England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2

Tuesday 28th January 1997

B E F O R E:

LORD JUSTICE AULD

MR JUSTICE NEWMAN

and

HIS HONOUR JUDGE MARTIN STEPHENS QC

(Acting as a Judge of the CACD )

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R E G I N A

-v-

DONALD WILLIAM WYATT

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Computer Aided Transcript of the Palantype Notes of

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MR J BULLEN appeared on behalf of the CROWN

MR P CLEMENTS appeared on behalf of the APPELLANT

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JUDGMENT

(As Approval )

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LORD JUSTICE AULD: On 14 August 1996, before His Honour Judge Mackean in the Crown Court at Portsmouth, the appellant, Donald William Wyatt, pleaded guilty to an offence of having an offensive weapon and was sentenced to 6 months' imprisonment, the sentence to be suspended for two years. He had originally been tried on an indictment containing alternative counts of attempted murder and of wounding with intent to do grievous bodily harm. The jury had acquitted him of the offence of attempted murder and had been unable to agree on the wounding charge.

When the matter eventually came for re-trial, on the application of counsel for the prosecution the indictment was amended to add the offensive weapon charge, and following his plea of guilty to that charge no evidence was offered on the wounding count. Notwithstanding his plea of guilty to having an offensive weapon, he appeals against that conviction by leave of the single Judge.

The facts briefly were as follows. The appellant is aged 64. He lived in a block of flats. Also living in that block of flats was a man named Overton who was 70 or over. The two men were not getting on well. There came a time when the bad blood between them led the appellant to go to Mr Overton's flat, taking with him a hammer. Just outside or on the threshold, or inside, there was an exchange of violence between them during which the appellant struck Mr Overton with the hammer. Mr Overton sustained serious injuries such that he bled profusely inside the flat.

The defence case at the trial was that the appellant had acted in self-defence in wielding the hammer, that he had not entered the flat, and that the exchange between him and Mr Overton took place by the doorway when Mr Overton was attacking him. As we have said, there was a good deal of blood inside the flat. Samples were taken for analysis before the trial but no analysis was ready by the time of if and thus there was no evidence before the jury which could identify whether it was Mr Overton's or the appellant's or both. Such evidence would have gone to the issue raised by the appellant in his defence of self-defence, namely that he had not gone into the flat at all.

Arrangements were made for a re-trial on the wounding charge. A fixture was made. However, the unavailability of the result of a blood sample analysis continued to be a problem. It led the Prosecution to make, in turn, two applications to break the fixture for trial in the hope that eventually the result would be provided to the parties and to the court. The first such application was made to Mr Justice Tuckey on 20th May 1996, sitting at Winchester. Prosecuting counsel was then Mr Glenser and Defence counsel was then Miss Wilding. Mr Glenser applied to vacate the fixture, explaining the problem to the Judge about the lack of readiness of evidence as to the blood sample. In the course of his application he said this:

"Depending on the results of the DNA evidence the Crown may be in a position to take a different view which would be in the defendant's favour. I cannot put it more highly than that at this point."

Mr Justice Tuckey asked "Have you put it more specifically to Miss Wilding?" Mr Glenser replied "My Lord, I have". Mr Justice Tuckey asked "What is the attitude of the Defence?" Miss Wilding said "My Lord, as Mr Glenser indicated he has put it more strongly to me". Mr Glenser returned to the point later on in his submissions to the Judge. He said:

"Put simply that is the application; [namely to adjourn the trial] that is the reason for it. It may well be in the defendant's favour."

The Judge, in agreeing to vacate the fixture, observed that he thought that perhaps the evidence, when it came to the blood sample, would break the impasse either resulting in the Crown taking a different view of the case or being able to continue with it.

The stronger terms that Mr Glenser had used to Miss Wilding outside court were, on Mr Clement's account to us, clear that the matter would be dropped if the blood in the flat was found not to be the appellant's, an indication that was, as one would expect, conveyed to the appellant.

There was continued delay in the blood sample analysis and it became necessary to appear before the court to vacate the adjourned fixture which had been made as a result of the application on 20th May 1996. This time the matter came before His Honour Judge Pryor on 19th June 1996, sitting at Portsmouth, and this time Mr Bullen appeared on behalf of the Prosecution and Mr Clement appeared on behalf of the appellant.

Mr Bullen is a senior and experienced counsel practising in criminal and other matters on the Western Circuit. He is also a Recorder of the Circuit. He took the view that the Prosecution should apply for a further adjournment to enable the blood sample evidence to be provided for the forthcoming trial, but that if the evidence when obtained did not support the Prosecution's case that the appellant entered the flat of Mr Overton, the whole prosecution should be dropped.

In the course of his submissions to Judge Pryor he said:

"The position is that I have already said that if -- and I make it perfectly plain I have advised and it has been passed onto the defence so that they know the position -- Mr Wyatt's blood is not found within the flat, then clearly the prosecution will not continue. If it is, however, we feel that we must continue because he obviously has followed the victim into the flat and attacked him there and that negatives any element of self defence. It really turns upon the forensic evidence. That is the importance of it."

After referring to continuing delays in obtaining the expert evidence he continued with these words:

"My learned friend knows about that position and is sympathetic to it, I know, and obviously sees the prospect of the Crown offering no evidence, if the evidence goes in their favour, as being an advantage rather than risking a trial with a question mark hanging over the issue as to whether it was self defence or not.

In making those remarks, Mr Bullen has told the court, he had no contemplation of the prosecution proceeding in any other form, by the addition of a count or otherwise. Indeed, the question of self-defence could not arise on the additional count which the prosecution later sought to rely upon, namely the possession of an offensive weapon. Mr Clement appears to have had the same understanding. In the light of what Mr Bullen had said, he did not object to a further adjournment of the matter. He said:

"Your Honour, this is one of those rare occasions where I do not resist, is the short point, given, if I can use the unattractive phrase, the carrot that has been dangled before the defence that if results come back which are favourable to the defence that will be the end of the matter. With that in mind I do not resist my learned friend's application."

We draw attention to the words in that passage "that will be the end of the matter".

Eventually, the evidence of analysis of the blood samples was received by the Prosecution. It showed that none of the samples of blood found inside the flat matched the blood of the appellant. Counsel, still Mr Bullen and Mr Clement, then appeared before the court again, this time before His Honour Judge Mackean on 14th August 1996 at Portsmouth. Mr Bullen was mindful of what he had said on the previous occasion and was still of the view, given the way the blood sample analysis had turned out, that the matter should not proceed in any form. However, after a conference with a representative of the Crown Prosecution Service, that representative prevailed upon him to make the application that he did to add a count to the indictment charging possession of an offensive weapon, whilst at the same time offering no evidence on the wounding charge.

It seems that Mr Bullen must have indicated that change of tack to Mr Clement before the matter was put to the Judge. Mr Clement, who got to his feet first, applied to the Judge to stay the proposed course of action by the prosecution and any further proceedings in the matter on the ground that it was an abuse of process. He referred the Judge to the history that we have summarised and the previous indications given by both prosecution that the matter would not proceed if the blood sample evidence analysis proved to be adverse to the prosecution case on the wounding.

Mr Bullen's response was simply to make the application to add the possession of an offensive weapon count to the indictment. He indicated in doing so that he would be offering no evidence on the wounding count.

The Judge in a short ruling referred to two categories, as he described them, of abuse of process: first, the prejudice to a fair trial; second, that even if a fair trial was possible the occurrence of something so unfair that, regardless of prejudice, the proceeding should not continue. He took the view, and so expressed himself, that there was no reason why the appellant could not have a fair trial on the charge of being in possession of an offensive weapon. However, he did not go on to deal with the second category. He thus gave the leave for the new count to be added. The appellant, faced with potentially overwhelming evidence on that narrow issue, the possession of the hammer as an offensive weapon, pleaded guilty to it, as we have said, and was sentenced as we have indicated.

Mr Clement on his behalf submitted in support of his appeal against conviction that, by allowing the prosecution to amend the indictment in that way, the Judge failed properly to consider the change of stance of the prosecution and to apply the test that he had identified in one of the two categories of abuse of process.

Mr Clement indicated to the court his understanding, as we have summarised it, on the second application to break the fixture, a clear understanding that if the blood sample analysis was proved to the prosecution then that would be the end of the whole matter. He submitted that the change of stance by the prosecution in seeking to add the third charge amounted to an act of bad faith. He elaborated upon that submission by saying that the prosecution had dictated the pace of the proceedings and only then, at that last moment when the potential evidence was clearly against it, changed its mind in defiance of all the indications previously given to the appellant and his advisers. He criticised the Judge for failing to deal with the second category of abuse of process.

Mr Bullen in reply has confirmed the facts as we have summarised them both as to what occurred and his intention on the appearance before His Honour Judge Pryor to break the fixture. He said, however, that one purpose, an important purpose, which lay behind his application to add the count of possession of an offensive weapon was the need to keep the peace between these two old men living in close proximity in a block of flats.

Judge Mackean said, there are two categories of abuse of process which, may justify a court in staying proceedings. They are prejudice affecting the fairness of the trial and conduct which, even though it may not affect the fairness of the trial, is so unfair or wrong that the court should mark it by not allowing the prosecution to proceed.

The second category, with which the Judge did not deal, is clearly established in a number of authorities. I need refer only to two. Hui Chi-ming v. The Queen [1992] 1 AC 34, PC decision of the Privy Counsel, and R. v. Beckford (1996) 1 CrAppR 94. The jurisdiction to stay for abuse of process of either category should also be exercised with considerable care, and it is a field in which citation of other cases, often on quite different facts, is rarely helpful. The question in each case is frequently a matter of delicate balance of competing public and private interest where the court has to focus with care on the particular circumstances before it.

Counsel have also drawn to our attention a recent unreported decision of this Court R. v. Bloomfield 25th June 1996. It has some similarities to the case before us. However, its facts and the issue arising from them were more sharply defined than in this case. In summary, at a plea and directions hearing prosecuting counsel then instructed informed defence counsel in the clearest terms that the Crown wished to offer no evidence against the defendant on a particular charge. Counsel explained that that was because the prosecution accepted the defendant's account as to that matter. Prosecuting counsel went on, however, to indicate that he would rather not give that indication in open court in the course of the plea and directions hearing because it would be embarrassing to the police and prosecution if no evidence were to be offered that day. It was therefore suggested that if the plea and directions could be adjourned until a later date no evidence would be offered at that adjourned hearing. Counsel went to see the trial judge in his room to explain the position to him. Prosecuting counsel said to him:

"What I would like to do today is to adjourn the plea and directions hearing and relist it 'for mention' to offer no evidence."

Subsequently, another prosecuting counsel was instructed and, after a conference with the representative of the Crown Prosecution Service responsible for the case, the Crown Prosecution Service indicated that it intended to continue with the charge. There was an application to stay the proceedings as an abuse of process, and the matter eventually came before this Court presided over by Staughton LJ. The Court held that it was clearly an abuse of process. In the Court's judgment, given by Staughton LJ, he emphasised that the statement made by the first prosecuting counsel was not merely a statement to the defendant or his legal representative, it had also been made in the presence of the Judge. Staughton LJ continued:

"It seems to us that whether or not there was prejudice it would bring the administration of justice into disrepute if the Crown Prosecution Service were able to treat the court as if it were at its beck and call, free to tell it one day that it was not going to prosecute and another day that it was."

As a result, the conviction which followed from that proceeding was quashed by the court.

Returning to this case, if the indication given by the Crown had been confined to what was said before Mr Justice Tuckey at the first application on 20th May to break the fixture, the appellant may not have had so strong a sense of grievance by the prosecution's later change of stance. However, it was the second application to break the fixture before Judge Pryor on 19th June which made prosecution's position on the matter crystal clear.

As we have said, it was Mr Bullen's understanding that the matter would not proceed if the scientific evidence proved to be unfavourably to the prosecution's case. It was also Mr Clement's understanding that the matter would not proceed in that event, and Mr Bullen knew that. It seems to us in the circumstances that the prosecution's very late change of tack on the third occasion when the matter came before the court was very unfair to the defence. It was so unfair that we regard it as an abuse of process which entitles, the appellant to have the conviction on his plea of guilty quashed, a plea of guilty forced upon him by the Judge's ruling.

We take the view that the intervention by the Crown Prosecution Service at that late stage, prevailing over counsel for the prosecution's better judgment, was unfortunate. Counsel who has the conduct of the matter, who is experienced and who knows what has passed between him and his opponent, should, it seems to us, be allowed to hold firm to his earlier and clearly stated intention so as to avoid an injustice such as this.

For all those reasons we shall quash the conviction and allow the appeal.