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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Barkauskas v R [2017] EWCA Crim 1210 (08 August 2017)
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Cite as: [2017] EWCA Crim 1210

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Neutral Citation Number: [2017] EWCA Crim 1210
Case No: 201602760 B2
201602762 B2
201602845 B2

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SNARESBROOK CROWN COURT
HER HONOUR JUDGE KAUL QC
T20148188

Royal Courts of Justice
Strand, London, WC2A 2LL
08/08/2017

B e f o r e :

LADY JUSTICE HALLETT DBE
VICE PRESIDENT COURT OF APPEAL CRIMINAL DIVISION
MR JUSTICE NICHOL
and
MRS JUSTICE LANG DBE

____________________

Between:
JUOZAS FRANCKEVICIUS
EDMUNDUS BARKAUSKAS
1st Appellant
2nd Appellant
- and -

REGINA
Respondent

____________________

J Vallejo appeared for the for the 1st Appellant
M Russell appeared for the for the 2nd Appellant
K Charles and R Sadler (instructed by CPS Special Crime Division) for the Respondent
Hearing dates: Wednesday 26 July 2017

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    The Vice President:

    Introduction

  1. On 23 November 2015, the trial began at Snaresbrook Crown Court before Her Honour Judge Kaul QC of the two applicants and three other accused with a three week trial estimate. After about two weeks, defence counsel complained that 'failures on the part of the prosecution to serve evidence in time or make proper disclosure made it offensive to the court's sense of justice to allow the trial to proceed' and applied for a stay of the proceedings as an abuse of process. Not surprisingly, the Judge disagreed. She did, however, discharge the jury and ruled that the case be re-listed for 26 January 2016 with stringent case management directions. Despite stringent case management, the re-trial, with a revised estimate of six weeks, lasted an astonishing fifteen weeks.
  2. On 11th May 2016 the applicant Franckevicius was convicted unanimously of conspiracy to steal motor vehicles, conspiracy to receive stolen goods and handling stolen goods. The following day he was sentenced to a total of nine years: four years on the conspiracy to steal, five years ordered to run consecutively on the conspiracy to handle and seven days ordered to run concurrently on the handling charge. Barkauskas was convicted of conspiracy to handle stolen goods and was sentenced to five years imprisonment.
  3. The co-accused Lapinskas was also convicted of conspiracy to steal motor vehicles and conspiracy to receive stolen goods and was sentenced to a total of six years' imprisonment. Bereika was acquitted of conspiracy to receive stolen goods by the jury and Krivickas was acquitted on the direction of the Judge.
  4. The Registrar has referred to the Full Court applications for leave to appeal against conviction by both applicants and an application for leave to appeal against sentence by Franckevicius. In summary, the appeal against conviction is based on the Judge's rulings in relation to Public Interest Immunity material and a very unfortunate deterioration in the relationship between the Judge and counsel, Ms Vallejo for Franckevicius and Ms Russell for Barkauskas.
  5. The Judge has made a complaint to the Bar Standards Board about counsel's conduct of the case and having taken advice, they sought to withdraw from these proceedings claiming a conflict of interest. The Registrar, supported by the Vice President, declined to allow them to withdraw, on the basis they could provide greater assistance to the court than fresh counsel and the cost of instructing fresh counsel would be disproportionate. The court did, however, indicate that should a conflict of interest become apparent it would be prepared to re-visit the issue. No further application was made, albeit Ms Russell did decline to answer one question from the court (as to whether she abused the Judge within her hearing) on the basis of a 'conflict'. We should emphasise that our primary function is not to assess whether the Judge's complaints are justified but whether there are arguable grounds for the propositions that the applicants were denied a fair trial and the convictions are unsafe.
  6. Prosecution case

  7. The applicants were involved with other Lithuanian nationals in a highly sophisticated conspiracy to steal high value motor vehicles between 1 April 2014 and 10 December 2014 and a conspiracy to receive stolen parts. The police operation was known as Meehan 2 to distinguish it from a similar but distinct operation conducted by the same police unit, known as Meehan 1.
  8. The thefts were keyless and the stolen vehicles were taken from one residential area to another where they would remain for a period of time. This was to avoid detection in the event that the car had been fitted with a tracker device. If no such device was activated, the car was either taken to be sold bearing false number plates or taken to a secure storage unit at Romford Self Storage Depot to be dismantled and the parts sold. The owner of Romford Self Storage, a Mr Gibbs, was apparently in the process of selling it to Franckevicius. Lapinskas and Franckevicius stole the cars, stored the cars and car parts. Barkauskas and Bereika dismantled them.
  9. Surveillance on Franckevicius and Lapinskas began on 8 September 2014. They were seen driving their working car (a black Skoda index number FGO5 FHM) late at night in quiet residential affluent areas and parking near cars of interest, particularly BMWs. Computer-generated ANPR (automatic number plate recognition) evidence showed the 'working car' in close proximity to five stolen vehicles. The Skoda was registered to Franckevicius at 473a High Road, Leyton. The insurance policy holder details were recorded as TT Motors Garage Ltd. and the permitted driver was Tomas Bereika. TT Motors Garage Ltd. was jointly operated by Barkauskas and Bereika.
  10. On 26 November 2014 officers watched Franckevicius and Lapinskas steal a BMW and park it in a quiet residential road. They recovered the car and returned it to the owner before it could be moved on.
  11. On 3 December 2014 a Mercedes Sprinter van bearing the false number plate GF57MLX arrived at Romford Self Storage. The van had been stolen on 20 September 2014. Franckevicius arrived in his BMW YLE. He moved the van, left the site in it and returned just over two hours later. He went into the site office then left in the BMW.
  12. On 4 December 2014 Lapinskas was seen arriving at Unit 20, Earith Business Park, Cambridgeshire in the Skoda. The defendant Krivickas was sitting in the passenger seat. Lapinskas handed Krivickas a set of keys and he got into the driver's seat of a Mercedes sprinter van bearing the plate BP57 KGZ. This van had been stolen between 1 and 2 December 2014. The number plate BP57 KGZ was registered to Lapinskas at his home address but was insured by TT Motors. Lapinskas was arrested.
  13. The same day Franckevicius was also arrested at Barkauskas's home in Dagenham where he was staying. The BMW YLE was parked outside. When examined it was found to be a salvage car, repaired with components from stolen vehicles. It was searched and various items were seized including A4 diaries containing a plan of the Romford Storage depot with annotations. a V5 for another vehicle, a BMW ZKE which was a salvage vehicle bought by Barkauskas from 'Co-part'. Parked outside was another BMW which was registered to Barkauskas. Three hire agreements for Romford Storage were found inside.
  14. Three keys were found in Franckevicius' pocket; they opened three containers that he was renting at Romford Storage. Officers unlocked containers 4, 9 and 10 using the keys from Franckevicius. Container 4 contained a large number of stolen car parts and personal property. A photocopy of the V5, logbook, and the MOT for the Sprinter van, GF57 MLX were also found. The vehicle itself was parked in a corner of the site. Its true identity was KU59 AOH. The false plate was registered to Bereika and the registration plates gave the supplier's details as TT Motors.
  15. Container 9 contained stolen car parts, a stolen bicycle, a box of keys and lock picks, a box of ignition barrels, a radio from BMW number BK57 XGD registered to Barkauskas and a rain gully from another Mercedes Sprinter van (OKJ). There was a number plate for ZKE which was on ramps at TT Motors when the police attended on 10 December.
  16. In container 10 there was a BMW, still intact, which had been stolen on 3 April 2014. Other containers were searched and found to contain transponders, key chips, blank keys, blades, lock picks, barrel tools to manipulate a key lock, a plastic case containing a quantity of electronic keys, a tub containing more BMW lock picks and a large selection of blades. There was also the owner's manual for FRX, one of Barkauskas' s cars.
  17. Another BMW bearing the plate MV57HWY was parked outside Lapinskas' home. It contained latex gloves, and screws and caps for number plates. It was a salvage vehicle repaired using car parts stolen from a BMW in January 2013.
  18. Dennis King, professional technical officer, had examined over 30,000 cars in the course of his career. He examined the cars and car parts and a schedule was produced of his significant findings. In summary using 'overt theft indicators' and 'covert' markings he could establish that most of the parts were stolen and the cars had been 'rung'. In his opinion the level of work and sophistication required to ring the vehicles indicated that the person or people responsible had a mechanical background and a profound knowledge of BMWs.
  19. The vehicle, YLE, was accepted to be Mr†Franckevicius' s car. Mr King was satisfied that the items found on it related to another car and that it had been rung. The identity and ignition systems of three stolen Mercedes Sprinter vans had been altered using the same methodology.
  20. On 10 December 2014 officers attended TT Motors. The premises were searched and a number plate index KJO8 CTU was found belonging to a BMW which had been seen outside TT Motors previously. The CD player, centre console, radio and rear pad belonging to this car were found at the Romford Self Storage unit.
  21. Defence case

    Franckevicius

  22. In 2011/2012 Franckevicius was working as a builder and a carpenter and recently had been assisting a mechanical engineer. He did use units 4, 9 and 10 at Romford Self Storage and the other units belonged to him in the sense that he was the owner of the yard, but some units were rented out and some were empty. He had not dealt in stolen cars and none of the stolen car parts were anything to do with him. He had nothing to do with the theft or attempted theft of any car and was not one of the individuals seen paying attention to BMWs during the course of the surveillance. His car, YLE, was bought from 'Co-part'. As far as he was aware none of the parts were stolen. So far as MLX was concerned, he had driven it a couple of times but had no idea it was 'rung'.
  23. Mr Gibbs was the owner of Romford Self-Storage. He confirmed that Franckevicius was in the process of taking over the business from him at the time of the police raid. Mr†Franckevicius had keys to the gate, also to the office and that gave him access to those containers on which there were Romford Storage locks. Other customers, however, could have used their own keys which they would have kept. So far as opening the containers was concerned; each container at Romford had a self-storage lock on it but an individual would have a key kept in a locked key box in the office. Mr Gibbs was aware that Mr Franckevicius had put items in a container that was rented from a customer who had not paid rent but there was no indication that he was allegedly storing stolen parts in the containers.
  24. Barkauskas

  25. Barkauskas was a man of good character and there was no evidence that he was involved in any dishonesty. He knew his co-defendants as part of the Lithuanian community. He had let Franckevicius, whom he considered a friend, stay at his house following some domestic problem. He himself both bought cars on behalf of others from a salvage company (Co-part), it was a legitimate business and he paid tax. He employed mechanics to do repairs. Nothing was found at TT Motors which would be consistent with the type of sophisticated mechanical and body work done on the rung cars and there were no forensic links to him.
  26. The Judge's Rulings

  27. The Judge was obliged to make a large number of rulings, far too many in our view. We do not intend to rehearse them all. Several applications related to 'disclosure issues'. Counsel for the applicants complain that the prosecution did not comply with their duties of timely service of material on which they relied and of disclosure of unused material and that this caused real problems for the defence. Counsel for the prosecution maintains that the disclosure problems could have been resolved during the first trial, that there was no need for a re-trial, that many of the problems were caused by a 'constant barrage' of defence applications for disclosure of material that was irrelevant to the issues in the case and that an application to stay the proceedings in the first trial made by counsel for the applicants was totally unwarranted. In any event, all proper disclosure had been made by the time of the re-trial (save for material relating to covert markers used to identify stolen cars and parts). The further disclosure made during the re-trial was triggered by requests and questions submitted by the defence. There was no obligation on the Crown to make this further disclosure, in general, and in the case of Franckevicius, in particular, who had declined to serve a Defence Case Statement.
  28. Ruling on Public Interest Immunity

  29. One so called 'disclosure' issue was the issue of covert markings and the methodology deployed by Mr King to identify stolen cars and car parts. He is one of the few experts in the field entrusted by car manufacturers with confidential information on the nature and location of covert markers. The prosecution was concerned that serving the material on which he relied might facilitate other offences, hinder the prevention and detection of crime and deter manufacturers from sharing information in the future.
  30. The manufacturers were willing to allow the joint defence expert, Mr Winstanley to inspect the parts, vehicles and Mr King's notes and for Mr King to explain to him the nature and location of the covert markings, but only on condition Mr Winstanley gave an undertaking that the information was viewed by him alone and not passed on. All parties were content with this proposed course, save Ms Vallejo who insisted that anything disclosed to the expert must be made available to her and her client. This was an entirely proper stance for her to adopt.
  31. Consequently, during the first week of the first trial a Public Interest Immunity ("P11") application was made by the Crown regarding disclosure of the method of identification of stolen parts used by the Crown's experts, Mr King and Mr Scott in respect of the covert markers. The Judge authorised non-disclosure of the exact nature and location of the covert markers in principle, but indicated that prosecution counsel must satisfy themselves and subsequently the Judge herself of the 'audit trail'. The audit trail involved prosecution counsel inspecting the cars and the parts, physically checking the covert markers for themselves and producing an accurate spreadsheet containing all the data upon which reliance was placed. The data included the overt "Theft Indicators" as well as covert markers. This was provided to the Judge at a further PII hearing on 21 December 2015, and an edited version (removing the detail of the covert markers, but indicating on which cars and car parts they had been found) was served on the defence.
  32. Ruling re attempted theft

  33. Reliance was placed by the Crown upon private CCTV of two men attempting to steal a BMW from a driveway during the relevant period covered by the indictment. The attempt was unsuccessful. It was alleged that the two men responsible were Lapinskas and Franckevicius. An application was made by defence counsel to exclude this evidence claiming it was 'bad character' evidence. The Judge ruled that it was not bad character evidence since it had to do with the facts of the case and so it did not come within the definition of 'bad character evidence for the purposes of the Criminal Justice Act 2003 - see s.98. She concluded that the evidence was admissible. A challenge to this ruling originally featured in the grounds of appeal on behalf of Franckevicius, but has rightly been abandoned. The application to exclude the evidence should not have been made and the ground was unarguable. We mention it only to give a flavour of some of the applications made.
  34. Ruling re discharge of the jury

  35. The officer in the case gave evidence of finding a CS pepper spray in the boot of the BMW LYE, the car belonging to Franckevicius. This was despite the fact that the Judge (in the first trial and at the beginning of the second one) had ruled that no reference should be made to this material because it was irrelevant. Application was made either for discharge of the jury or for severance. The applications were refused.
  36. Ruling on application to adduce footage showing the officer in the case arresting a suspect in Meehan 1

  37. In the trial of Meehan 1 a video was admitted at the request of one of the defendants, from an unknown source, on which police could be seen following a stolen car into farm premises. The officer in this case, DC Davis was shown in a violent confrontation with one of the defendants in Meehan 1 . Other officers were nearby. Counsel for the present applicants sought to adduce the video as evidence of bad character of DC Davis and of those of his colleagues who had made no notes of the confrontation. They wished to use it to advance allegations of a 'cover up' on part of all the officers and thereby undermine their credibility in the present trial. The Judge refused an application for admission of the video on the basis that it had no probative value and would create satellite litigation. There was no sufficient connection with the case to be admissible.
  38. Ruling re cross examination of the witness Gibbs

  39. Mr. Gibbs was permitted to give evidence from abroad via a telephone video link. At one point he appeared to forget the name of an individual (Pedro Fadiora). The solicitor's clerk (Kristina) then texted him the name which he repeated in evidence. The link went down while Mr. Gibbs was giving evidence and when it was reinstated, without seeking submissions from counsel, the Judge issued a full self- incrimination warning to Mr. Gibbs and refused an application for solicitors and counsel to withdraw, Kristina was arrested and later charged with perverting the course of justice but the proceedings have been dropped.
  40. The original grounds contained a criticism of the Judge for issuing such a warning without 'consulting' defence counsel. This ground has also been abandoned. It too was unarguable. We mention it only because it featured as part of the complaints about the Judge's attitude to defence counsel and because we are concerned as to what has happened, if anything, in relation to the behaviour of the solicitor's clerk Kristina.
  41. Grounds of Appeal against Conviction

  42. The grounds as now advanced by the applicants overlap to a significant degree so we shall take most of them together. It is said that the Judge erred:
  43. (i) in her refusal to order greater disclosure in the PII Rulings;

    (ii) in permitting repeated and / further expert evidence to be elicited from Mr King;

    (iii) by failing to give the jury fuller directions on the expert evidence;

    (iv) in refusing to admit the video of the 'reprehensible conduct' of the officer in the case (Franckevicius only);

    (v) in refusing to discharge the Jury when the officer in the case adduced wholly irrelevant and prejudicial material about the CS/pepper spray (Franckevicius only);

    (vi) in her hostile attitude towards defence counsel (Barkauskas only);

    (vii) in conducting the trial in such a way that prejudiced the defence and deprived the applicants of the right to a fair trial (Barkauskas only).

    The Judge's refusal to order greater disclosure in the PII Rulings

  44. Ms Vallejo and Ms Russell accept that in principle the material was properly subject to PII. However, they complain that defence counsel were unable to question Mr King properly on how he drew the conclusion that the various vehicles/parts were stolen. The only way in which the applicants could have a fair trial was by the appointment of a special advocate who could analyse the material with the benefit of defence representations. They were not prepared to make any such representations to prosecution counsel for fear of 'undermining the defence case'. Furthermore, Ms Russell questioned whether the prosecution had 'waived' the immunity by allowing Mr King to refer to the presence of covert markers on certain specific car parts. This clearly identified the location of at least some of the markers.
  45. The Judge permitted repeated and / further expert evidence from Mr King

  46. This ground was based on the premise the prosecution was dilatory in its disclosure obligations so that material the prosecution should have disclosed or served was still being made available as the re-trial progressed. We were referred to the relevant Criminal Procedure Rules and previous decisions of this court on the timely disclosure of all disclosable material and in particular on the late service of expert evidence. Both counsel criticised the Judge for allowing further statements to be served from Mr King and for him to be re-called on several occasions, for example to provide an answer to a question from the jury, when, in their submission , the question was not relevant to the issues.
  47. The Judge's failure to give the jury fuller directions on the expert evidence

  48. The applicants suggest that HHJ Kaul QC failed to point out or comment on sufficiently that the Crown's experts were full-time police employees. There was no evidence from any of the car manufacturers supporting the position taken by the Crown's experts. Significantly, if access to the expertise was limited by the manufacturers, no defence expert would or could be allowed equal access to it and this should have been made clearer. Essentially the Judge told the jury that if they considered the PII restriction unfair, they could take this into account. This direction failed to recognise that the Jury were oblivious to "in camera" PII hearings, the duties of an expert and or the history of this case.
  49. The Judge's refusal to admit the video of the 'reprehensible conduct' of DC Davis

  50. Although no Defence Case Statement was ever served by Franckevicius, Ms Vallejo insists she made the defence case clear in court and in her applications for disclosure. His defence was one of "collective dishonesty, negligence, fabrication and individual dishonesty and negligence." She described the incident in which DC Davis was seen in a violent confrontation with one of the Meehan 1 suspects as a "game changer." Some of the Meehan 2 officers who gave damning surveillance evidence against the applicant were present at the time. Their credibility and that of DC Davis were at the heart of the prosecution case against the applicant and she insists she should have been allowed to deploy this material to discredit them with it.
  51. The Judge's refusal to discharge the Jury when DC Davis referred to pepper spray

  52. Ms Vallejo claimed that the officer deliberately ignored the Judge's ruling, of which he was well aware. He mentioned the spray in an attempt to blacken the name of the applicant. Once the damage had been done the Judge was obliged to discharge the jury.
  53. The Judge's conduct of the trial and attitude to defence counsel

  54. Ms Russell complains that during the trial, the Judge demonstrated disproportionate hostility to the defence to the extent that the applicants were deprived of a fair trial. She relied on a number of incidents in support of this proposition.
  55. (i) During the first trial the jury sent a message or messages to the Judge in which complaint was made about rude and childish behaviour on the part of counsel 'in the front row'. This was taken by the Judge to mean counsel for the applicants. At the Pre Trial Review on 19 December 2015, the Judge expressed criticism of the applicants' counsel and indicated she did not intend to allow them to behave in the same way as they had in the first trial. This caused concern amongst both counsel and their lay clients.

    (ii) Before the re-trial began there was an email exchange between defence counsel and the Judge. The Judge reminded all counsel that she expected them to behave with courtesy towards each other.

    (iii) On the first day of the re-trial, Ms Braun stood in for Ms Russell who was engaged in another trial that had overrun. Ms Braun requested that the joint expert report and prosecution hearsay applications, both of which were 'crucial' issues for the applicant Barkauskas, be deferred until Ms Russell could attend. It is said that the Judge made unnecessary sarcastic and critical remarks regarding Ms Russell and her failure to attend the first days of the original trial.

    (iv) Ms Russell sent an email protesting to the Judge and in which she expressed her understanding of what was meant to happen on the first day of the re-trial. The Judge responded in some detail, denying the assertions made by Ms Russell and repeating her claim that Ms Russell had been absent at the same stage in the original trial.

    (v) On 27 January 2016 , the Judge stated in front of the defendants that counsel's cross examination in the original trial as to a mistake made by the investigating officers about the name of the garage was :

    "some of the poorest cross-examination I have ever seen"
    "TT Autos or TT Motors doesn't really matter does it officer?"

    (vi) The Judge summoned counsel's instructing solicitors to court on two separate occasions to criticise counsel. On the first occasion, the Judge reminded Ms Russell's instructing solicitor of his duties to ensure the court was treated with courtesy and according to professional Codes of Conduct. On the second occasion, the Judge wished to know who was responsible for sending an email to the Resident Judge at Snaresbrook in which it was asserted that an agreement had been reached as to the release of £1000 from the applicant's frozen assets for the payment of legal fees.

  56. This repeated criticism of defence counsel had already led the applicant Barkauskas writing to the Judge asking her if as a result of the criticisms she was suggesting he should change counsel.
  57. Furthermore the Judge made frequent references to consulting with other Judges regarding the trial, to the trial being monitored, and to counsel being able to add a ruling adverse to the defence to their hundreds of grounds of appeal. All this gave the applicants the impression that there was a process regarding their trial where opinions were being offered to and acted upon by his trial Judge to which he was not privy and in which he had no representation, and that he was bound to be found guilty. Whilst it is accepted that most of this happened in the absence of the jury, it nevertheless impacted on the general atmosphere in the court and on the applicant's perception of the fairness of his trial.
  58. Ms Russell also complains that she, Ms Vallejo and counsel for the first defendant were singled out for 'unfair' treatment. The Judge was not supportive of them in any way even when the jury made unjustified criticisms of their 'tone' and behaviour. The Judge did not criticise others when they did something wrong but was ready to criticise Ms Vallejo and Mss Russell. At the same time, the Judge was 'frequently supportive of or jocular with counsel for defendants four and five'. Neither were involved in any substantial cross-examination. This meant that the counsel criticised were those playing the active part.
  59. Finally on this topic Ms Russell took exception to the Judge's attitude to the jury. She was unhappy with the fact that the Judge 'frequently addressed the jury directly in an informal manner', and commented on how awful the trial was. In addition, members of the jury were allowed every request for time off so that weeks were added to the trial length. Yet, when Ms Vallejo asked the court not to sit for half a day to take her mother for some heart tests, the Judge decided to consult the list officer. There followed an unfortunate email exchange in which the official concerned expressed harsh criticism of Ms Vallejo. When Ms Russell was ill for two days, the Judge demanded she provide a medical certificate.
  60. Conclusions

    Refusal to order greater disclosure in the PII Rulings

  61. First, we emphasise the material of which disclosure was sought was not unused material. It was material upon which the prosecution relied but which was covered by PII. The issues for the Judge were first whether the material was properly covered by PII and second whether the applicants could receive a fair trial without its disclosure. Counsel have conceded she was correct to find that the material was covered by PII. The only issue for us, therefore, is whether she was correct also to find that the applicants could have a fair trial absent access to the material and or the appointment of special counsel.
  62. We have been through the material on which the Judge ruled and the transcript of the PII hearings. It is obvious that the Judge conducted a thorough and scrupulously fair PII exercise. Having established the general principle that the nature and positioning of the covert markings should not be revealed, because to do so would fundamentally undermine the system of covert markings, she applied that principle to the facts of the case. She assessed with great care whether a fair trial was possible. With the assistance of prosecution counsel and both experts (under oath) she went through every covert marker, meticulously checking that prosecution counsel had seen and verified the marks relied upon by the expert, that both the experts and counsel agreed that 'nothing undermined the prosecution or assisted the defence' and that the schedule accurately recorded the data. Although this was not strictly the test to be applied, it is clear that she had the fairness of the trial well in mind and thereafter kept the position under constant review.
  63. We are not surprised she did not depart from her original decision not to allow disclosure of the methodology. None of the vehicles or the parts was identified solely on the basis of covert markers. They were identified as stolen on a combination of open and closed material. The open material was available to the defence expert and he could have examined the vehicles and the parts to satisfy himself that the open data was reliable. For some reason, he never did examine the vehicles or the parts; nor, as far as we can tell, did he examine the receipts produced by Barkauskas in the witness box, claiming they supported his defence of buying car parts legitimately. These were all matters that could have been explored but the defence chose not to do so.
  64. In any event, the covert markers were a relatively small part of the prosecution case. The prosecution case depended substantially on the overt theft indicators, the surveillance evidence, number plate recognition and a great deal of physical evidence found in the form of vehicles and parts and accompanying paperwork.
  65. Accordingly, we are satisfied that the failure to reveal the methodology in relation to covert markers did not undermine the fairness of the trial, that the defence had sufficient disclosure and sufficient material served with which to challenge the prosecution case and that the jury was furnished with sufficient evidence to enable them to make a judgment regarding the legitimacy of the vehicles and the parts. They clearly did not use this as the only evidence against the defendants in their charge, as the acquittal of Bereika demonstrated.
  66. The Judge erred in permitting repeated and / further expert evidence

  67. We were puzzled by this ground. As part of her 'stringent' case management of the trial the Judge ordered the prosecution to serve all the evidence on which they relied by 8 January 2016. Thereafter, they were to serve no further evidence (for their own purposes). Nearly all the additional statements and evidence from Mr King were triggered by requests for information by the defence. As it seems to us, prosecution counsel and the Judge became far too accommodating of defence counsel's demands. There seems to have been a misunderstanding on the part of defence counsel as to what can be legitimately demanded of the prosecution and what cannot. Provided defence counsel did not stray into the area of covert markers, many of the issues upon which they required an answer from the prosecution or Mr King, out of court, could and should have been asked in cross-examination.
  68. The Judge's directions on expert evidence

  69. The written directions were made available to counsel prior to summing up and were the subject of exhaustive discussion and alteration. The directions in respect of the expert evidence coupled with those given to the jury at relevant stages in evidence, were wholly appropriate. There was no need to go further and direct the jury to consider whether the experts had given impartial opinions because by the end of the trial their bona fides and their expertise were not in doubt. This ground is unarguable.
  70. The Judge's refusal to admit the video of the 'reprehensible conduct' of DC Davis

  71. The Judge carefully analysed the defence case and the issue to which the video was said to be relevant. The fact that the officer in charge of the case may or may not have acted with excessive force in arresting a suspect in another operation does not go to any of the issues identified by Ms Vallejo. Violence was not alleged in this operation. It would also have involved extensive satellite litigation, exploring the use of allegedly excessive violence against a man who had not himself complained about his treatment and seems to have suffered no significant injuries, in circumstances where the prosecution claimed that force was justified because the suspect was resisting arrest. Several witnesses would have had to be cross-examined about the arrest: DC Davis to establish what he did and whether his actions were justified, and his colleagues as to what they saw and whether their failure to make notes (if they did) was justified. The Judge was entitled to conclude this was unnecessary and inappropriate. We also question whether this material provided sufficient foundation for Ms Vallejo properly to put to the officers an alleged conspiracy to pervert the course of justice.
  72. The Judge's refusal to discharge the Jury when DC Davis referred to pepper spray

  73. This was another unnecessary application and is an unarguable ground of appeal. First, the Judge found that DC Davis inadvertently mentioned the CS spray located in the boot of the applicant's vehicle not deliberately as asserted by counsel. The Judge was in a far better position than us to make such an assessment which was not arguably irrational. Second, the Judge gave all parties an opportunity to make representations and decided that, with appropriate directions to the jury, the trial could continue. This was the only proper conclusion to draw. The application to discharge the jury was totally disproportionate. The impact of the jury learning the applicant had a pepper spray in his car must have been negligible. Thereafter, the Judge directed the jury in robust terms that the evidence was irrelevant and was to be disregarded.
  74. The Judge's conduct of the trial

  75. It is a sad fact that the relationship between counsel for the applicants and the Judge deteriorated significantly. Our focus, as we explained at the beginning of this judgment, has been the safety of the convictions. It is not for us to determine whether counsel behaved unprofessionally and, even if we had been inclined to undertake that task, problems with transcription mean we do not have the necessary material. However, as we have endeavoured to make clear in this judgment, we have a number of very real concerns about counsel's behaviour.
  76. Many of the defence applications were totally unmeritorious, bad points were taken and much court time wasted. Some of the submissions (of both the applicants' counsel) suggest a lack of proper respect for the court. Ms Russell's complaints about the Judge's favouring others such as the jury or co defending counsel indicate an unfortunate over sensitivity, lack of objectivity and lack of understanding of the role of the Judge in managing a jury trial. We do not expect counsel to behave or react in this way.
  77. We accept that, with the benefit of hindsight, and not having ourselves been troubled by a "constant barrage" of demands and complaints, it might have been better if the Judge had not expressed her feelings about counsel's behaviour to the extent that she did in the presence of the defendants. It would also have been better had the Judge kept her email communications to a minimum. It is one thing to send out directions or simple requests electronically, it is another to send emails containing explanations and reasons for rulings and thereby prompting an electronic debate with counsel. This kind of discussion should be reserved for court hearings.
  78. Nonetheless, the Judge did not allow her undoubted exasperation at counsel's behaviour to affect the fairness of the trial. None of the incidents on which reliance was placed occurred in the presence of the jury and there is nothing before us to suggest that the Judge's criticism of defence counsel impacted on the applicants personally. If they had any real concerns of the kind suggested by Ms Russell, we have no doubt they would have pursued them.
  79. Appeal against Sentence (Franckevicius)

  80. Franckevicius is now aged 38. He had previous convictions for failing to provide a specimen and assaulting a constable.
  81. In her sentencing remarks, the Judge described this as a careful, and sophisticated operation involving high value cars. The investigation had been hugely labour intensive and a strain on taxpayers' resources. Franckevicius was the mastermind behind the operation. He is an intelligent man with specialist knowledge who was also 'thoroughly dishonest and manipulative'.
  82. The Judge regarded count 2 as the more serious offence. Had the two counts stood alone, she would have sentenced the applicant to a†term of imprisonment of six years on count 1 and seven years on count 2. However, to reflect the principle of totality and to avoid any double accounting she decided to impose a sentence of four years on count one and five years on count two.
  83. Grounds of Appeal

    Role of the applicant

  84. The Crown's case throughout was that Franckevicius and Lapinskas were responsible for stealing and storing the cars. Barkauskas and Bereika were responsible for dismantling the cars and Krivicks received the stolen goods. Yet, when Barkauskas was cross-examined, the Crown put to him that he and Bereika directed and ordered Franckevicius and Lapinskas as to what cars they were to steal. This, it is said, suggested that the applicant was lower down in the hierarchy and was in line with the Crown's Opening Note. At sentence, the Judge opined that Franckevicius was the mastermind and sentenced him accordingly. It was submitted there was no proper evidential basis upon which such a conclusion could be drawn. Accordingly, there was no proper reason, for the disparity in sentences.
  85. Imposition of consecutive sentences

  86. The Judge erred in ordering the sentences on the two conspiracies to run consecutively when it was essentially the same criminal conduct in both.
  87. Conclusions on Sentence

  88. It was the Judge's task to assess the roles played by each defendant, based on the evidence called, however the Crown put their case in cross examination to one of the defendants. There was ample material upon which she based her conclusion that Franckevicius played a major role. We reject the first ground.
  89. Although we see the argument that in some ways the offending was one course of conduct, the offending was charged as two conspiracies and the jury convicted of two conspiracies. The offending was very serious and the conspiracies embraced numerous substantive offences. The value of the goods stolen was extremely high. The culpability was very high. The starting point as recommended in the Sentencing Council's Definitive Guideline for one substantive offence of theft in category 1A is 3 years 6 months with a range of 2 years 6 months to 6 years. The nature of the offending with aggravating features merited a sentence at the top of the range, if not beyond, for each conspiracy. The Judge very fairly discounted sentences at the top of the range to eliminate any element of double counting and to reflect totality. Given the applicant's overall culpability and the harm he caused, no complaint can be made of a total sentence of nine years after a contested trial.
  90. For all those reasons, the applications are dismissed.


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URL: http://www.bailii.org/ew/cases/EWCA/Crim/2017/1210.html