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England and Wales Court of Appeal (Criminal Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Twomey & Ors, R. v [2011] EWCA Crim 8 (20 January 2011) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2011/8.html Cite as: [2011] 1 Cr App Rep 29, [2011] 1 WLR 1681, [2011] EWCA Crim 8, [2011] Crim LR 562, [2011] 1 Cr App R 29 |
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ON APPEAL FROM CENTRAL CRIMINAL COURT
Mr Justice Treacy
Strand, London, WC2A 2LL |
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B e f o r e :
MRS JUSTICE RAFFERTY DBE
and
MR JUSTICE RODERICK EVANS
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R |
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- v - |
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John Twomey Peter Blake Barry Hibberd and Glen Cameron |
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Mr G Wilson and Mr S Moses for Peter Blake
Mr S Stein QC and Miss E Goodall for Barry Hibberd
Miss K Brimelow and Mr D Rhodes for Glen Cameron
Mr S Russell Flint QC and Mr T Cray
Hearing dates : 9,10 and 11th November
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Crown Copyright ©
The Lord Chief Justice of England and Wales:
The Grounds of Appeal
(i) Treacy J's refusal to discharge the order for trial by judge alone (otherwise described as the AF point, referring to the decision of the Supreme Court in Secretary of State for the Home Department v AF and others (no 3) [2009] 3 WLR 74 (Hereafter referred to as AF (No3))
(ii) Treacy J's exposure on public interest immunity principles to material prejudicial to the appellants.
(iii) Treacy J's refusal to order severance.
(iv) Treacy J's reliance on the evidence of Brockwell, an accomplice.
(v) and (vi) Treacy J's rejection of submissions by Cameron that there was no case for him to answer and his reliance on insufficient circumstantial evidence on which to found Cameron's conviction.
The Background
The Relevant Applications to the Trial Judge
Ground One: Treacy J's refusal to order trial by jury
"Section 44…
(4)…there is evidence of a real and present danger that jury tampering will take place.
(5) …notwithstanding any steps (including the provision of police protection) which might reasonably be taken to prevent jury tampering, the likelihood that it would take place would be so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury."
Examples of cases where evidence of such a danger are identified may be found in sub-section (6), but as the statute makes clear, theses are examples only, and are neither definitive nor comprehensive.
"…that the jury is the lynch-pin of trial on indictment. The proper functioning of the jury is crucial to the fair and effective conduct of the trial. To that end statute regulates the composition of juries, the selection of jurors and the challenging of jurors. To that end also, almost infinite care is taken in directing the jury on the proper approach to their task…but all these rules and procedures are rendered of little effect if the integrity of an individual juror, and thus of the jury as a whole, is compromised. Such a compromise occurs when any juror, whether because of intimidation, bribery or any other reason, dishonours or becomes liable to dishonour his or her oath as a juror by allowing anything to undermine or qualify the juror's duty to give a true verdict according to the evidence."
He referred to efforts to influence the verdict of the jury by unlawful means as "jury nobbling" and he identified the solution eventually adopted by Parliament in the provisions which we are currently concerned.
"Where an attempt to nobble a jury is apprehended, one possible response would be to dispense with a jury altogether … "
"While we can understand the concern of the appellant and his advisers, there is nothing in the procedure adopted in relation to jury protection which causes us to consider this conviction unsafe".
Grounds 2 and 3 Public Interest Immunity and Severance
"(a) The process was conducted strictly in accordance with well established principles and counsel for the Crown was at pains to ensure that the judge was fully informed of all relevant considerations.
(b) No single piece of undisclosed material could have advanced the defence of any of the appellants, nor undermined the case for the prosecution against any of them.
(c) No single piece of undisclosed material could be said to have constituted even potential prejudice against any defendant. All the material we have seen related to defendants who were unconnected to this trial, or where it referred to any of the defendants, was made subject of admissions by the Crown. "
The Fourth Ground (Brockwell)
"The question for me in the end is whether his evidence is reliable and truthful, notwithstanding those significant attacks which can be made on his credibility and matters raised in relation to his handling by the police."
This was a question of fact, not law, which he proceeded to consider, by examining all the relevant submissions made on Brockwell's behalf.
"…Notwithstanding the matters raised, Brockwell was providing a reliable account as opposed to one fabricated in order to satisfy the police and thereby obtain a reduced sentence. "
Grounds 5 and 6: Cameron (no case to answer and conviction unsafe)
"Cameron…had a designated part…to drive the robbers to…Spout Lane and…take them away afterwards. Earlier…the Crown appeared to suggest that Cameron may have been one of the robbers who …entered Menzies… By the time Cameron came to give evidence the allegation…was that he acted as the driver…his participatory role in the meetings which Twomey had with Brockwell satisfies me that not only did he have knowledge of what was to take place, but also he was to have a role in the events. The role of driver ascribed to Cameron by the Crown appears to me to make sound logical sense. Cameron's previous good character, and in particular absence of violence from his record, suggests strongly to me that he would have been unlikely to be allocated the role of a person who had to enter premises, threaten or intimidate staff, and carry a firearm."
Conclusion
Sentence