If you found BAILII useful today, could you please make a contribution?

Your donation will help us maintain and extend our databases of legal information. No contribution is too small. If every visitor this month donates, it will have a significant impact on BAILII's ability to continue providing free access to the law.

Thank you very much for your support!


BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales Court of Appeal (Criminal Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Wilson v R (Rev 1) [2014] EWCA Crim 2506 (04 December 2014)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2014/2506.html
Cite as: [2014] EWCA Crim 2506

[New search] [Context] [View without highlighting] [Printable RTF version] [Help]


Neutral Citation Number: [2014] EWCA Crim 2506
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
- and -

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

  1. 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.
  2. 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.
  3. 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.
  4. In granting the adjournment, I said:
  5. "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 ".
  6. 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.
  7. 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.
  8. 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.
  9. The first ground

  10. 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.
  11. 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.
  12. 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.
  13. 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.
  14. 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.
  15. 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.
  16. 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.
  17. 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:
  18. "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."
  19. What transpired at this meeting is of the greatest importance to the present application.
  20. On 29th February Ms Doolan sent a letter to the Crown Court in unequivocal terms stating;
  21. "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."
  22. 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.
  23. 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.
  24. 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.
  25. 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.
  26. 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.
  27. 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.
  28. 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.
  29. 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.
  30. However, some time prior to the hearing Mr Mansfield QC gave notice in relation to Ms Doolan's evidence in the following terms:
  31. "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."
  32. 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.
  33. 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.
  34. 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.
  35. 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.
  36. 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".
  37. 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-
  38. "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."
  39. Ms Doolan had provided a witness statement dated 3rd 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:
  40. "….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."
  41. 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.
  42. 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.
  43. 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.
  44. 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.
  45. 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.
  46. 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.
  47. 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.
  48. 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.
  49. The second ground

  50. 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.
  51. 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.
  52. 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:
  53. "…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.

  54. 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.
  55. 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.
  56. 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.
  57. 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.
  58. Conclusion

  59. 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.
  60. Addendum

  61. 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.
  62. 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.


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2014/2506.html