England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2

Thursday 5 February 1998

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND

(Lord Bingham of Cornhill )

MR JUSTICE GARLAND

and

MR JUSTICE RIX

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R E G I N A

- v -

ANTHONY SIMPSON

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Computer Aided Transcription by

Smith Bernal, 180 Fleet Street, London EC4

Telephone 0171-421 4040

(Official Shorthand Writers to the Court)

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MR M TOMASSI appeared on behalf of THE APPELLANT

MR A BAYLISS appeared on behalf of THE CROWN

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J U D G M E N T

(As Approved by the Court )

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THE LORD CHIEF JUSTICE: This appeal was argued in this court on 22 January 1998 when the appellant was represented by counsel who fully argued the grounds upon which leave to appeal had been given. The court reserved judgment, indicating that it proposed to give its decision in writing.

On the day following the appeal the appellant on his own behalf wrote a letter to me personally, which I only saw at a much later date, in which he seeks to raise a series of points which did not feature in the grounds upon which leave to appeal was granted and which had not been the subject of argument in court.

In the light of this letter it seemed right to the court to invite the observations of counsel representing the appellant. Although he acknowledges that his personal position is not of the most welcome or straightforward kind, he has indicated to the court that he does not feel it possible to argue any of the points raised in this letter. That indication comes as no surprise. Even if counsel were to have taken a different view, the obvious difficulty would have arisen that these points are being raised well after the expiry of the time limited for appeal. In that situation we do not think it right to invite detailed arguments on these points either from the appellant's counsel or from the appellant himself. That being so we propose to hand down the judgment as prepared, which is the judgment of the court delivered by Garland J. A copy will be made available to counsel, to the appellant and to the press. The effect of the judgment is that the appeal will be dismissed.

MR JUSTICE GARLAND: On 24th October 1996 in the Crown Court at Snaresbrook the Appellant was convicted by a majority of 10 to 2 of causing grievous bodily harm to Angus MacLellan with intent to do him grievous bodily harm. An alternative count of inflicting grievous bodily harm was ordered to lie on the file [1]. The Appellant was not sentenced until 21st January 1997 after the trial of others, including his wife and natural father, for conspiring to pervert the course of public justice and doing acts tending and intended to pervert the course of public justice. He was sentenced to four and a half years imprisonment. He appeals against conviction by leave of the single judge. His application for leave to appeal against sentence was refused and has not been renewed.

The incident that gave rise to the proceedings occurred on 16th February 1995 when the Appellant entered a public house, “The Black Boy”, in St Mary Cray, Kent, with an unknown man. He then proceeded to approach and strike with his fist the off-duty tenant of “The Black Boy”, Angus MacLellan, causing him numerous serious facial injuries. It was in evidence that as the Appellant struck the blow, he said, “This is for you, I’m taking you out”. Mr MacLellan fell to the floor, the Appellant then picked up a wooden bar stool and struck him twice on the ribs. The Appellant then left the public house and surrendered to the police on 23rd February. The estimates of the number of persons in “The Black Boy” varied from between six and twenty-five, some of whom were playing a card game at a table. Apart from MacLellan, the Crown relied on four witnesses, Nicolette Haslam, the licensee, Mandy Mitchinson, a part-time barmaid, Nicholas Randall, a casual helper at “The Black Boy”, and Philip Cleary, a customer who had been in the saloon bar. Pearl Collins, a barmaid, had been in “The Black Boy” earlier in the day and provided a witness statement describing a threat made by the Appellant to Mr MacLellan, but she was never called as a witness nor was her evidence read.

The appellant’s case was that on the night of 16th February he had been sitting in another public house and had overheard two people commenting upon Mr MacLellan being abusive about the appellant’s recently deceased brother, Billy, to customers in “The Black Boy”. He therefore went to “The Black Boy” to stop Mr MacLellan “badmouthing” his late brother. When he entered he was greeted by some of the customers and then heard from down the bar MacLellan say, “Fuck off out of the pub”. He went towards MacLellan who picked up a bar stool and held it between them. The Appellant grabbed hold of the stool, there was a struggle until MacLellan released it and the Appellant dropped or threw it behind him. As he did so, MacLellan grabbed hold of the appellant’s head in an arm lock, he had difficulty breathing and was in pain. He swung a punch or punches at MacLellan’s ribs and then as he had not been released he swung a fist towards where he thought MacLellan’s head was. The fist and the head connected but the Appellant did not know where. MacLellan fell to the floor and the Appellant walked out. He denied striking MacLellan with the bar stool and maintained that he had acted in self defence and had no intention of causing any serious injury. MacLellan was taken to hospital. His nostrils were blocked with blood; he had serious bruising to his chest wall consistent with punching or kicking and, although there was some dispute as to the precise nature and extent of the injuries to his face and how they may have been inflicted, he had a number of fractures of the bones of his face, a fracture of the nasal septum and a fracture of the midline of the palate.

The Appellant was arrested and charged on 23rd February. On 24th April at Bromley Magistrates’ Court there was an old-style committal at which Angus MacLellan and Nicolette Haslam gave evidence. Nicholas Randall attended court but did not give evidence. On 17th May, Lillian Simpson (the appellant’s wife) took Maria Hoadley, Janet Baker and William Waite (Maria Hoadley’s boyfriend) to see a solicitor, Lawrence Smith. Lesley Webb had been expected to go but was not at home when they called to collect her. The solicitor took notes which were later typed as proofs of evidence and sent to the makers for signature. They were to the effect that the witnesses had been in “The Black Boy” and had seen Angus MacLellan attack the Appellant. On 22nd May, there was a Plea and Directions Hearing at Croydon Crown Court; the case was warned for listing from 12th June. On 26th May, Maria Hoadley, who was unwilling to commit perjury, was authorised as a Participating Informant. It is necessary to refer to some of the information which she gathered. On 29th May she went to the appellant’s house: Lillian Simpson, John Crittenden (the appellant’s natural father) and a man called Ken, were present. John Crittenden proposed a scheme, which would have involved Maria Hoadley, to intimidate Nicholas Randall so as to make him withdraw his evidence. This subsequently became Count 2 of an indictment. On 31st May she again went to the appellant’s house; Lillian Simpson, John Crittenden and Pearl Collins were present. John Crittenden and Lillian Simpson put pressure on Pearl Collins to renege on the witness statement that she had given to the police. This subsequently became Count 4 of the indictment. On 4th June, Lillian Simpson told Maria Hoadley that three other people, Danny Stevens, Mark Howell and Mark Farmer would make false statements, and on the following day she went with Lillian Simpson to see the same solicitor in order that proofs could be taken from them. Danny Stevens was to say that he had been in “The Black Boy”; Mark Farmer and Mark Howell were to say that they had heard Nicholas Randall telling someone that Angus MacLellan had paid him £50 to give false evidence against the Appellant.

Maria Hoadley was told that there would be a gathering of those prepared to give false evidence either immediately before the appellant’s trial or at the end of the first day. A decision was therefore taken to supply her with covert recording apparatus during the last two or three days before the trial in order to obtain if possible an “unassailable record” (see SMURTHWAITE and GILL [1994] 98 Cr App R p.437 ) as she had a bad record and had made a false witness statement in the past. It was thought that unless her evidence was substantially supported there was little chance of a Jury accepting her as a reliable witness. On 12th June, a conference took place with Prosecuting Counsel so that he could be informed of the existence of the alleged conspiracy to pervert the course of public justice and of the situation of Maria Hoadley as a Participating Informant. The Police believed that Maria Hoadley’s life would be in danger if her role was discovered by the conspirators but they wished to obtain a taped record of the expected meeting while at the same time appreciating that Maria Hoadley could not sensibly be expected to go into the witness box, also conceiving it to be their duty to prevent the false witnesses from committing perjury. It was ascertained that the case was to be listed before His Honour Judge Devonshire QC early the following week and Counsel advised that an appointment should be made for an ex parte application in order to:

(1) inform him that there was a likelihood that the trial would be interrupted by the arrest of the defendant and his witnesses;

(2) obtain a ruling that the information relating to the alleged conspiracy should not be disclosed to the Defence; and

(3) seek a ruling, as a matter of public interest immunity, that Maria Hoadley’s status as a Participating Informant should not be revealed.

An ex parte application was made on Friday, 16th June. Counsel was accompanied by the Branch Crown Prosecutor and a senior police officer. The Crown sought and obtained leave not to disclose the information relating to the alleged conspiracy or the status of Maria Hoadley.

The trial commenced on Tuesday, 20th June. The meeting of witnesses, which was expected to be at John Crittenden’s house, had not taken place. In fact he was not informed of the date of the trial in order to avoid a possible confrontation with Bender Simpson, the appellant’s stepfather, who had apparently announced his intention of being present at court. Lillian Simpson was present in the public gallery. During the evening of the 20th, Maria Hoadley visited Lillian Simpson and was able to tape record her putting pressure on Pearl Collins to make a false statement. She was also able to gather further information relevant to Count 2, the intimidation of Nicholas Randall. On the 21st the trial continued, Lillian Simpson was again in the public gallery. Maria Hoadley and Danny Stevens attended as potential witnesses. A decision had been taken to arrest the conspirators that day: Mark Howell was arrested during the morning at a Magistrates’ Court but during the short adjournment at Croydon Crown Court a tape recording was obtained of Lillian Simpson coaching Danny Stevens on his evidence and telling him to deny having spoken to her if he was asked about it. At the close of the Crown case, the Appellant, Lillian Simpson, Danny Stevens and the solicitor were arrested; the other conspirators were arrested shortly afterwards. The appellant’s then Counsel, supported by Counsel for the Crown, applied for the Jury to be discharged; this was done.

The committal proceedings on the charges of conspiracy and doing acts tending and intended to pervert the course of public justice were due to take place in January 1996. It was to be an old-style committal estimated to last three days. Maria Hoadley was taken ill, and in order to avoid delay the Crown applied for and were given leave to prefer a Voluntary Bill of Indictment. This joined Count 1 which charged the Appellant with causing grievous bodily harm with intent with four other counts. Count 2 charged John Crittenden and Lillian Simpson with conspiracy to pervert the course of justice by interfering with Nicholas Randall; Count 4 charged them with doing an act tending and intended to pervert the course of public justice by seeking to persuade Pearl Collins to sign a false statement; Count 5 charged Lillian Simpson alone for a similar offence in relation to Pearl Collins; Count 3, the principal conspiracy count, charged Lillian Simpson, Danny Stevens, Lesley Webb, Janet Baker, Mark Howell and Mark Farmer with conspiring together to give false evidence in the prosecution of the Appellant at Croydon. The application for the Voluntary Bill was not before this court, but Mr Bayliss for the Crown informed us that it contained particulars of the ex parte application to His Honour Judge Devonshire QC. In August 1996, the case was transferred to Snaresbrook Crown Court and on 2nd September an application was made on behalf of the Appellant to sever Count 1 from the remaining counts. The application was supported by some of the defendants but opposed by the Crown. The Judge (His Honour Judge Radford) ordered severance. There then followed a further application as to the order of trials, all matters being ready for trial. Counsel then acting for the Appellant applied for the trial of Counts 2 to 5 to be heard first; Counsel for the Crown, supported by Counsel for all the other defendants, applied for the trial of Count 1 to be heard first; in the exercise of his discretion, the Judge ruled that Count 1 should be tried first. The trial began on 14th October but on the 16th the appellant’s Counsel and Solicitor withdrew and the Jury was discharged. The trial began afresh on 21st October; Mr Russell-Flint, who then appeared for the Appellant, renewed the application for the trial to be adjourned until Counts 2 to 5 had been tried. The Judge adhered to his earlier ruling in the following terms:

“I considered the submissions made on your client’s behalf and considered what the effect of any evidence would be having regard to the papers that I had and the difficulties that might be faced, whichever order of trial it was, in calling certain witnesses, and considered that it seemed to me right that the incident which was furthest away in time, which gave rise to the court proceedings in the first place should take precedence, and those persons who had recollection, including witnesses for the Crown, and I have to consider in the interests of justice both sides that matter is resolved first rather than second; but of course I hear what you have said and you have made clear what your client’s position is, but I do not know that I can review my ruling. In any event, I am not minded to.”

The trial proceeded. On 24th October the Appellant was convicted by a majority of 10 to 2. The trial of the conspirators began on 4th November and concluded on 31st January 1997. Lesley Webb was taken ill and the trial continued in her absence. She subsequently pleaded guilty to Count 3; the remaining conspirators were convicted. On Count 2, John Crittenden was acquitted and Lillian Simpson convicted; the Judge directed Not Guilty verdicts to be entered on Count 4; Lillian Simpson was convicted on Count 5.

There was no application to stay the proceedings against the Appellant on the grounds that the proceedings at Croydon Crown Court constituted an abuse of process. Mr Tomassi, who represented the Appellant before us, told the court that he and his immediate predecessors were not aware of the ex parte application or the reasons for it notwithstanding that they had been set out in the application for the Voluntary Bill. Mr Bayliss pointed out that in the course of the proceedings the Appellant has been represented by six different Counsel and the same number of Solicitors. Before this court, Mr Tomassi advanced two arguments:

(1) That the proceedings at Croydon constituted an abuse of process and that on the authority of MAHDI [unreported] 15.3.93, 92/6463/Z5 and BLOOMFIELD [1997] 1 Cr App R 135, we should quash the conviction.

(2) That as a result of Count 1 being tried first, “his defence was wholly compromised by the severe practical difficulties of calling his witnesses ..... a Jury may well have believed them or at the very least have had a reasonable doubt about the case for the Crown”. (We quote from the appellant’s skeleton argument).

ABUSE OF PROCESS

Mr Tomassi did not rely on any assertion of bad faith or deliberate manipulation of judicial process in order to obtain evidence for the prosecution of the conspirators or otherwise deprive the Appellant of a protection provided by the law, but submitted that it was unprecedented to embark on a trial with no intention, or at the least, little likelihood, of reaching a verdict. The Crown, he submitted, should not be seen to start a trial to improve an already adequate case: once the trial process had begun, the Police cannot be seen to intervene, they should have arrested the defendant and conspirators immediately before the trial began when there was already sufficient evidence for them to do so. He further submitted that there was such a fundamental irregularity, an abrogation of due process of trial, as to make the subsequent Snaresbrook trial unsafe. He relied on REG. v. HORSEFERRY ROAD MAGISTRATES COURT ex parte BENNETT [1994] 1 AC p.42 where there had been an abuse of executive power in bringing the applicant back to the United Kingdom. There had been no trial; there was an application to stay the committal proceedings. Reference was made to the speech of Lord Griffiths at page 61 where he said:

“Your Lordships are now invited to extend the concept of abuse of process a stage further. In the present case there is no suggestion that the Appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law”.

At page 76, Lord Griffiths continued:

“The principle involved goes beyond the scope of such a pragmatic observation and even beyond the rights of those victims who are or may be innocent. It affects the proper administration of justice according to the rule of law and with respect to international law. For a comparison of public and private interests in the criminal arena I refer to an observation of Lord Reading, Chief Justice in a different context in REX v LEE KUN [1916] 1 KB 337 @ p.341:

‘The trial of a person for a criminal offence is not a contest of private interests in which the rights of parties can be waived at pleasure. The prosecution of criminals and the administration of the criminal law are matters which concern the state.’

If proceedings are stayed when wrongful conduct is proved, the result will not only be a sign of judicial disapproval but will discourage similar conduct in future and thus will tend to maintain the purity of the stream of justice. No “floodgates” argument applies because the executive can stop the flood at source by refraining from impropriety”.

We do not consider that this authority greatly assists us in the present case. However, Mr Tomassi submitted that the cases of MAHDI and BLOOMFIELD were authority for the proposition that there is an identifiable although exceptional area where the court will intervene even though the circumstances do not fall within the accepted categories of abuse of process or result in an unsafe verdict. Both were “legitimate expectation” cases where the underlying ratio was that it was unfair to make the Appellant stand trial. In both cases there had been an application to stay which was refused. In MAHDI there had been a number of directions hearings at which the Crown had failed to make proper disclosure of relevant documents. The Judge made an order that there should be proper disclosure within 14 days, adding:

“If the Crown are not in a position to proceed with the case by that date, then whoever had the matter before him for hearing should dispose of it rather peremptorily and promptly...... it is to be recorded that this is the last time that there will be an adjournment for the benefit of the prosecution”.

He marked the papers, “I indicated to the parties that no further adjournment would be granted to the prosecution and that the case must be ready at the resumed hearing or else!” There was a further directions hearing which was adjourned and the matter came back with different prosecuting counsel before an Assistant Recorder who was not given an accurate account of what had gone before. The trial took place and the Appellant was convicted. Lord Taylor, C.J., giving the judgment of the court, said:

“We are not ....... seeking to establish any precedent, nor do we seek to bring this particular case within any general principle in regard to abuse of process. We simply find that in the exceptional circumstances of this case an injustice was inadvertently done to this Appellant by reason of the lack of accurate information placed before the Assistant Recorder. We make no criticism of him since he was unaware, as we have said, of the remarks which had been made by the other two Judges.

In the result we consider that the proper course for us to take in this case is to quash this conviction on the grounds that this prosecution should have been stayed and should not have proceeded after the two previous hearings.”

That case was, of course, decided before S.2(1) of the Criminal Appeal Act 1968 was amended by the Criminal Appeal Act 1995. The case of BLOOMFIELD was decided after that amendment. At a Plea and Directions hearing at the Crown Court, Prosecuting Counsel indicated to Defence Counsel that the Crown wished to offer no evidence against the Appellant because it was accepted that he had been the victim of a set-up. It would have been embarrassing for the Crown to offer no evidence on that day due to the presence in court of certain people, so Counsel spoke to the trial judge in his room. An order was made in open court to adjourn the case and to relist it “for mention”. The Crown Prosecution Service subsequently instructed new Prosecuting Counsel and informed the Defence Solicitors that the Crown intended to continue the prosecution. There was an application to stay the proceedings as an abuse of process. This was rejected; the Appellant pleaded guilty and was sentenced. He appealed on the ground that it was an abuse of process for the Crown to revoke a previous decision communicated to the defendant and to the court. The appeal was allowed and the conviction quashed. Staughton, L.J., giving the judgement of the court, said at p. 143:

“Looking at the case in the round, it seems to us that this is an unusual and special situation. The decision to defer the trial on December 20th was taken for the benefit of the Prosecution in order that they would not be embarrassed when it was said in court that no evidence was being offered. The statement of the Prosecution that they would offer no evidence at the next hearing was not merely a statement made to the defendant or to his legal representatives. It was made coram judice, in the presence of the judge. 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.

Of course, the circumstances of each case have to be looked at carefully and many other factors considered. As the court said in the MAHDI decision, we are not seeking to establish any precedent or any general principle in regard to abuse of process. We simply find that in the exceptional circumstances of this case an injustice was done to this Appellant. In those circumstances the appropriate course is to allow the appeal and quash this conviction.”

No reference is made in the course of the judgement to the amendment of the Criminal Appeal Act. That Act, as amended in 1977, provided by Section 2(1):

“Except as provided by this Act, the Court of Appeal shall allow an appeal against conviction if they think --

(a) that the conviction should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or

(b) that the judgement of the court of trial should be set aside on the ground of a wrong decision of any question of law; or

(c) that there was a material irregularity in the course of the trial,

and in any other case shall dismiss the appeal”.

There then follows the proviso. The amended sub-section 2(1) is:

“Subject to the provisions of this Act the Court of Appeal --

(a) shall allow an appeal against conviction if they think that the conviction is unsafe; and

(b) shall dismiss such an appeal in any other case”.

We have referred to the amendment because before it came into force the Court of Appeal could confidently regard the circumstances of MAHDI or BLOOMFIELD as leading to an unsatisfactory verdict even if they were not a material irregularity in the course of the trial because they occurred before the trial started. The change in Section 2 was considered by this court in the case of JEFFRIES and CHALKLEY decided on 18th December 1997 (94/981/Y3) which has been made available to the court and counsel as an unrevised judgement. A Regional Crime Squad considered that the appellants were about to commit armed robberies. Chalkley and his partner had some time previously been suspected of misusing a Barclaycard but enquiries into the matter had not been pursued with any vigour. They were, however, arrested on suspicion of credit card fraud in order to enable other officers to install covert recording apparatus in their bungalow and the keys were copied to enable access to be gained for the purpose of changing the batteries from time to time. Recordings were obtained of telephone conversations between Chalkley and Jeffries which provided unchallengeable evidence of conspiracy to rob. The trial judge ruled this evidence admissible whereupon the appellants pleaded guilty. The appeal raised a number of issues including:

(a) Could the appellants, having pleaded guilty, appeal on the ground that the Judge had rejected an application to exclude evidence which rendered their defences hopeless?

(b) Whether the Court of Appeal can quash a conviction it considers to be safe but which it regards as in some other respect as “unsatisfactory”.

On issue (a), one of the arguments advanced was to the effect that the pleas were induced by oppression, the oppression being the obtaining of and reliance on the covert recordings; and that, together with the circumstances of the ruling and the appellant’s reactions to it, entitled the court to go behind their pleas. Lord Justice Auld, giving the judgement of the court, said:

“Such a suggestion necessitates a return to the removal of the word ‘unsatisfactory’ from Section 2(1) of the 1968 Act as a ground of appeal against conviction. The new provision, in confining the test to one of safety of the conviction, may be in this respect, narrower than before, depending on whether the word ‘unsatisfactory’ signified an additional and independent ground for quashing a conviction or merely another way of saying it is unsafe”.

He later continued:

“In our view, whatever may have been the use by the court of the former tests of ‘unsatisfactory’ and ‘material irregularity’, they are not available to it now save as thought processes leading to a decision as to the safety of a conviction. The court has no power under the substituted Section 2(1) to allow an appeal if it does not think the conviction unsafe but is dissatisfied in some way with what went on at the trial.”

He went on to consider BLOOMFIELD and MAHDI and continued:

“In our view whatever may have been the legal justification for such a flexible approach in MAHDI, when Section 2(1) included the possibly separate notion of an ‘unsatisfactory’ conviction, there is no room for it now when the single test is one of ‘unsafeness’ of the conviction. We respectfully agree with the following reasoning and criticism of the decision by the editors of the 3rd Supplement to the current edition of Archbold at paragraph 7-45”.

Part of this section is recited in the judgement and Auld, L.J. concludes:

“Accordingly we are of the view that there is no statutory scope now for the court to consider, on appeal against conviction on a plea of guilty, circumstances of the ORDTEC [2] or even the MAHDI or BLOOMFIELD nature where they do not go to the safety of the conviction. Even if there were, the circumstances of this case would not qualify for such unusual treatment”.

Mr Bayliss adopted this reasoning and submitted that the only question for the court was whether the verdict was unsafe. He submitted that abuse of process should have been raised before HHJ Radford: if it had, he submitted that the Judge would have carried out the sort of balancing exercise approved in R. v. LATIF [1996] 2 Cr App R 92 , where a fair trial is possible although it may not be fair to make the defendant stand trial. The defendant had been persuaded to enter the United Kingdom by an informant for the United States Drugs Enforcement Agency in order to collect a consignment of heroin imported by an officer of that Agency. The Judge refused to stay the proceedings. This exercise of his discretion was upheld by the House of Lords.

Before leaving the law, reference should be made to ATTORNEY GENERAL’S REFERENCE NO 1 of 1990 [1992] 1 QB 630 which was concerned with delay as an abuse of process. At the very end of the judgement of the court, Lord Lane, C.J. dealt with the procedure to be followed when an application for a stay on the ground of abuse of process is refused. He said:

“This judgement will, we hope, result in a significant reduction in the number of applications to stay proceedings on the ground of delay. At the risk of repetition we emphasise the exceptional nature of the jurisdiction. In the event of an unsuccessful application to the crown court on such grounds, the appropriate procedure will be for the trial to proceed in accordance with the ruling of the trial judge and, if necessary, the point should be argued as part of any appeal to the Court of Appeal Criminal Division.”

The question arises whether this is still possible following the introduction by amendment of the new Section 2(1), particularly in circumstances, necessarily exceptional, where a defendant has been fairly tried although it may have been unfair to try him as in MAHDI and BLOOMFIELD.

A case in which there has been no application to stay must be even more exceptional. However, although it is not necessary for the purposes of our judgement in this case to decide the point, we would wish to leave open for argument the proposition that in a case where a fair trial was possible but it was, nevertheless, unfair that the Defendant should have been tried, a verdict of “guilty” could properly be regarded as unsafe.

DID THE PROCEEDINGS AT CROYDON AMOUNT TO AN ABUSE OF PROCESS?

Mr Bayliss submitted that the Crown, the Police and the Judge were placed in a very difficult situation but nothing unlawful occurred, there was no manipulation of the due process of the court to deprive the Appellant of a right, and the trial at Croydon was regular and proper until the Jury were discharged. The Judge had no power to tell the Police when to make an arrest and it was his decision to continue with the trial rather than adjourn it, which might have been pointless, after being fully informed of the situation which had arisen and making the orders dealing with disclosure and Maria Hoadley’s status. Nothing that happened at Croydon resulted in any unfairness at Snaresbrook. Even if there had been an application for a stay on the ground that it was unfair to make the Appellant stand trial, a fair trial being possible, it was unreal to suggest that the Judge carrying out the LATIF balancing exercise would have granted a stay.

The circumstances which arose at Croydon were exceptional. It was almost certain that the trial would not proceed to a verdict: if the Police obtained the additional evidence they were hoping for, the arrests would take place. If the evidence was not forthcoming, Maria Hoadley could not sensibly be expected to give evidence and the view was taken that the other conspirators should not be allowed to commit perjury. Little would have been achieved by adjourning the trial. Had the Judge taken the view that he was being asked to try the case so that the trial process itself could be used for the gathering of evidence, he would, of course, have refused point blank to countenance doing so. In the circumstances, we take the view that he gave correct rulings and properly embarked on the trial even though there was a strong possibility that it would come to a premature end. We do not consider that there was any abuse of process or an affront to justice of the exceptional kind considered in MAHDI, BLOOMFIELD, and JEFFRIES & CHALKLEY . This ground of appeal accordingly fails.

It was the Appellant who applied for severance. Rather surprisingly, Mr Tomassi, at the conclusion of his argument submitted that there should have been no severance. We regard this submission as unsustainable. Had there been no severance, not only would the Appellant have had no control over the conspirators that he may have wished to call as witnesses, but his wife and natural father would have been joined in the same indictment charged with conspiring to give false evidence in his favour. There were two realistic possibilities, either that the Appellant should be tried first or that the conspirators should be tried first. This was a matter for the exercise of the Judge’s discretion. Mr Tomassi’s argument was that the Appellant was deprived of his witnesses. This is not so: they could have been called or brought to court on witness summonses. If they believed in the truth of what was contained in their witness statements they could have given evidence. If they did not wish to commit perjury they would not have assisted the Appellant.

We do not have before us the Judge’s Ruling of 2nd September but we have seen that of 21st October, to which reference has been made. It is not suggested that the Judge failed to consider anything which he ought to have considered or that he took into consideration something that he should not, or that his Ruling was irrational. He had to carry out a balancing exercise and to consider the possibility that the Appellant might be acquitted after relying on perjured evidence and his witnesses thereafter convicted of perjury. There are arguments both ways and we cannot fault his Ruling. Mr Bayliss pointed out that by 21st October 1996 there were only three witnesses who might realistically have given evidence. Mark Farmer and Mark Howell had not been asked to attend at Croydon and there had been no cross-examination putting the substance of their statements to the Appellant. In any event, their evidence was hearsay and inadmissible and could only have been used as cross-examination material. Maria Hoadley and William Waite had dropped out of contention on 21st June 1995, leaving only Lesley Webb, Danny Stevens and Janet Baker, all of whom asserted that they were in “The Black Boy” when they were not. Lesley Webb had admitted in interview that she was not in “The Black Boy” and agreed that she had made a false statement to Lillian Simpson. Danny Stevens did not give evidence at his trial. The case put on his behalf was that he was not present at “The Black Boy” at the relevant time. Janet Baker did not give evidence at her trial although her case was that she had been in “The Black Boy”. However, she had told the Police in interview that she was with Lesley Webb, Maria Hoadley and William Waite. She admitted to Maria Hoadley that she was not present in “The Black Boy” and that she felt uncomfortable telling the solicitor that she had been there with Lesley Webb who she did not know. She would have preferred to say that she was with Maria Hoadley who she did know and who was her cousin. Maria Hoadley and William Waite had been present when Lillian Simpson was coaching her as to what to say to the solicitor. Mr Bayliss submitted that had she given evidence and had these matters been put in cross-examination, it was unlikely in the extreme that any weight would have been attached to her evidence. The substance of the appellant’s argument is that he was deprived of the opportunity of calling perjured evidence. There is no substance in this ground of appeal. Accordingly, the appeal is dismissed.

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