England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2

Monday 17th May 1999

B E F O R E :

LORD JUSTICE BUXTON

MR JUSTICE HIDDEN

and

THE RECORDER OF BRISTOL

HIS HONOUR JUDGE DYER

Sitting as a Judge in the Court of Appeal Criminal Division

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R E G I N A

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Christian James Henry HAYDEN

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HG

Tel No: 0171 421 4040 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR D LAMMING appeared on behalf of the Appellant

MR M CRIMP appeared on behalf of the Crown

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JUDGMENT

( As approved by the Court )

CROWN COPYRIGHT

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17th May 1999

LORD JUSTICE BUXTON: Mr Christian James Hayden appeals against a conviction for going equipped for burglary entered against him in the Crown Court at Cambridge before His Honour Judge Sheerin and a jury and in respect of which he was sentenced to 12 months' imprisonment.

Mr Hayden was the only man who appeared on the indictment but two other persons had previously been involved in the circumstances out of which this offence arose. The first was a man called Kevin Brown who had pleaded guilty before the magistrates and had been sentenced to three months for going equipped and certain periods for other offences with which we are not concerned. The other man was called Darren Brown. The pleadings had been discontinued against Mr Darren Brown in a circumstance to which we will have to return.

The case arose as follows. The police's attention was drawn to a vehicle parked in a road in Cambridge shortly after midnight. When they went to investigate this vehicle, which they thought was of a suspicious nature, the vehicle appeared to seek to evade them. It was stopped. Kevin Brown was in the driver's seat and the appellant, Mr Hayden, was in the back of the vehicle behind the driver. Later enquiries by the police indicated from CCTV footage that Darren Brown had been in the vehicle shortly before it was stopped. However by the time it was stopped he had left the vehicle.

The vehicle was searched and a police officer found a 30 cm long crowbar in the middle of the back passenger seat tucked into the back of the right hand side seat, part of it poking up so it was just visible. There was a pair of plastic gloves under the seat. Also the officers found a screwdriver and a Swiss army knife. Both accused were arrested for going equipped with items for the use in a theft. They made, at that stage, no reply.

Various accounts were given in sequential interviews by the appellant, in some of which he admitted that he had previously been lying. We need only refer, we think, to his third interview in which he said in effect that the crowbar belonged to Kevin Brown. He had understood from Kevin that he wanted to "look at", as he put it, a shed. The appellant wanted nothing to do with that and had met them back at the car when the other two persons had emerged from whatever errand it was they were on. The crowbar belonged to Kevin Brown. The appellant's case was throughout, or at least was at trial, that he had no intention to steal when he went out with the other two men and was not implicated with them at all in whatever enterprise it was they intended to carry out.

As we have said, Darren Brown was not in the event charged on this indictment and Kevin Brown pleaded guilty to it. A question therefore arose at Mr Hayden's trial as to whether the jury should be told and, if so, in what terms, of the conviction of Kevin Brown.

Mr Crimp, who did not appear at the trial but has appeared today on behalf of the prosecution, says that it was the prosecution's case that that conviction should be admitted into evidence as a matter that the jury could take into account and rely on when considering what the intention of Mr Hayden had been when he was present in the motor car, he being present in that car with a man who admitted that he had the items for use in theft or burglary.

We have seen how that argument develops but we think it is a difficult one to maintain. It was not suggested as part of the prosecution's case, though it might well be thought to have been implicit in it as a matter of common sense, that Mr Hayden and Mr Darren Brown were on a joint burgling enterprise or that they had agreed together to use the items for theft. But even if it was nonetheless open to the judge to admit this evidence, it was clearly a matter that called for an extremely careful direction to the jury, both in respect of what in fact the conviction of Mr Darren Brown proved or went to prove in the case of Mr Hayden. Secondly, and perhaps more importantly, to warn them that they should not directly infer from Kevin Brown's conviction anything about Darren Brown's guilt and should be particularly careful not to allow Kevin Brown's conviction to prejudice them against Mr Hayden.

We are unable to say that they received such a direction. When the judge came to direct them at page 5 of the summing up at line 3 he said in respect of proof of intention:

"You have to look at all the circumstances. You may be assisted by looking at what he did, or did not do, at the time that he was about with others, at least one of whom -- and you may think without doubt two of them -- Kevin for certain because you have heard of his conviction, he pleaded to this very same offence as he is entitled to in the magistrates court and was sentenced there, and you may think Darren too, but look to see what this defendant was doing and what he said or what he did not say after the event. Look at the actions that he took before he was arrested. Look at all those items and look at what he said afterwards, for all these matters may shed some light for you on his intention at the critical time.

Let me make it quite clear. If he knew they were -- these tools -- there in the car, but he had not the slightest intention of being involved in any shape or form giving any assistance in lookout, being a party to any form of burglary or theft, then of course he is not guilty of an offence. If it is that you say, 'We think that may be his position. He was effectively there innocently, without such an intention', you will record that by returning a verdict of not guilty, so you need to be satisfied did he have them with him and was it his intention that they would be used at some time. He playing some part in burglary or theft."

The latter part of that direction cannot be criticised. It is a perfectly correct direction in broad terms as to the elements of the offence and the way in which the prosecution needed to prove them.

It does not however, in our judgement, accurately or sufficiently assist the jury with regard to the status of the conviction of Darren Brown, not only in respect of Mr Hayden's intentions but also as to whether he had the particular goods with him simply because he was sitting in the motor car. It also, unfortunately, contains a mistake about the status of Darren Brown. Mr Lamming, who was at the trial, tells us today that the judge was in fact told before the case opened that it had been discontinued against Darren Brown. That fact, in effect, formed the basis of an application in respect of abuse of process in the case of Hayden himself. The judge regrettably created in the jury's mind the belief that Mr Hayden had been in the motor vehicle with not one but two men, both of whom were on a thieving expedition. That was an error which did not assist the jury.

Further, the passage that we have just read was preceded by a general passage about the position of one or more men in a motor car when there is a set of tools intended to be used for the purpose of burglary. The judge told the jury, no doubt properly, that it was possible for one set of tools to be there for use by any one or more of the persons in the course of the burglary or theft. In other words, that not everybody had to be holding the tools and not everybody, as he went on to say, had to play the same role in the projected burglary. So far so good.

There are however two difficulties about that part of summing up. First of all, in describing such a circumstance the learned judge used the word "villains" on five or six occasions in a short passage to describe the persons sitting in the motor car. That, of course, would be a permissible description of them had they been convicted, all of them, of the offence. As a precursor to a passage such as we have already referred to in the particular circumstances of this case, in our judgement, it further led the jury to infer, or laid open the danger that they would infer, that they should look at this simply as a joint enterprise in which, as they believed, two men convicted of going equipped were already involved. It was not, of course, put by the Crown on that basis. In our judgement that incorrect basis is one which the jury may have drawn from it to the unfair detriment of Mr Hayden.

The second complaint made of the summing up is this. The judge, having started to describe to the jury the elements of the offence, then read out to them the whole of section 25 of the Theft Act verbatim, followed by a certain amount of comment. We have to say, first, that we do not think it was a helpful step on the judge's part to read out the actual legislation. It is not likely to be understood in that form by the jury. The judge should seek to explain to the jury in language that they ought to understand the substance of the legislation relative to the particular case. We make the latter point because the judge, in the course of reading out the section, read out section 25(3) referring to articles made or adapted for use in committing a burglary, the possession of such articles being evidence that the person concerned had the item with him for such use. There had never been any suggestion in this case that any of the items, and more particularly the crowbar, were made or adapted for use in committing a burglary and the jury had not been addressed on that point because nobody though it to be an issue in the case.

The judge went on, having introduced that element, properly to tell the jury they must be satisfied that it had been proved that the articles were indeed articles to be used in a burglary and that the defendant, individually, had the articles for the purpose of using them in that connection. That direction taken on its own was of course perfectly correct, but it was very regrettable that it was preceded by a reference to articles made or adapted for use in committing a burglary and the evidential implications that such a finding can have when there had been no such finding, indeed no allegation, in the present case.

Here again we are not satisfied that there was not a danger that the jury were misled by that part of the summing up into thinking that the mere nature of the items had some evidential status over and above the inferences to be drawn from the surrounding circumstances.

These two matters taken together, in our judgement, make it impossible to say that this conviction was safe. We therefore quash it and allow the appeal to that extent. We do not think that this would be a suitable case for a retrial and therefore the court makes no order other than to allow the appeal to the extent of quashing the conviction.

MR LAMMING: My Lord, might I just correct two matters of fact that my Lord mentioned in the judgment? Firstly, at the outset my Lord made reference to the Browns being related, one being the brother of the other. They were not, in fact, related.

LORD JUSTICE BUXTON: That can be corrected. It makes no difference but it is right that it should be corrected.

MR LAMMING: My Lord, the second matter was the reference possibly to the vehicle having been under police surveillance.

LORD JUSTICE BUXTON: That is what you just told me.

MR LAMMING: My Lord, I think not. What happened was that after the event the police, in the light of what was said in interview, went back to the garage and got the CCTV camera.

LORD JUSTICE BUXTON: I see. In that case that is a mistake of a little more substance and I will correct that by saying that the vehicle was not under surveillance but CCTV cameras later on --

MR LAMMING: It was pure chance that the police happened to see --

LORD JUSTICE BUXTON: Yes, there has to be some explanation in the judgment of how Darren got into the event at all. I had assumed that it was surveillance but you tell me it was CCTV cameras so I will correct that. It makes no difference to the substance of the case but we must get that right. Thank you both very much.