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Neutral Citation Number: [ 2014] EWCA Crim 2506 |
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Case No: 201202201/A2 |
IN THE COURT OF
APPEAL
(
CRIMINAL
DIVISION)
ON
APPEAL
FROM WOOLWICH
CROWN
COURT
Mr Justice Henriques
T20117718
|
|
Royal Courts of Justice Strand, London, WC2A 2LL |
|
|
04/12/2014 |
B e f o
r
e :
LORD JUSTICE TREACY
MR JUSTICE JAY
and
MRS JUSTICE SIMLER DBE
____________________
Between:
|
Gary Wilson
|
Appellant
|
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- and -
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|
|
R
|
Respondent
|
____________________
M.Mansfield QC & M.McDonald (instructed by Saunders Law) for the
Appellant
N. Johnson QC (instructed by CPS) for the
Respondent
Hearing dates : 20 November
2014
____________________
HTML
VERSION
OF JUDGMENT
____________________
Crown
Copyright ©
Lord Justice Treacy :
Introduction
- This is a
renewed
application
for leave to
appeal
against sentence. The
applicant
pleaded guilty at Liverpool
Crown
Court on 9th December 2011 to two counts of conspiracy. Count one was a conspiracy to possess firearms with intent to endanger life. Count two was a conspiracy to damage property with intent to endanger life. Henriques J sentenced the
applicant
at Woolwich
Crown
Court on
16th
March 2012 on each count concurrently to a term of life imprisonment with a minimum term of sixteen years less 482 days pursuant to the provisions of s.240 of the
Criminal
Justice Act 2003.
- The
applicant
was involved with a number of other individuals who either pleaded guilty or were convicted. In their cases,
applications
for leave to
appeal
against sentences of life imprisonment with
varying
minimum terms were dismissed by this court on
1st
December 2012. The detail of the conspiracies and the
roles
of others are set out in the judgment of this Court in
Riley
and Others [2012] EWCA
Crim
2507.
- On the same day as that hearing, we adjourned the
application
of Gary
Wilson.
Mr Mansfield QC, who did not
appear
below, sought to
raise
an issue
relating
to the fact that
Wilson,
who had put forward a basis of plea, which was
rejected
by the
Crown,
had been sentenced by the Judge without a Newton hearing being held. Mr Mansfield indicated that it was
Wilson's
position that he had not been properly advised about having a Newton hearing.
- In granting the adjournment, I said:
"We are minded to grant the adjournment. The court has to look
very
carefully at
applications
of this sort because the court has to be alert to the possibility of improper manipulation. But having seen the contents of the letter from the solicitor previously instructed, we are dealing with a situation which is simply not the say so of the
applicant,
but is one which is, potentially at least, supported by the
recollection
of one of his professional advisors ".
- The court gave directions and there have been subsequent directions and a hearing in order to get the case in order.
Very
regrettably,
for a number of
reasons,
there has been delay in the matter
returning
for determination by this court.
- It became clear that there was a dispute between the assertions of the
applicant
and his then solicitor, Janine Doolan, as against the
recollection
of leading and junior counsel as to the
relevant
events. On a previous occasion, the court decided that it would conduct the hearing of this
application
in two stages: firstly, to
rule
on the question of whether or not there should have been a Newton hearing. In the event that the
applicant
was successful in
relation
to the first stage, directions would then have to be given for a further substantive hearing which would involve a Newton hearing taking place before this court, with evidence being given by the
applicant.
In addition, the court would at that stage consider an
application
to
receive
fresh evidence in
relation
to telephone
records.
That latter
application
would fall away if the
applicant
was unsuccessful at the first stage of these proceedings.
- The
application
falls into two separate areas. Firstly, it is said that the sentencing hearing in
Wilson's
case was flawed because his decision not to seek a Newton hearing and thus not to give evidence was the
result
of unbalanced and incomplete legal advice. Secondly, irrespective of the first argument, a sentence of life imprisonment was wrong in principle, and the minimum term imposed was too long. In
respect
of this latter point, we have been provided with a pre
appeal
report
dated 28th January
2014
with an addendum dated
10th
April
2014.
The first ground
- It is convenient next to set out a chronology of events. In mid-2011 the first trial took place at Liverpool
Crown
Court.
Wilson
was tried alongside his co-conspirators. The trial had to be aborted when two co-accused, Bradley and Downes escaped from custody. By that stage, however,
Wilson
had given evidence in his own defence and had been
cross-examined.
He denied that he had any
criminal
involvement in
relation
to the matters indicted, although he conceded that he knew his co-accused and had been in extensive telephone contact with them during the period of the conspiracies. It was the clear assessment of his legal team that
Wilson
had not performed well or convincingly in the witness box. It
appears
that he also considered that he was
very
likely to have been convicted had the trial not been aborted.
- After the first trial, two co-accused,
Riley
and Farrell pleaded guilty in September 2011. It is clear that
Wilson
was seriously considering his position, no doubt as a
result
of his experience during the first trial. There were prepared a number of different bases of plea, two of which were submitted to the
Crown
in the autumn of 2011. There were differences between the two bases submitted. It is not necessary for present purposes to go into detail of the bases of plea beyond saying that they sought to confine
Wilson's
role
in the conspiracies to a
relatively
minor one.
- On 9th December 2011,
Wilson
was
re-arraigned
and pleaded guilty to both conspiracies before Henriques J. He did so
voluntarily,
and there is no issue about that in this
application.
At the time of submitting his plea, he coupled it with a basis of plea document which had been signed by him on 8th November 2011. At the hearing the
Crown
made clear that it did not accept that basis of plea and all parties were agreed that a Newton hearing would have to take place. The
applicant
had signed a document for his lawyers indicating that he was pleading guilty
voluntarily
as well as expressing a preparedness to give evidence at any Newton hearing.
- On 9th December 2011, Henriques J transferred the case to Woolwich
Crown
Court. He indicated that he would deal with the
applicant's
Newton hearing at the conclusion of a
re-trial
involving Bradley, Downes and a co-accused, Fitzgibbon, about whom the jury at the first trial had disagreed. That
re-trial
took place and finished on 8th March 2012 with Downes and Bradley being convicted in their absence.
- In the interim, of course,
Wilson's
legal team will have had in mind the need to prepare for the forthcoming Newton hearing. We will need to go into the matter in more detail a little later, but an outline of the position is that on 6th February 2012 there was a series of email exchanges between Ben Myers (junior counsel) and Janine Doolan, the solicitor. It
appears
that Janine Doolan was
visiting
the
applicant
in custody and that Mr Myers was outlining to her particular areas on which she should take instructions with a
view
to the
applicant
giving evidence at a Newton hearing. We have seen documents which are consistent with her following those suggestions at around that time.
- On 22nd February the
Crown
prepared a document titled "Summary of Prosecution Case for Sentence". That document made clear the basis upon which it proposed to open the case at the time of sentence against the
applicant.
It
roundly
rejected
his basis of plea and set out in detail the
Crown's
case which was to the effect that the
applicant
had been involved in six significant incidents
relating
to the conspiracy, each of which could be justified by
reference
to detailed evidence. The effect of this would be to place the
applicant
as "the
right
hand man" to Bradley and Downes, the leaders of the conspiracy, in contrast to the much more limited
role
advanced in the basis of plea.
- This document was clearly considered by leading and junior counsel on or before the 26th February and Ms Doolan was made aware of the position as well.
- On the morning of 27th February, Ms Doolan went to see her client in custody and told him of the
Crown's
attitude. On the afternoon of that day she was joined by Mr Myers. The upshot was that the
applicant
signed a document stating:
"I have been advised by my barrister on the question of whether or not I should give evidence at a Newton hearing. I understand that ultimately that is my decision. I have been advised that if findings were made against me after giving evidence, that would
reduce
significantly any greater
credit
I would otherwise
receive.
Having considered this, I would prefer for submissions to be made on my behalf as to the evidence and my
response
to it. I do not wish to give evidence. I came to this decision by my own free will."
- What transpired at this meeting is of the greatest importance to the present
application.
- On 29th February Ms Doolan sent a letter to the
Crown
Court in unequivocal terms stating;
"We write further to our telephone call to case progression today, 29th February 2012 to confirm that the above named defendant [
Wilson]
will no longer
require
his case to be listed for the purposes of a Newton hearing."
- On 6th March defence counsel submitted a document to the
Crown
and the court
responding
to the
Crown's
note for sentence of 22 February in detail and seeking to persuade the Judge that the
Crown's
assertion about
Wilson's
position within the conspiracy was unsupported by the evidence in the case. On
14th
March, counsel and solicitor saw the
applicant
in custody. Again, this is an important date in
relation
to this
application.
- On
15th
March the sentencing hearing began. There was
reference
by the prosecutor to the fact that there were issues between the
applicant
and the
Crown
as far as the basis of plea was concerned. The Judge observed that the two bases submitted conflicted with one another and with evidence given by the
applicant
at the first trial. After the
Crown's
opening, Mr Meadowcroft QC, leading counsel for
Wilson,
began by accepting that the Judge had heard all the evidence in the case at the
retrial
and that he was content for the Judge to form a
view
about facts based on that. He also
referred
to the defence written submissions. The Judge then commented on the difference between the
Crown's
assertions and the defence submissions and observed that the
applicant
had an opportunity to give evidence in support of his written submissions. The Judge said that his understanding was that Mr Meadowcroft had taken instructions and that
Wilson
specifically did not wish to give evidence on oath. To that, Mr Meadowcroft
responded
that the Judge was correct, that
Wilson
had given those instructions some time ago and that they had been confirmed both the previous day and on the day of the hearing.
- On
15th
March the Judge passed sentence. In so doing, he
recorded
that he had offered
Wilson
the opportunity of giving evidence on oath and that he had declined to do so. With a careful analysis of the evidence the Judge indicated why he came to the conclusion that
Wilson
was " a most important cog in the workings of these conspiracies
receiving
information from Downes, giving it to him, playing a significant
role
in conspiracy affairs". It is conceded that the Judge was entitled to come to this conclusion if there was no irregularity in the process by which the
applicant
came not to trigger a Newton hearing. In passing sentence the Judge indicated that despite the fact that
Wilson
had given evidence at the first trial denying all involvement, he would still
receive
some
credit
for his plea of guilty. The Judge had also expressly indicated that this would be the case on 9th December 2011 when
Wilson
entered his guilty pleas.
- In early April 2012 trial counsel prepared grounds of
appeal
against sentence. The thrust of those grounds was (
1)
that a life sentence was not merited; (2) that the minimum period was manifestly excessive given
Wilson's
lack of significant
criminal
history and his
role
in the conspiracies. The single Judge
rejected
these grounds. He concluded that the Judge was entitled to find that the
applicant
was the "
right
hand man" for others. He also stated that the
applicant's
culpability was grave, with the conclusion of dangerousness inevitable. He said there was nothing wrong in principle, or manifestly excessive, in
relation
to the life sentence and minimum term.
- After that, the
applicant
dispensed with the services of his counsel and Mr Mansfield QC was instructed. Ms Doolan subsequently withdrew as solicitor. It is to be observed that the original grounds of
appeal
referred
to the fact that it was Ms Doolan who had instructed counsel that a Newton hearing was not
required
and that
Wilson
did not wish to give evidence. Although Ms Doolan had queried a paragraph in an earlier draft of the original grounds, she did not at the time demur from the grounds as submitted.
- After the single Judge's
rejection
of the
application,
allegations of bad or incomplete advice on the part of counsel in
relation
to the Newton hearing were made. Statements made by Ms Doolan and the
applicant
in December 2012 asserted that on the day before the sentencing hearing (
14th
March 2012) Mr Meadowcroft QC told
Wilson
that he should not give evidence and that everything would be sorted out by counsel's submissions. This was said to have been done in the face of a defendant who was willing and able to deal with the
relevant
issues by giving evidence. Moreover it was asserted by them both that Ms Doolan had
voiced
her strong opposition and concern to Mr Meadowcroft QC at the time, only to be dismissed.
- Leading and junior counsel
responded
to these allegations in detail and provided contemporaneous documents. This seems to have led to a modification of the
applicant's
stance. It is now asserted that the
applicant's
decision was taken as a
result
of unbalanced and incomplete advice and that the advice came from Mr Myers on 27th February 2012 as a
result
of a discussion he had had with leading counsel the night before in the light of the prosecution's detailed
rejection
of the basis of plea. It is to be noted that in initial
versions
of events put forward by both Ms Doolan in a letter to the court dated 23 October 2012 and by this
Applicant,
there was no
reference
to the conference on 27th February or the document which had been signed by the
Applicant
on that date.
- After a directions hearing on 5 December 2013 it was contemplated by the parties that the following witnesses were likely to give evidence – Gary
Wilson
and Ms Doolan supporting the
applicant's
case, with Mr Meadowcroft QC and Mr Myers (now QC) in opposition.
- However, some time prior to the hearing Mr Mansfield QC gave notice in
relation
to Ms Doolan's evidence in the following terms:
"As the documentation in this case has unfolded it has become clear that there are serious discrepancies and omissions in the statements provided by Janine Doolan as have been chronicled on the
Applicant's
grounds, such that she cannot be
regarded
as a witness of truth. In those circumstances, she is not a witness who can be called on behalf of the
applicant."
- Having heard evidence from Mr
Wilson,
Mr Meadowcroft and Mr Myers and, neither party wishing to call Ms Doolan for the
reasons
indicated in Mr Mansfield's note, the court called Ms Doolan to give evidence about certain specific matters which had arisen. Thereafter each counsel was permitted to
cross
examine her.
- This being a
renewed
application
we do not set out in length the evidence given by the witnesses.
Wilson's
evidence was that when he signed the document on 27th February 2012, it was not
read
to him nor had he
read
it over. He had been told that he should not go ahead with the Newton hearing, but his
rights
had not been explained to him by Mr Myers. Although he was prepared to give evidence, he was never given advice that the judge would disbelieve his basis of plea if he failed to give evidence. This was something which he had not previously mentioned in two lengthy witness statements, albeit that it falls at the heart of the case now mounted by Mr Mansfield.
Wilson
said that on
14th
March 2012 Ms Doolan had not joined in advice against having a Newton hearing. When she spoke to the contrary, she was "shut down" by counsel. Mr
Wilson
also gave evidence that the
Crown,
during the course of the first trial, had
approached
Mr Meadowcroft indicating that they would
view
his case differently from the others and that they were prepared to do some deal as to plea to
reflect
that. The
Crown's
later written submissions to the judge
represented
a change of mind by the
Crown
as to his
role.
- We did not find
Wilson
a convincing or
credible
witness. Much of his evidence had an inherent
vagueness,
he was at times evasive and unrealistically minimised aspects of the case against him on the core issues of what took place on 27th February and
14th
March. We
reject
his evidence. We are entirely satisfied that the document which he signed was signed after
appropriate
advice had been given and after the document had been
read
and explained to him. In particular, the claim that there was a failure to give advice that the judge would disbelieve his basis of plea if he failed to give evidence at a Newton hearing is an allegation made by him for the first time in the witness box. It is also highly significant that his different
versions
of events have closely tracked the changes in account put forward by Ms Doolan, much of which is now accepted by her to have been wrong.
- As to the issue of whether some deal was done with the
Crown
during the course of the first trial
relating
to his
role
in this case, we
reject
Wilson's
version.
Based on what Mr Meadowcroft told us, we find that there were discussions between
Crown
and defence as to whether some acceptable basis of plea could be negotiated in
relation
to
Wilson.
This was the sort of exploratory discussion which frequently takes place between counsel on a without prejudice basis, prior to or during many trials. It is perfectly clear that no common ground could be established. Thereafter the
applicant
proceeded to give evidence denying any
criminal
involvement in this matter with the
Crown
cross-examining
him on the basis of extensive involvement in the conspiracy. There was no deal as claimed, and the
Crown
was fully entitled to present its case against
Wilson
in the way that it did.
Wilson's
claim to have been taken aback by the stance the
Crown
adopted shortly before sentence was disingenuous.
- The evidence of Ms Doolan had, as noted, in the course of preparation for this
appeal,
revealed
so many flaws and inconsistencies both internally and with the known facts as to
render
her incapable of being
regarded
as a witness of accuracy and truth. The process had started with a letter she wrote to the
Registrar
on 23 October 2012, in which she entirely missed out the events of the 27th February and
appeared
to suggest that
Wilson
had been given incorrect advice by Mr Meadowcroft and Mr Myers on
14th
March 2012. That letter claimed that Ms Doolan had
voiced
her concern about the advice being given and was told in the clearest of terms that she was wrong. She also stated that she had "a full note of this on file".
- That this claim of dissent, with forceful
rebuttal
by counsel in front of the client, all evidenced in a full file note, is incorrect is clear from Ms Doolan's own documents which have been produced by Mr Myers. She had emailed Mr Myers on 25th February 2012 expressing concern that they were proceeding to a Newton hearing which she thought was doomed to fail. She wanted the client to be given clear advice about the Newton hearing and was concerned as to the sentence he would get if he contested such a hearing unsuccessfully, as compared to the sentence he would get if he did not embark on such a hearing. Prior to seeing
Wilson
on 27th February she prepared a note of advice to be given to him which included the important advice-
"If you do abandon it, you need to be clear. You will be sentenced on the prosecution's
version
as outlined in the document I have given you."
- Ms Doolan had provided a witness statement dated 3
rd
December 2012 in which she stated that this was a
record
of advice which was not only to be given but which was in fact given at the conference of 27th February. She
resiled
from that in the witness box, and said that in fact that advice was not given either by her on the morning of the 27th or on the afternoon when Mr Myers joined her. Later, she said that she did not know if that advice had been given on either 27th February or
14th
March. Although she had made multiple amendments to her December 2012 statement in a later statement made in
2014,
she did not amend this assertion until she
appeared
in the witness box. Her later witness statement makes wholly unconvincing attempts to explain away the letter she wrote to the court on the 29th February. As to the conference on
14th
March, her own note shows nothing to suggest that she dissented from the confirmation on that day that
Wilson
would not give evidence at a Newton hearing. On
18th
April 2012, a month after the sentencing, she sent an email to Mr Myers entirely consistent with her having been a party to the advice given to Mr
Wilson.
It includes:
"….at the end of the day my
recollection
is that all three of us, you me and Steve, all had a conference with Gary before the sentence and he was advised that having a Newton would be disastrous."
- She went on in that email to describe how the client was being unfair after sentence in
criticising
them and that there was a "massive twisting of the facts" on
Wilson's
part. Her claims to have been working on preparation with
Wilson
for a Newton hearing after 27th February and up to the
14th
March are shown to be false by contemporaneous documentation provided by Mr Myers. For these and other
reasons
which are not necessary to develop in detail, it is
crystal
clear that the account put forward by Ms Doolan cannot be accepted. In so far as she sought to suggest to us that there had been a failure fully to advise Mr
Wilson,
we
reject
her evidence. Even if she did not give the advice
referred
to at paragraph 32 above on the morning of 27 February, we find it inconceivable that she would have let it pass when the issue of the Newton hearing was
revisited
with Mr Myers that afternoon. We have been
very
disturbed by the demonstrably inaccurate nature of what Ms Doolan has put forward both in solemn statements under the
Criminal
Justice Act and in evidence to the court. Even looking at it from the most favourable
viewpoint
from Ms Doolan's position, she has made a series of inaccurate statements in a way that we can only
regard
as irresponsible. Her attempt to explain or excuse herself in the witness box was wholly unconvincing.
- We also heard evidence from Mr Myers and Mr Meadowcroft. We have to say that in contrast, they were witnesses whose evidence was consistent, open and honest. Mr Myers had provided the court with a series of highly
relevant
documents which Ms Doolan had not. We are satisfied from the note which Mr Myers kept of the conference on 27th February that the advice given to
Wilson
was full and accurate. We accept that although in his note (which does not purport to be anything more than a summary made as the conference progressed), there is nothing that expressly
records
advice to the effect that if
Wilson
did not give evidence the judge would find against him, Mr Myers maintained that such advice was given and
referred
us to a part of his note that we consider would be consistent with such advice having been given. As Ms Doolan's email of 25th February had foreshadowed,
Wilson
was much concerned about losing
credit,
which the Judge had said he would give him for having pleaded guilty, if he gave evidence at a Newton hearing and was disbelieved. He was most anxious to
retain
credit
for his guilty plea.
- As was observed at the hearing, he was between a
rock
and a hard place; if he gave evidence he was highly likely to be disbelieved in the light of his perjury at the previous trial, and then would be likely to lose
credit
for a guilty plea. If however he did not give evidence the Judge was likely to
reject
oral submissions made on his behalf, or those made in the defence written submissions, as to sentence. We are sure that
Wilson
made a free choice to preserve his
credit
for the guilty plea by not giving evidence whilst hoping that some progress could be made as to his
role
through the written and oral submissions of his counsel. This was, we are satisfied, a fully informed decision.
- Turning to
14th
March, the conference attended by Mr Meadowcroft and Mr Myers, we accept firstly that there was no disagreement expressed by Ms Doolan in
relation
to the advice given, and we accept that Mr Meadowcroft, a clearly honest witness, confirmed with
Wilson
his agreement that no Newton hearing would take place. We accept his evidence that by the
14th
March,
Wilson
was specifically saying he did not want to give evidence. His primary concern was that the Judge would force him to give evidence. He, Mr Meadowcroft, had
reassured
Wilson
that the Judge could not do this.
Wilson
had fully understood the choices available to him, including the
risk
that if he gave evidence unsuccessfully, he might be
cross-examined
into a worse position than he was in already. Although Mr Meadowcroft had not been present at the conference on 27th February, we accept his evidence of conversations he had had with Mr Myers both before and after that conference. As a
result
of those discussions, Mr Meadowcroft had satisfied himself firstly that
Wilson
was happy not to give evidence and secondly that the advice given to him had included the consequences of not giving evidence balanced against the
risks
if he did give evidence unsuccessfully. As already stated, we are satisfied that both counsel gave honest and accurate evidence.
- In this context we
record
that there was one matter of difference between Mr Myers and Mr Meadowcroft which emerged. Mr Meadowcroft
recalled
the question of discussions with the
Crown
about a possible deal during the course of the first trial. Indeed, he gave some detail which has enabled us to draw conclusions, set out above. Mr Myers, on the other hand, did not
recall
this matter as having arisen. Mr Meadowcroft said that he had believed he had told Mr Myers about these discussions. We do not think that this
reflects
badly upon Mr Myers who was a completely honest witness. If he was told of the discussions, (as we would have expected), he must have forgotten that detail. The difference is in any event irrelevant, since there was never any deal, since the prosecution proceeded to
cross-examine
Wilson
on the basis of extensive involvement, and since his basis of plea was clearly
rejected
by the
Crown
when pleas were entered on 9th December 2011.
- The particular way in which Mr Mansfield advanced the first ground was not to suggest that no advice had been given about a Newton hearing. To the contrary, he accepted that strong advice had been given about the Newton hearing and that this was unsurprising in the circumstances. He further accepted that no complaint could be made about that advice if it had been counter-balanced by an important piece of advice that had not been given and that therefore invalidated any such advice. He
relied
on
R
v
Noonan [2010] 2
Cr
App
R
(S) 35, for the proposition where the prosecution not only dispute the defence assertions, but identify the evidence on which they would
rely
to challenge them, the defendant is effectively bound to adduce evidence in support of his assertions if there is to be any prospect of them being accepted by the court. He submitted on this basis, that the advice given about the Newton hearing was not counter-balanced by advice about the inevitability of the Judge drawing inferences against the
applicant
if he gave no evidence at a Newton hearing.
- Mr Mansfield's proposition is not a direct quotation from Noonan but is a quotation from the paraphrase of Noonan at paragraph 5-
101
(c) of the 2015 edition of Archbold. Noonan was not a case about counsel's failure to advise.
Rather
it was a case about the Judge's
approach
to disputed factual sentencing issues. We do not doubt that it
represents
a
realistic
appraisal
of the evidential position confronting a defendant in
very
many cases so that it will frequently
represent
advice which should be given as part of the making of a well-informed decision as to a Newton hearing. However, context is
critical
and there may be cases where that paraphrase overstates the position, for example, where there is evidence before the court which contradicts, explains, sets in context or weakens that which is put forward by the prosecution and which can be
relied
upon by the defence without calling evidence.
- The submission made by Mr Mansfield
represents
the final
resting
place of arguments to be made on behalf of this
applicant,
Mr Mansfield's task being made the more difficult by the fact that the evidence put forward in the pre-hearing statements made by
Wilson
and Ms Doolan have
represented
developing
rather
than consistent accounts of events. For the
reasons
already given we are satisfied that full and
appropriate
advice was given to
Wilson
in
relation
to the question of a Newton hearing, including the sort of advice under consideration in the
reference
to Noonan. Accordingly, this first ground of
appeal
must fail.
The second ground
- The
applicant's
second ground is one, which is independent of the first ground. This ground bears a close similarity to that advanced by the original trial counsel. Clearly the
view
which we have taken in
relation
to ground one has an impact on this ground. We have to proceed on the basis that the
applicant
declined to give evidence in a Newton hearing as a
result
of a
voluntary
decision made after
appropriate
legal advice had been given. In those circumstances the Judge was not obliged to accept what had been put forward by the defence in their written submissions of 6 March in
response
to the
Crown's
note of 22 February for the purposes of sentencing. The Judge was entitled to take into account the evidence he had heard at the
retrial,
the
Crown's
submissions and the defence submissions, the fact that the
applicant
had by
virtue
of his guilty plea given false evidence at the original trial, and that he had advanced two different bases of plea. Those matters cannot have assisted the
credibility
of the contentions being put forward on behalf of the
applicant.
- The
Crown
had provided a
reasoned
case for its submissions that this
applicant
had an important
role
to play in the conspiracy
rather
than the more limited one the
applicant
contended for. We are satisfied that the Judge was entitled and justified in coming to the conclusions he did about this
applicant's
role
in the conspiracy. This meant that the
applicant
was to be
regarded
as an important player in this campaign of terror operating in Merseyside as part of the activities of an organised
criminal
gang over many months. Although the
applicant
himself was not alleged to have been directly involved in the use of firearms against individuals or the use of explosives against property, he was on the Judge's analysis clearly an important facilitator for the leaders of the conspiracy who were using others to carry out their nefarious work.
Wilson
played a key
role
in enabling what did happen on a number of occasions to occur.
- The essential submission made is that the Judge in making an assessment of dangerousness and passing the sentence of life imprisonment focused too heavily on the nature of the offence. It was submitted that one cannot assume from the seriousness of the offending alone that an offender is dangerous. Our attention was drawn to Murray and Others [2012] EWCA
Crim
2823, where Moore-Bick LJ said at paragraph 26:
"…Although the circumstances of the offences for which he is to be sentenced will often be a
very
important factor is assessing whether an offender is dangerous, each case calls for individual consideration. It cannot be said that particular kinds of offending automatically justify a finding of dangerousness and where the Judge makes such a finding he has a duty to give
reasons
for it".
Our attention was also directed to paragraph
17(ii)
of Lang and Others (2006) 2
Cr
App
R
(S) 3.
- In this case, the Judge was aware of the fact that although
Wilson
had previous convictions they had not been serious enough to
result
in any prior term of custody. It is clear that the Judge had given the most careful consideration to the nature of the offending; he was fully aware of the test to be
applied
under the
Criminal
Justice Act 2003 in
relation
to a finding of dangerousness, and understood the hierarchy of sentences which were available at that time. These were an extended sentence, a sentence of imprisonment for public protection or a life sentence. (The provisions of LASPO were not then in force.) He had considered
relevant
authorities and was wholly aware of the exceptional step in passing a life term as opposed to a sentence of imprisonment for public protection. In passing sentence on
Wilson,
the Judge analysed in detail his
role
in the matter and
recognised
his
relative
lack of
criminal
record
as well as the fact he was not directly and physically involved in any of the attacks carried out.
- The submissions of principle made on behalf of
Wilson
echo those made in the
appeal
of
Riley
and Others. The
relevant
authorities are considered at paragraphs 48 to 55 inclusive of the decision in
Riley
and others. The factors in play in
Wilson's
case are not dissimilar to those involved in some of the cases before the court in
Riley
and Others. We have of course considered
Wilson's
case in its own
right.
In his case there are now the pre-
appeal
reports
already mentioned. We do not think that they assist Mr
Wilson
who is still assessed as posing a high
risk
of serious harm to members of the public and a medium
risk
of harm to known adults. The author of the
report
was unable to provide any
reliable
estimate as to the time during which
Wilson
might
reduce
his
risk.
There were too many
variables
which themselves might change depending on circumstances. It is clear that work needs to be done with
Wilson
whilst he is in custody. Even if one accepted at face
value
Wilson's
assertion of motivation to do work
required
of him so as to demonstrate a
reduction
in
risk,
(and there are grounds given
Wilson's
lack of
veracity
before us not to accept such an assertion), there is nothing to suggest that a finding of dangerousness was unjustified. These
reports
merely provide additional material to show that the Judge's decision as to the danger posed by
Wilson
was correct.
Wilson
is clearly someone who was heavily immersed in
criminal
gang culture,
ready
and willing to assist in the carrying out of grave
crimes
on a
repeated
basis. As we commented in
Riley
and Others, this type of conduct is in fact the clearest indication of a dangerousness looking beyond the label of the offence and at the
reality
of what it was this
applicant
was prepared to participate in over a period of time. Those observations would be ample to justify an indeterminate sentence for
Wilson.
The question is whether exceptionally a term of life
rather
than an IPP was
appropriate.
In that context we have taken account of Kehoe [2009]
1
Cr
App
R
(S) 9. We have also considered the more
recent
decision in Saunders [
2014]
1
Cr
App
R
(S) 45, and in particular, paragraphs 5 to
14.
- We take the
view
that these offences were totally abhorrent to and terrifying of the public.
Wilson
was in a position of some importance and seniority within an organisation dedicated to carrying out potential lethal attacks on person and property in an utterly
ruthless
and disproportionately
violent
way. He cannot wash his hands of
responsibility
by urging that he did not pull a trigger or throw a grenade. We are satisfied that these are the sorts of
crimes
that fall within the category envisaged in Kehoe and that no complaint can be made about
Wilson's
inclusion in it. Given his
role
as found by the Judge, the minimum term of sixteen years less time spent in custody, whilst severe, was justifiable. We are unpersuaded that there is anything in this second ground.
Conclusion
- This
renewed
application
in
relation
to sentence is therefore dismissed, both grounds having been
rejected.
It follows that these proceedings are now terminated as our decision means that there is no purpose to be served by the proposed second stage.
Addendum
- We feel that we need to add something about the position of Ms Doolan. Earlier we have expressed concern about the unsatisfactory nature of her evidence and statements made either in a letter to the
Registrar
or witness statements. We consider that those matters may call into question public trust in Ms Doolan as a solicitor.
- We direct the
Registrar
to provide a copy of this judgment to the
relevant
disciplinary authority of the Law Society for its consideration. We have no doubt that if so
requested
the
Crown will also provide any necessary materials to the Law Society for its consideration.
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