own decision to improperly vault from the dock, run through the courtroom and attack the presiding Judge. In such circumstances he could not see how he could order otherwise than that the trial should continue.

  86. It was contended on the appellant's behalf to this court, as we have set out, that although the appellant's attack on the judge was inexcusable, it was explicable by reason of the unfairness of the summing up. In essence he was protesting that the summing up was depriving him of a fair trial and not seeking to abort the trial. In those circumstances the judge should have enquired of the jury whether in the light of the events in which they had undoubtedly been frightened, they felt they were unable to decide the case impartially.
  87. Particular reliance was placed on the appellant's behalf on the decision of this court in R v Brown (Robert Clifford) [2001] EWCA Crim 2828. Two jurors complained about remarks that had been made to them out the court during the luncheon adjournment by a person they presumed was the defendant's brother and a friend. Statements were taken from the two jurors; the jurors were asked as a body if what had happened would adversely affect their view of he evidence and if anyone thought he might be, he was to indicate that. No juror answered affirmatively. The judge was asked to discharge the jury on the basis that although there was no actual bias, there remained, judging the issue form the standpoint of a fair minded observer, a danger of bias. He declined to do so on the basis, that although the responsibility of the defendant for what had happened had yet to be investigated, there was a prima facie case that that was so; the jury could reach an unbiased verdict.
  88. The court in Brown referred to the decision of the Court of Appeal in R v Medicaments No 2 [2001] 1 WLR 700 where the effect of the European jurisprudence in relation to bias and the common law test laid down in R v Gough [1993] AC 646 in these circumstances was summarised in the following terms by Lord Phillips MR giving the judgment of the court:
  89. "85 .... The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.
    86 The material circumstances will include any explanation given by the judge under review as to his knowledge or appreciation of those circumstances. Where that explanation is accepted by the applicant for review it can be treated as accurate. Where it is not accepted, it becomes a further matter to be considered from the viewpoint of the fair-minded observer. The court does not have to rule whether the explanation should be accepted or rejected. Rather it has to decide whether or not the fair-minded observer would consider that there was a real danger of bias notwithstanding the explanation advanced. Thus in R. v. Gough, had the truth of the juror's explanation [we interpose that this was that she had not appreciated that she lived next to the defendant's brother and alleged co-conspirator until after the jury delivered its verdict] not been accepted by the defendant, the Court of Appeal would correctly have approached the question of bias on the premise that the fair-minded observer would not necessarily find the juror's explanation credible".
  90. In Brown, the court made clear at paragraph 31:
  91. "We fully understand any judge's reluctance to discharge a jury in circumstances for which a defendant bore material responsibility, although there are no doubt gradations of responsibility, starting with deliberate misconduct by a defendant aimed at achieving a discharge in circumstances where a trial was going badly, or at achieving a favourable verdict, and ranging downwards in seriousness from those situations. Counsel for the appellant thus, rightly in our view, accepted before us that it cannot be open to a defendant to obtain the discharge of a jury by deliberately creating some ground of aggravation or discord between him and the jury, whether inside or outside court. But, in order for a judge to rely on the appellant's responsibility for events occurring as a ground for not discharging a jury, the circumstances giving rise to such responsibility must, it seems to us, either be agreed or ascertained by the judge to exist. They cannot be assumed, simply because there is a prima facie case which the defendant disputes."
  92. In the circumstances in Brown, this Court concluded that that there was no firm basis for treating the defendant in that case as responsible for the problems with the jury; the dispute was unresolved and the judge had made an error in proceeding as he did. A fair minded and objective observer would therefore have had considerable doubt whether all the members of the jury would have been able so to compose themselves as to view the appellant and his defence in an appropriately dispassionate frame of mind.
  93. In the present case, two grounds were relied on as necessitating the discharge of the jury. The first was the presence of PS Rixon in the judge's room for a short while after the attack; the police sergeant had gone there with a more senior officer as an immediate reaction to the attack on the judge; given these circumstances and the fact that the judge was in the concluding stages of the summing up, it is fanciful to believe that any fair minded or dispassionate observer could have thought this had any affect on the fairness of the trial.
  94. The second ground was the judge's refusal to enquire of the jury into the effect of the appellant's actions on them. As we have set out above, the trial judge in this case concluded that the appellant's actions had been entirely the result of his own choosing. That cannot be disputed; it was the defendant's own decision to attack the judge as he was summing up. As we have said, however, it was submitted that the appellant considered he was not getting a fair trial and that his actions were therefore explicable; he was not trying to abort the trial, but merely protesting at what had happened. In those circumstances, there should have been an enquiry.
  95. In the present case, we cannot see how it could possibly be disputed that the appellant was responsible for what had happened. It was manifest from his actions. There was no need for an enquiry into his responsibility, as there was nothing to enquire into. Moreover, there could be no excuse for what he did; if the summing up had been unfair, the remedy lay in this court. No defendant can pre-empt that course by seeking to disrupt the trial.
  96. As we have already made clear, we reject the criticism made of the summing up; it was entirely fair. We are sure that the actions of the appellant were only explicable by his desire to abort the trial.
  97. It is self evident that no defendant can obtain from actions such as this the termination of his trial and a re-trial before a new tribunal. No fair minded observer would conclude that continuing with the trial was unfair or perceived to be unfair in such circumstnaces. There was therefore no enquiry to be made of the jury; they were bound to continue with the trial. They were properly directed to try the case on the evidence they had heard and pay no regard to the attempt to disrupt the trial.
  98. Indeed, as the judge correctly observed, if a defendant was able to stop a trial and obtain a new trial by acting in the way this appellant did, it would have the potential of making trial by jury in this country unworkable.
  99. This ground of appeal therefore also fails and is dismissed. We have also considered whether in all the circumstances the conviction is safe. We have no doubt but that it was.


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URL: http://www.bailii.org/ew/cases/EWCA/Crim/2006/470.html