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Cite as: [2003] EWCA Crim 3525

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Neutral Citation Number: [2003] EWCA Crim 3525
No: 200300716/B3

IN THE COURT OF APPEAL
CRIMINAL DIVISION
Neutral Citation No: [2003] EWCA Crim 2846.

Royal Courts of Justice
Strand
London, WC2
Thursday, 20th November 2003

B e f o r e :

LORD JUSTICE MANTELL
MR JUSTICE ELIAS
MR JUSTICE JACK

____________________

R E G I N A
-v-
PAUL KELLEHER

____________________

Computer Aided Transcript of the Stenograph Notes of
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____________________

THE APPELLANT APPEARED IN PERSON
MR G LADENBURG appeared on behalf of the CROWN

____________________

HTML VERSION OF JUDGMENT
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    (10.30)
  1. LORD JUSTICE MANTELL: The Court as presently constituted heard this appeal on 3rd September. That was, of course, during the long vacation. It was indicated then that judgment would be reserved to be handed down at a later date. In fact the judgment in draft was sent out to counsel on 17th October. It was indicated that it was due to be handed down formally on 23rd October.
  2. In the meantime the Court came to appreciate that there might be a point which needed to be argued which had not been argued on the first occasion, namely, having regard to the conclusions reached by this Court, whether it could still be said that the conviction was safe. Accordingly, the Court took the slightly unusual step of informing counsel then appearing for the appellant that it would be prepared to entertain further argument on a date convenient to herself, that date being today, with argument being limited, of course, to the one matter.
  3. It appears, though we will hear explanation in a moment or two no doubt, that in the meantime the appellant has dispensed with the services of leading counsel. So it would appear that he is here today to represent himself.
  4. THE CASE LAWYER: I am Dr Paul Burns, the case lawyer. I am actually the case lawyer.
  5. LORD JUSTICE MANTELL: I am so sorry. Mr Kelleher is not here today?
  6. MR LADENBURG: No, my Lord.
  7. LORD JUSTICE MANTELL: That is most unfortunate. We are confident, are we, that he was given due notice of this hearing?
  8. THE CASE LAWYER: Certainly he was aware of the hearing date because he had actually been in discussion with his legal representatives and had actually seen them and he was aware that this was the date.
  9. LORD JUSTICE MANTELL: Well, it is doubly unfortunate then that he should no longer, so it appears, be represented, or present. I think the Court will adjourn for, perhaps, ten minutes or so to allow him a further opportunity to make an appearance. (Pause). The Court has been informed, and perhaps this ought to go on the transcript, that someone who knows Mr Kelleher is outside the Court and his understanding is that Mr Kelleher is intending to attend. We will rise for a little while.
  10. (10.33)

    (Short adjournment)

    (10.38)

  11. LORD JUSTICE MANTELL: Before you arrived, Mr Kelleher, I was explaining that the hearing of this appeal took place on 3rd September.
  12. THE APPELLANT: Yes, my Lord.
  13. LORD JUSTICE MANTELL: It was then indicated that the judgment would be reserved to be handed down later. The draft judgment was sent out to counsel on 17th October, just over a fortnight, after the start of term, and it was due to be handed down on 23rd October.
  14. In the meantime the Court appreciated that in the light of its decision, as indicated in that draft judgment, it may be that counsel then appearing for you would wish to have an opportunity to argue, or submit that, notwithstanding the provisional judgment arrived at, it would not be safe to uphold the conviction. Accordingly, I took the unusual step of speaking to your leading counsel, then acting on your before, and said that we would be prepared to hear further argument in respect of that point, and that point alone, and today was set aside for the further hearing. Our understanding, which you will be able to confirm or not as the case may be, is that in the meantime you have dispensed with the services of counsel?
  15. THE APPELLANT: My Lord, I am left with no real alternatives. As these matters were pressed, I was pressed into a corner where my life is completely unsustainable.
  16. LORD JUSTICE MANTELL: As to whether that was a wise decision or not we express no opinion, but we are now giving you, in place of your counsel, the opportunity to make some submissions, if you think fit, as to that one point and that one point. Do you wish to make any?
  17. THE APPELLANT: Yes, my Lord. ...
  18. (Submissions followed)
    JUDGMENT
  19. LORD JUSTICE MANTELL: In this appeal the Court is invited to examine, once again, the breadth of the defence of "lawful excuse" to a charge of criminal damage. We say "once again" because the question has previously been considered by this court in R v Hunt (1978) 66 Cr App R 105, R v Ashford and Smith (1988) Crim LR 682 and R v Hill and Hall 89 Cr App R 74. The Court is also asked to consider in what circumstances, if any, a judge is entitled to direct a verdict of guilty.
  20. It comes about in this way. Paul Kelleher has strong and sincerely felt concerns about certain policies of the United States, the United Kingdom and other western countries which, he foresees, are leading the world towards its eventual destruction. He is particularly troubled about the future of his infant son and others in like circumstances. Among his bugbears are the prevailing materialistic values and the influence which major corporations seem to be able to exercise over supposedly democratic governments. Baroness Thatcher is among those he holds responsible.
  21. So it was on 3rd July 2002 he visited the Guildhall Gallery, which houses the Corporation of London art collection, armed with a cricket bat and with the intention of knocking the head off a statue of Lady Thatcher, that statue being on temporary loan from the House of Commons. The cricket bat proving ineffectual, Mr Kelleher took hold of a metal stanchion, which supported the cordon round the statue, and with that was able to achieve his purpose. We understand that the statue was damaged beyond repair and will cost 150,000 to replace.
  22. Having done what he set out to do, Mr Kelleher calmly awaited the arrival of the police. To them he explained his philosophy and his motives. At one point he said, "I fear genuinely for the future of my son. I don't believe he has a very rosy outlook to life". He made it plain that in acting as he did he was seeking publicity for his views in the hope that, if accepted by others, they might bring about improvements in the world situation.
  23. He was charged with criminal damage. In the first instance he stood trial at Southwark Crown Court before Aikens J and a jury. He represented himself. None of the Crown's evidence was in dispute and all of it was read. In his defence Mr Kelleher read from a prepared statement in the course of which he once again explained his philosophy and his motives. This passage occurs:
  24. "If humanity is so intent of going to its own destruction then this is my play for the Crown and this is me being intent going to my own destruction. I do not want my children to grow up in a world where the order of the day is for mankind to act like dangerous parasites, stripping all that is good from each other and this fine planet earth. To do so is to leave nothingness, unless you call living hell something. 'Thy kingdom come thy will be done on earth as it is in heaven' - really!"
  25. The learned judge was troubled about how to leave the matter to the jury. He raised it with prosecuting counsel. He wanted to know whether "lawful excuse" was an available defence and whether it should be left to the jury. Prosecuting counsel conceded that on a broad interpretation of the statutory provision, read in conjunction with the Human Rights Act 1998 and Article 1 of Protocol 1(1) to the Convention for the Protection of Human Rights and Fundamental Freedoms as amended, the defence was available. Aikens J summed up accordingly. The jury failed to reach a verdict and was discharged.
  26. The retrial took place on 22nd January this year, again at Southwark Crown Court, but this time presided over by His Honour Judge Bathhurst-Norman. HHJ Bathhurst-Norman took the view that what Mr Kelleher was saying, in all material respects being no different from what he had said in the earlier trial, did not engage the statutory defence available under the Act. He so ruled and in due course directed the jury as follows:
  27. "I have used the words 'lawful excuse'. I have to decide as a matter of law whether there is anything in the defendant's evidence which is capable of amounting to a lawful excuse. I have to tell you as a matter of law, his evidence and everything he has said, clearly very sincerely, clearly very honestly, but it does not amount to a lawful excuse. As matter of law his reasons for his action by way of political beliefs, anti-globalisation belief, cannot -- his need to protect his son as he sees it -- amount to a lawful excuse. I say that because even though he honestly believes that what he did was justified by his dislike of Mrs Thatchers' policies in tying us too close to the United States in pursuing the aims of globalisation, and as he sees it, in the need to protect the safety and future of his son, he had no property belonging to himself which was in need of protection and no right or interest which was in immediate danger so as to need immediate protection. Even if he had such a right, the means adopted -- in other words knocking the head of the statute off -- were not reasonable having regard to all of the circumstances, that action in itself was not capable of protecting anyone's property, it was not even going to begin to achieve his objective.
    The law in this field is really within a very narrow [compass]. Let me give you a simple example. If, for instance, I see the wall of your house bulging so far that I think it is going to fall down and damage the wall of my house and I go out and knock it down, that would be me acting in protection of my own property which was in immediate danger because of the fear of your wall falling down on it. Another simple example: If I have a right of way across your land and you put up a gate to stop me exercising it, then I will be acting in protection of my proprietary interests in that right of way if I knocked the gate down. That is the field in which lawful excuse arises. It is defined very narrowly within the Statute. Therefore, in the light of what the defendant admits that he did, I must direct you that there can only be one verdict in this case and that is one of guilty. The case is nothing to with whether you like or dislike Mrs Thatcher: Whether you like or dislike her policies, it is simply a question of, whether as a matter of law it amounts to criminal damage."
  28. Mr Kelleher was convicted and sentenced to a term of three months' imprisonment. He now appeals against that conviction with leave of the single judge.
  29. The grounds relied upon are that: (i) the judge was wrong to rule as a matter of law the defence was unavailable; and (ii) , in any event, was wrong to direct the jury to return a verdict of guilty.
  30. We take those grounds in turn. We begin by setting out the relevant statutory provisions. Section 1(1) of the Criminal Damage Act 1971 provides:
  31. "A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence."
  32. It is further provided by section 5 as follows:
  33. "5(1) This section applies to any offence under section 1(1) above [simple criminal damage] ...
    (2) A person charged with an offence to which this section applies shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse --
    (a) ...
    (b) if he destroyed or damaged or threatened to destroy or damage the property in question or ... in order to protect property belonging to himself or another or a right or interest in property which was or which he believed to be vested in himself or another, and at the time of the act or acts alleged to constitute the offence he believed --
    (i) that the property, right or interest was in immediate need of protection; and.
    (ii) that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances.
    (3) For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held.
    (4) For the purposes of subsection (2) above a right of interest in property includes any right or privilege in or over land, whether created by grant, licence or otherwise.
    (5) This section shall not be construed as casting doubt on any defence recognised by law as a defence to criminal charges."
  34. In R v Hunt the appellant had been charged with setting fire to a guest room in an old people's home. He claimed that he had done so to draw attention to a defective fire alarm system. He sought to set up a statutory defence under section 5(2) by claiming to have had a lawful excuse in doing what he did. The trial judge withdrew the defence from the jury. In giving the judgment of this Court Roskill LJ, as he then was, said at page 108:
  35. "I have said that we will assume in his favour that he possessed the requisite honest belief. But in our view the question whether he was entitled to the benefit of the defence turned upon the meaning of the words 'in order to protect property belonging to another'. It was argued that those words were subjective in concept, just like the words in the latter part of section 5(2)(b) which are subjective. We do not think that is right. The question whether or not a particular act of destruction or damage or threat of destruction or damage was done or made in order to protect property belonging to another must be, on a true construction of the statute, an objective test. Therefore we have to ask ourselves whether, whatever the state of this man's mind and assuming an honest belief, that which he admittedly did was done in order to protect this particular property, namely the old people's home in Hertfordshire? If one formulates the question in that way, in the view of each member of this court, for the reasons Slynn J gave during argument, it admits of only one answer: this was not done in order to protect property; it was done in order to draw attention to the defective state of the fire alarm. It was not an act which in itself did protect or was capable of protecting property."
  36. That approach was followed in Ashford and Smith where the appellants had attempted to cut the wire fence surrounding an American Air Force base to demonstrate their opposition to nuclear weapons. They were charged with possession of an article with intent to damage property. The judge ruled that the purported reason for having the articles did not fall within the definition of a lawful excuse and, therefore, no evidence to that effect could be called. A ground of appeal was that the judge erred in so ruling. Following the reasoning in Hunt the Court held that whether or not an act was done or made in order to protect property belonging to another must be, on the true construction of the statute, an objective test and the judge had ruled correctly.
  37. In a trenchant criticism of the decision Professor Sir John Smith in his commentary to the report beginning at page 683 suggested:
  38. "... that the result could only be achieved by 'a gross distortion of the words of the statute, reading it as if the words, 'in order to', read, 'by an act likely to.'"
  39. Nevertheless, the passage from Roskill LJ's judgment was cited with approval by the Court in R v Hill and Hall. That was another case where the applicants, for such they were, were separately tried on an indictment charging possession of an article with intent to damage property contrary to section 3 of the Criminal Damage Act 1971. In each case the article in question was a hacksaw blade and it was the prosecution case that each of the applicants intended to use one to cut part of the perimeter fence of a United States Naval Facility. The defence in each case was one of lawful excuse. It was put forward that the actions were aimed at forcing the United Kingdom to abandon nuclear weapons; thereby saving their own property and that of their neighbours from destruction.
  40. The trial judge in each case had directed the jury to convict on the basis, first, that the causative relationship between the acts and the alleged protection was so tenuous and nebulous the acts could not, objectively, have amounted to protection. On applications to appeal against conviction it was contended that the test was a subjective one and that it should have been left to the jury as a question of fact as to what in each case the applicant believed. A further point was taken that the judge had been wrong to direct the jury to convict. That second ground is a matter to which we shall have to return.
  41. Having stated that the decision in Hunt was correctly decided and, in any event, binding upon the Court, Lord Lane, Chief Justice, giving the judgment of the Court, went on to say:
  42. "There are two aspects to this type of question. The first aspect is to decide what it was that the applicant in this case, Valerie Hill, in her own mind thought. The learned judge assumed, and so do we, for the purposes of this decision, that everything she said about her reasoning was true. I have already perhaps given a sufficient outline of what it was she believed to demonstrate what is meant by that. Up to that point the test was subjective. In other words one is examining what is going on in the applicant's mind.
    Having done that the judges in the present cases and the judge particularly in the case of Valerie Hill turned to the second aspect of the case and that is this. He had to decide as a matter of law, which means objectively, whether it could be said that on those facts as believed by the applicant, snipping the strand of wire, which she intended to do, could amount to something done to protect either the applicant's own home or the home of her adjacent friends in Pembrokeshire.
    He decided again quite rightly in our view that that proposed act on her part was far too remote from the eventual aim at which she was targeting her actions to satisfy the test."
  43. We, too, are bound by the decisions in Hunt, Ashford and Smith and Hill and Hall. If it were necessary to do so we would also agree with the construction of the section adopted by this Court in those cases. Of course, Professor Sir John Smith is right to say that the words "in order to" involve a consideration of a defendant's state of mind, but what a judge has to decide is whether the defence of lawful excuse is raised on the evidence. In other words, does the declared or stated purpose engage the subsection?
  44. In our view the trial judge was right to conclude that the appellant's stated purpose in damaging the statue did not raise the defence of lawful excuse for the jury's consideration. If we have any criticism at all of his direction it is simply that it fails to make reference to property belonging to "another" or a right or interest in property which he believed to be vested in "another". It seems to us, however, that on the evidence of the appellant himself the defence was unavailable whether by reference to his own property or right or interest, or that of anyone else. Accordingly, we would hold that the judge was entitled, and indeed correct, to withdraw the defence from the jury.
  45. But was he entitled and correct to direct the jury as he did? So long as a defendant remains in the charge of the jury he or she can only be acquitted or convicted by the verdict of the jury. If authority is required for that trite proposition see R v Heyes [1951] 1 KB at 29. Where, as not uncommonly happens, a defendant having put himself upon his country (ponit se super patriam) wishes to change his plea to one of guilty, then, with leave of the judge, the indictment may be put again and a new plea entered in the presence of the jury, following which the jury may be invited to return a verdict there and then. An alternative, sometimes employed, might be to discharge the jury and allow the defendant to be re-arraigned. That, however, leaves open the possibility of abuse by a manipulative defendant. Even where there has been a change of plea from not guilty to guilty to a count on the indictment and that has occurred in the presence of the jury it is not the usual practice (query whether it could ever be the correct practice) for the judge to direct a verdict of guilty. He or she will usually invite someone to act as foreman, explain what has happened, say that what they have listened to may seem to them to be the strongest possible evidence of guilt, invite consultation without retirement and then to take a verdict which invariably will be one of guilty.
  46. To that extent the practice differs from that adopted following a ruling of "no case". There the judge will direct an acquittal and the verdict is returned "by direction of the judge". The distinction was underlined in the well-known case of DPP v Stonehouse (1977) 65 Cr App R 192, [1978] AC 55 and particularly in the speech of Lord Salmon at pages 219 and pages 79-80 respectively:
  47. "Whilst there is no doubt that if a judge is satisfied that there is no evidence before the jury which could justify them in convicting the accused and that it would be perverse for them to do so, it is the judge's duty to direct them to acquit. This rule, which has long been established, is to protect the accused against being wrongly convicted. But there is no converse rule -- although there are some who think there should be."
  48. The majority decision in that case was to the effect that there can never be circumstances in which it would be right for a judge to direct a conviction in terms. To continue the quotation from Lord Salmon's speech:
  49. "If the judge is satisfied that, on the evidence, the jury would not be justified in acquitting the accused and indeed that it would be perverse of them to do so, he has no power to pre-empt the jury's verdict by directing them to convict. The jury alone have the power to decide that the accused is guilty. In an appropriate case (and this was certainly such a case) the judge may sum up in such a way as to make it plain that he considers that the accused is guilty and should be convicted. I doubt however whether the most effective way of doing so would for the judge to tell the judge to tell the jury that it would be perverse for them to acquit. Such a course might be counter-productive."
  50. R v Stonehouse was followed and applied by this Court in R v Gent (1989) 89 Cr App R 247. In that case Lloyd LJ, as he then was, giving the judgment of the Court said.
  51. "Whether or not there is still a category of rare cases where the judge is justified in directing a conviction, it is perhaps unnecessary to decide. There is no reference to any such cases in the speeches of the majority in DPP v Stonehouse; and the existence of such a category is inconsistent with the thrust of Lord Keith's speech at p.232 and p.94 respectively.
    Our own view would be that, if such a category exists at all, it must be confined to wholly exceptional cases where, for example, there has been something in the nature of a formal admission of guilt. The fact that on the evidence, including the evidence of the defendant himself, only one verdict is possible, does not justify the judge in directing the jury to convict. If the judge takes the view the defendant has, in the course of his evidence admitted his guilt then it is always open to him to give the defendant an opportunity, in the absence of the jury, to change his plea. But if he maintains his plea, the defendant is entitled to the verdict of a jury, even though in the view of the judge, an acquittal would be perverse."
  52. Clearly the Court was suggesting that the opportunity to change plea, not any re-arraignment, should be in the absence of the jury. The usual practice was and remains that any change of plea should be tendered in the face of the jury who would then be in a position to act upon it in the manner previously indicated.
  53. Interestingly, Gent was decided the year following the decision of this Court in Hill and Hall. Hill and Hall does not appear to have been cited in argument and certainly is not referred to in the judgment. In each of the cases of Hill and Hall the judge had in effect directed a verdict of guilty. The Court referred to the case of Stonehouse and to the passages which we have recited at an earlier place in this judgment, making the distinction between a direction to convict based on the Crown's affirmative case and the withdrawal of a defence which was unsupported by evidence. This is what was said by the Lord Chief Justice at page 81:
  54. "The judge here was dealing with the defence of lawful excuse. Certainly the prosecution had to destroy that defence, but it was no part of their affirmative case. It bore a similarity to the defence of self-defence, and, as it that case, so in this, there was no need for the judge to direct the jury on those matters unless there was some evidence capable of constituting that defence. In fact there was none, as the judge in each case rightly held."
  55. The Court then went on to say that there was no other issue and in that case the judge had been entitled to direct a verdict of guilty. For our part we can quite see the distinction between a ruling that a defendant has not satisfied the evidential burden necessary to raise a particular defence which may lead, quite properly, to the issue being removed from the jury's consideration, but, as it seems to us, in every case it will be necessary for the prosecution to establish an affirmative case. So even though it may be ruled, quite correctly, that the defence of lawful excuse is not available, it is still for the Crown to prove to the satisfaction of the jury that the offence of criminal damage has been committed. It matters not that the evidence is overwhelming, or even that by his evidence the appellant has seemingly admitted all the constituents of the offence; it remains for the jury to return its own voluntary verdict. For that reason and in this one respect we consider that the Court in Hill and Hall was in error.
  56. How does that affect the present appeal? This was not a case where the judge directed the jury in terms to convict. The jury was invited to retire, which they did, and in due course returned a verdict of guilty. It is the case, however, that the passage from the summing up already quoted includes the following:
  57. "Therefore, in the light of what this defendant admits that he did, I must direct you that there can only be one verdict in this case and that is one of guilty."
  58. Now whilst it is true that any other verdict might be regarded as perverse, and the judge would certainly have been entitled to say "you may think that there can only be one verdict in this case and that is one of guilty", it can hardly be denied that the words used could be taken as a direction to convict. We can well understand having read Hill and Hall how this conscientious judge came to express himself as he did and we certainly do not criticise his withdrawal of the defence of "lawful excuse". But in our view the general issue of guilt or innocence should have been left to the jury and the words used crossed the line which separates forceful comment from a direction to convict.
  59. One question remains. Was this conviction safe? The evidence was truly overwhelming. The appellant admitted the constituents of the offence. There was no defence available to him. Following a proper direction a verdict of guilty was or should have been inevitable. However, there is a difficulty. As was noted in R v Davis & Others (2001) 1 Cr App R 115 at 130 and following, there relying upon what was said in Hickey & Others CA July 30 1997, this Court is not concerned with the guilt or innocence of the appellant, but only with the safety of the conviction. As was said by Roch LJ giving the judgment of the court in Hickey & Others:
  60. "This may, at first sight, appear an unsatisfactory state of affairs, until it is remembered that the integrity of the criminal process is the most important consideration for courts which have to hear appeals against conviction. If the trial process is not fair, if it is distorted by deceit or by material breaches of the rules of evidence or procedure, then the liberties of all are threatened."
  61. As has already been noticed, so long as the defendant remains in charge of the jury only the jury can return a verdict of guilty or not guilty. Where there has been a direction to convict, therefore, can it be said that the verdict returned is the voluntary and therefore the true verdict of the jury and, further, if not, in such a case can it be said that there has been a conviction, let alone a safe conviction?
  62. In R v Stonehouse the complaint had been that the trial judge had failed to leave to the jury one of the constituents of an attempt. It was held that he had directed them to find that constituent proved. Nevertheless the Court was invited to apply the proviso to section 2(1) of the Criminal Appeal Act 1968. Among the majority Lord Salmon said this (65 Cr App R at 219; (1978) AC at 79 respectively):
  63. "Anyone in the judge's position might easily have made the slip which he did of not leaving the jury to decide whether the facts proved amounted to the attempt charged. However obvious it may be that they did and that the accused was guilty, technically, the judge should still have left it to the jury to decide whether or not the evidence established the attempt charge and have found him guilty or not guilty accordingly. The technical slip on the part of the judge certainly made no difference to the result of the trial. There is no possibility that any reasonable jury could have had the slightest doubt that the facts proved did establish the attempt charged and accordingly would certainly have brought in a verdict of guilty. I am completely satisfied that no miscarriage of justice could have resulted from what technically was a misdirection and that therefore the proviso to section 2(1) of the Criminal Appeal Act 1968 should be applied."
  64. Lord Edmund Davis (pages 227 and 89 respectively) stated:
  65. "In several cases of misdirection of the kind which occurred in the instant case, the conviction has been upheld where the court was convinced that, on a proper direction, the jury would have come to the same conclusion. Applying that generally accepted test to the present case and being satisfied that no miscarriage of justice resulted from the misdirection complained of, I would apply the proviso."
  66. Lord Keith, also being of the "majority" and having agreed that it was never appropriate to give a direction to convict (pages 232 and 94 respectively), continued:
  67. "While that is my view upon the matter of principle, I cannot in the circumstances of the present case regard the misdirection as being other than purely technical. I do not consider that in these circumstances any reasonable jury could have come to the conclusion, having accepted the evidence as to what the appellant did, that his actions were merely preparatory to an attempt such that was charged. I am therefore of the opinion that this is a clear case where no miscarriage has resulted from the misdirection, and which is therefore a proper one for the application of the proviso to section 2(1) of the Criminal Appeal Act 1968."
  68. It is clear that in R v Gent, the Court saw no difficulty in principle in applying the proviso although it was unpersuaded to do so having regard to the state of the evidence.
  69. We do not think that the approach has been changed significantly by the amendment to section 2(1) which requires the Court to allow an appeal where, for whatever reason, the conviction is considered unsafe. In Davis and Others the Court, having reviewed a number of authorities, attempted to extract certain principles. These appear at pages 131 and 132 of the judgment:
  70. "The court is concerned with the safety of the conviction. A conviction can never be safe if there is a doubt about guilt. However, the converse is not true. A conviction may be unsafe even where there is no doubt about guilt but the trial process has been 'vitiated by serious unfairness or significant legal misdirection' as in Smith (Patrick and Others) and in Weir. Usually it will be sufficient for the court to apply the test in Stirland (1945) 30 Crim App R 40 1944 AC 315, which as adapted by Mr Perry, might read:
    'Assuming the wrong direction on law or the irregularity had not occurred and the trial had been free from legal error, would the only reasonable and proper verdict have been one of guilty?'"
  71. Applying that test and following the powerful precedent provided by the House of Lords in R v Stonehouse and notwithstanding the logical difficulty to which we have referred, we conclude that the conviction of Mr Kelleher is to be regarded as "safe". Accordingly his appeal against conviction must be dismissed.
  72. LORD JUSTICE MANTELL: Thank you both for attending.
  73. THE APPELLANT: My Lord, may I have a few moments of the Court's time for section 12(4) of the Human Rights Act, freedom of expression, and 13(1), freedom of thought, conscience and religion, please?
  74. LORD JUSTICE MANTELL: Have you got an application to make, Mr Kelleher?
  75. THE APPELLANT: Yes, my Lord.
  76. LORD JUSTICE MANTELL: What is it?
  77. THE APPELLANT: The application is that we now have to move this forward.
  78. LORD JUSTICE MANTELL: We have what?
  79. THE APPELLANT: To move this forward, my Lord. I suppose the most direct route would be the House of Lords next and then to the European Court of Human Rights. I am finding it very difficult to accept --
  80. LORD JUSTICE MANTELL: I think -- someone will help me I am sure -- I think you have got 14 days in which to prepare a question which you consider suitable for consideration by the House of Lords and then you can come back to this Court and ask, first of all, for us to certify that question as being of general public importance, and, secondly, to ask for leave to appeal to the House of Lords. If we certify it as being of general public importance and refuse leave, you can then seek leave from the House of Lords itself, Mr Kelleher. Now, it is really very important that you try to get a question drafted in the sort of form which the Court considers sensible. You have --
  81. THE APPELLANT: I don't consider this Court sensible, my Lord.
  82. LORD JUSTICE MANTELL: There is no need to be rude.
  83. THE APPELLANT: My Lord, I am not trying to be rude. I have the utmost respect for the Court. This Court has the best customer service I have ever seen in this Court, my Lord. It is beyond -- I am humbled by the customer service, but I don't mean to be rude at all, my Lord.
  84. LORD JUSTICE MANTELL: You don't agree with the judgment, Mr Kelleher.
  85. THE APPELLANT: Of course I don't, my Lord.
  86. LORD JUSTICE MANTELL: That is your privilege.
  87. THE APPELLANT: But, my Lord, it's in your opinion then that Lord Aikens was wrong?
  88. LORD JUSTICE MANTELL: I am not answering questions, Mr Kelleher. I am advising you as to your next course.
  89. THE APPELLANT: On 16th September 2002 in Lord Aikens' court universal law was declared. That was binding. That is effective law and it is binding now.
  90. LORD JUSTICE MANTELL: You have heard what I said, Mr Kelleher, please be quiet for a moment. You've heard what I have said. If you want to take the matter further then you have to follow the procedure which we have indicated. Now you may think it sensible to try to get the help of Miss Humphreys who represented you in drafting a question which you think is suitable for consideration by the House of Lords.
  91. THE APPELLANT: But the House of Lords don't understand, my Lord, that respect, trust, peace, care, family, faith, hope and happiness.
  92. LORD JUSTICE MANTELL: Mr Kelleher, that's all I intend to say to you. The Court will rise.
  93. THE APPELLANT: I didn't mean to offend you, my Lord.
  94. (Court adjourned)


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