England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		Thursday 3rd August 2000

Thursday 3rd August 2000

1. LORD JUSTICE JUDGE: On 17th January 1997 this appellant was convicted of two offences of committing arson recklessly in endangering life in the Crown Court at Southampton before His Honour Judge McLean and a jury. On 4th April he was sentenced to 7 years' imprisonment concurrent on each count.
2. On 2nd December his renewed applications for leave to appeal against conviction and sentence were refused by the Full Court. He now appeals against conviction only following a reference by the Criminal Cases Review Commission under section 9(1) of the Criminal Appeal Act 1995.
3. The main basis of the reference is the nondisclosure of contemporaneously available evidence, that is, available at the time of trial and sought then, which would have assisted the defence case. There is a second limb of the reference; it is suggested that the Court should consider whether the judge misdirected the jury on the issue of identification.
4. The Crown has carefully considered the reference from the Commission and the material which is now available and has concluded that it should not seek to uphold the conviction. Whether the conviction should be quashed or not is always a matter for this Court, for the simple but important reason that constitutionally a conviction returned by a jury may not be quashed other than by the decision of this Court.
5. We shall give our decision about the two matters argued before us at the outset. We have concluded, and indicated in the course of argument that the convictions should be quashed, but we shall further make an order for a new trial.
6. That being so, I shall not set out all the factual elements in the case nor refer to every point taken in the reference. Nevertheless, to understand the reason for our conclusion, a certain degree of detail is required.
7. No 83 Mansell Road, East in Shirley Southampton is a property divided into two maisonettes. A man called Gregson occupied the ground floor flat, the appellant the first floor flat. Gregson had lived there from about 1985, the appellant from about March 1995.
8. The prosecution's case was that on two separate nights during the same week in August 1996, the appellant started fires against the doors of the ground floor maisonette while Gregson was asleep inside. His method was the same on each occasion, namely he set fire to a carpet underlay placed, in the case of the first fire, on the night of 2nd and 3rd August, in front of Gregson's back door, and so far as the second was concerned, on the night of 7th and 8th August, against his front door. There was no doubt that fires were set at Gregson's back and front door; the issue at trial was whether it was proved that the appellant was the individual responsible.
9. The essential evidence relied on by the Crown was video footage from a surveillance camera, installed by the police outside the property, after the first fire.
10. The appellant throughout denied responsibility for either fire. He maintained that he was in bed during the night when the first fire occurred. So far as the second fire was concerned, he said that he had arrived home having been out drinking, very drunk and that he had seen no signs of a fire or the fire brigade.
11. The facts relating to the first fire now need a little amplification. Gregson said that he went to sleep in the late evening 10.30 or so on the night of 2nd August and that he was woken in the early hours of the morning when he found his flat full of smoke. He went into the kitchen, the back door was alight, smoke and flames were coming through it and the outside of the door was stacked with some carpet underlay.
12. A passing motorist saw the fire and immediately telephoned the fire brigade. He returned to No 83 and helped get Gregson out of his premises. He also tried to rouse anyone who might be in the flat upstairs; that is the appellant's flat. According to him, he received no answer to it.
13. That evidence was consistent with the evidence of a fire officer whose evidence was read. He said that the fire brigade was called out at 2.50. They could get no reply from the first floor flat, indeed ladders were raised to the upstairs window at the first floor flat and the fire officers satisfied themselves that the premises were vacant. That obviously is important evidence; the appellant's case, it will be remembered, was that he was at home, asleep, at the material time.
14. A taxi-driver picked the appellant up from a club on the night of the 3rd August between about 2 o'clock and 2.25 that morning. That again is a significant time. He described the appellant as his normal jovial self, not really under the influence of alcohol at all.
15. The police entertained considerable suspicions about the responsibility of the appellant for this fire. Plainly this is not a matter that can be reported in view of the fact that there is to be a new trial. But they knew that the appellant had a fairly recent previous conviction for arson, indeed that he had been convicted in effect of setting ten different fires. They decided that a 24 hour surveillance camera should be installed at the premises. It was the material from this camera which was to provide the most important evidence against the appellant at his subsequent trial.
16. Nothing significant occurred over the three or four days but on the night of 7th August, Mr Gregson went to bed, this time shortly before midnight. He had had a few drinks. He said that when he went to bed there was nothing outside his door. Again, he was awoken by smoke. It was about 2.30 in the morning on 8th August. He went to the front door. He there saw a hole in the door with smoke coming through it and a burning piece of carpet underlay next to the door.
17. As that very brief narrative shows there was a distinct similarity between the two offences. The same premises were attacked within a week, in the same way, arson, using the same sort of carpet underlay, which undoubtedly did belong to the appellant, placed against the doors, front and back of the same unfortunate victim's premises. The Crown's case, not surprisingly, was that the individual who started the second fire, must also have been responsible for the first.
18. A video from the surveillance camera showed a figure said, at trial, not to be dissimilar in appearance to the appellant, letting himself into the appellant's first floor flat with a key at about 2.06 in the morning. That person came out of the flat, turned as if to go in the direction of the garden shed, and returned with something which was said to look very much like carpet underlay. The video showed the figure pass the door and then move into the direction of Gregson's door, returning empty-handed before going back into the premises.
19. We have seen the video. Counsel on both sides were present while we did so. We shall make no comment about the extent to which the figure was similar in appearance to the appellant, nor whether it was sufficient to form the basis for a certain identification of the appellant. That video will form part of the evidence to be used at a retrial, and others will have to evaluate it in the light of any appropriate directions of law.
20. We merely observe that the appearance of this individual on the video is not the single point of significance. It may be important to note that at 2.06 am, the figure let itself into the appellant's home using a key that fitted, and that it appears to be the same person who came out again, and that this movement was repeated more than once by someone who may be thought by the jury to have been not unfamiliar with the location.
21. The appellant was seen very soon afterwards by the police. He said that at the time of the fire the previous night he was alone in his flat. He had returned there at about 1.00 ish.
22. Police found a large number of match boxes, and lighters in various rooms and on window ledges in the flat, and in the shed, and on the appellant. When he was asked what there was in his shed, he explained that he had laid new carpet in his flat a few weeks before, and had stored the cutoffs and a few roles of unused carpet underlay in the shed.
23. At trial the defendant gave evidence. Again we shall take this relatively briefly. When asked about his movements on the night of 7th and 8th August he said that he had gone to the Grosvenor Square Casino at about 10.00 pm. So he had. The manager of that club had handed over the club's cassette tape of those coming and going into and out of reception. The tape was recorded on the court papers as Exhibit 1. We now know that it shows the appellant, and more importantly in context, it shows the colour of the shirt he was wearing.
24. The appellant's case was that during that evening he had been wearing a black shirt with white swiggles on it together with black trousers and that he was not and had not been wearing a white shirt, similar in colour to that worn by the man shown on the surveillance film. Potentially it was an important difference.
25. Returning to his account of his movement that night, he said after leaving the Casino, he went on to the Magnum Club. There he drank a great deal, leaving it very drunk at about at 1.45. He said at trial that he could not recall how or when he had returned home. He also said that, as far as he knew, no one else had a key to his flat, although a key had been lost. He agreed that he had lied to the police about the time of his return home on 8th August. He explained that lie as deriving not from a guilty conscience, but from a sense of acute embarrassment because he did not want to disclose to the police what he said to the jury; that after leaving the club he had gone to the common and there had a sexual encounter with a man. He said he did not have any money to take a taxi home from the common so he had walked back. He had not returned home until it was getting light. He had seen no signs of fire, nor of the fire brigade. He adamantly denied that the person to be seen on the video was himself.
26. So far as the earlier fire on 2nd and 3rd August, he maintained that he was at the home all the time. That evening he had left the Magnum Club at about 12.30 am, returning home by taxi at about 12.45, drunk. He said that when the fire happened at 2.45, he was asleep in bed. He told the jury that he was woken at about 5.45 by two police officers and a council employee. They had broken into his flat following a complaint about a possible water leak. The time was 5.45. The appellant said that he was fast asleep until those individuals or at least one of them had forced his way into the property.
27. 5.45 is of course much later than the 2.50 or thereabouts spoken of at the time when the fire was going. He added that he had no grudge against Mr Gregson. The worse that could be said about it was that occasionally he found, what it was described as, Gregson's chatter and nosiness to be irritating.
28. There was one further and important piece of evidence. During his cross-examination, a police officer, Police Constable Howe, was asked directly about the video tape of the reception at the casino on the 7th and 8th August which, as will be remembered, was handed over to the police by the casino manager. This evidence was given following a conversation which took place with the express agreement of counsel for the Crown between counsel then acting for the appellant and the officer. The officer said that when he made enquiries with the management the video was not available. It had either been taped over or, for whatever reason, it was not apparently playing. He said that he had been to the club within a week of the fire. Apart from finding out that tape had been wiped clean or was not available, he had not discovered any information as to what the appellant had been wearing that night.
29. It has now emerged that this evidence was plainly wrong. The video-tape showing the appellant's arrival at the casino that evening and leaving it was available. It still is available. The appellant is seen in that video wearing a black shirt with white swiggles on the front. Plainly as Police Constable Howe's evidence was certainly wrong, the court, both the judge and the jury, was misled. Lest it be thought that the omission was quite immaterial, because the fire at Mr Gregson's flat was started some hours after the appellant left the casino, so he would have had ample time to change his shirt and clothing generally, it should be remembered that if he had gone back to his own home at any relevant time to change before the fire was started, that moment might have been expected to show up on the video.
30. The Crown's case here and at trial will be that he must have done so. That is a contention which will require some thought because, if the appellant was the person shown in the video at 21.56, leaving his home before going out to the casino, certainly it looks as though that man is wearing not a black, but a white shirt so there may be some closer investigation to be made of the appellant's clothing that night.
31. Whatever that may reveal, the nondisclosure of this video-tape when it did exist, when the manager had handed it over to the police, means that the trial was materially flawed. The jury was misled. We are obviously extremely concerned about those events in themselves. For present purposes it is enough to express our conclusion that given the importance which the defence attached to the existence of this video, to the fact that it showed material which was consistent with the appellant's case about the clothes he was wearing that evening, and given the importance of clothes to the correct decision to be made about the identity of the man shown on the surveillance video, the safety of this conviction is undermined. Given also that the identification of the appellant as the criminal responsibility for the second fire led to his conviction of the first, it means that the conviction on first count is similarly undermined.
32. There is a separate and additional feature of this case which has caused us concern. We have seen a clear entry in a police report which appears to confirm and could undoubtedly be produced in inadmissible form to confirm that an entry was forced by the police into the appellant's flat on 3rd August, at the behest of the council, to deal with a water leak, and that when that entry was forced the appellant was found lying asleep in his bed. This does not itself prove that he was fast asleep when the fire was raging. But there can be no doubt of the potential value of this evidence as providing some support for the case advanced by the appellant in his defence at trial.
33. The material was not before the court. The Crown points out that its existence was disclosed and that apparently the defence advocate decided that it should not be used. The existence of this material is there to be seen on the papers. We simply do not understand why nothing was done to bring this material to the attention of the jury. If an agreement could not have been reached and we see no reason why agreement could not have been reached then, if necessary, the officer responsible for the forced entry or a council employee could have been called.
34. On one view, of course, this material is not fresh evidence. What we have done is to consider whether in the interests of justice it would be right now to exclude it from our consideration of the safety of the conviction. Put that way, there can only be one answer. This is material which we must take into account. We have done so.
35. There is one other point. This arises from the judge's direction or, perhaps more accurately put, the absence of any relevant direction, which it is said would have been appropriate in an identification case. The Crown before us, through Mr Dunne, for whose submissions we are very grateful, is content to make a concession about this point. We simply say that we decline to give any ruling. We do not need to do so. We are by no means clear that taken on its own, the way the judge dealt with the issue on the evidence actually available to the jury would, or could, have undermined the safety of the conviction. We do not believe that his remarks went beyond the proper boundaries or could or might have caused the jury not to exercise its independent judgment.
36. As to non-directions, in view of our decision that there should be a new trial, it would be unwise for us to say anything beyond that the trial judge will no doubt consider such submissions as counsel see fit to make to him about an appropriate direction in a case like this, when he has heard all the evidence.
37. We have carefully considered the facts of this case. We agree, as we have already indicated, with the concession made by the Crown. The convictions will therefore be quashed.
38. We have then considered Mr Owen's submission that the case should not be retried. Section 7(1) of the Criminal Appeal Act 1968, reads simply:

"Where the Court of Appeal allow an appeal against conviction and it appears to the Court that the interests of justice so require they may order the appellant to be retried."

39. Presiding over this Court, Lord Bingham CJ summarised the relevant issues arising from the legislation in the decision in R v Graham & Ors [1997] 1 Cr App R 302. The decision in that case is accurately summarised in the current edition of Archbold at paragraph 7-102.

"The decision whether to order a retrial requires an exercise of judgment involving consideration of the public interest and the legitimate interests of the defendant. The former was generally served by the prosecution of those reasonably suspected on available evidence of serious crime, if such prosecution could be conducted without unfairness to or oppression of the defendant. The legitimate interests of the defendant would call for consideration of the time which had passed since the alleged offence, and any penalty already paid."

40. The main point of Mr Owen's submission that a retrial should not be ordered was that his client had effectively served his sentence. He had not of course served 7 years but effectively had come to an end of his period in custody or, at any rate, his release now would be imminent if it had not already happened. Accordingly, relying on the decision of this Court in Shaiks & Morrison, an unreported decision dated 20th April 1999, he submitted that the inevitable decision to which the Court would be forced to come would be not to order a retrial. He referred, in particular, to the Vice-President's words:

"In our judgment, although the matter is by no means free from difficulty the period which these appellants have served in custody is such as to tip the balance against a retrial. Each of the appellants have the prospect, had matters not taken the course which they have culminating in the quashing of their convictions today, of being released on parole in the first half of this year when they would have completed 4 years of their sentence.

Having regard to that as a single determinative factor, we think it would be oppressive to order a retrial in this case."

41. In that case therefore the fact that the sentence was completed or nearly completed was regarded as determinative. We do not read the judgment as suggesting that it was conclusive, or that it should always be so regarded and, if we may say so, with respect, if the Vice-President had said or implied anything to that effect, he would have been fettering the statutory obligation on the Court to make a judgment in the interests of justice in the particular case. It is perhaps worth bearing in mind that one of the additional features of Shaiks and Morrison was that the Court was extremely concerned about corruption of the Crown's witnesses and that the case for prosecution was, on the face of it, at any rate, severely tainted with impropriety. That fact would inevitably have had its effect if there had been an order for a retrial.
42. Where we do agree with Mr Owen is that without question it is a significant factor in the decision- making process that the original sentence has been served, or effectively served, and that if there is a retrial, and the appellant were then to be convicted, he could not be resentenced to any longer term than was imposed at the first trial.
43. We also recognise that the passage of time and the strain of a further trial will create its own pressure tension and stress. We add, although this is certainly not conclusive in this case, a feature to which the Vice-President did not refer, that the release of this appellant, if he were convicted, would not be uncontrolled. He would be released into the community, as a convicted prisoner, with some public safeguards, not a wholly immaterial consideration in the case of a defendant with previous convictions for arson.
44. There were in this case two major cases of arson of a home, at night, with a householder asleep in his bed. The appellant has existing convictions for arson. If he is proved guilty of these two offences, he is a dangerous man. That is a significant factor. If he is guilty of them, as it seems to us, given the existence of evidence which has not in any way been afflicted by the past only of time, namely the contemporaneous video film which we have seen this morning, actually showing the man responsible for the fire, there is considerable material which ought to be examined by a jury.
45. We should add that, in our judgment, the new material which has led to us quashing the conviction will not, or may not be decisive and that the case against the appellant remains a significant one. Whether, in the end, that is the view formed by the jury and whether they are satisfied to the high standard that is required, is precisely why we will have a jury to resolve the issues.
46. In our judgment, the interests of justice in this particular case require a retrial. I should give the appropriate directions in a moment. Perhaps this judgment should end by pointing out that we have not agreed with every argument advanced in the statement of reasons by the Commission. That does not imply any criticism. We should like to record our appreciation of the objective terms in which those reasons were put together, and the assistance and benefit that we have received from it and, no doubt, Mr Owen and his client would echo those sentiments.
47. We shall allow the appeal and quash the conviction. We shall direct a fresh indictment be preferred and the appellant be arraigned at the moment we are inclined to think within 1 month of today's date, Mr Owen. Is there anything on that?
48. MR OWEN: There is nothing on that.
49. LORD JUSTICE JUDGE: Thank you very much.
50. Your client has been released on bail pending this appeal, is there any objection to bail?
51. MR DONNE: My learned friend asked earlier, we think it quite wrong to oppose any application for bail.
52. LORD JUSTICE JUDGE: Where is your client going to live?
53. MR OWEN: He resides as where directed by the project manager of the Worcester Local Authority, a hostel type accommodation. He has lived there since 3rd April without difficulty. He can remain living there as long as necessary.
54. LORD JUSTICE JUDGE: They are content to provide him with a home?
55. MR OWEN: They are.
56. LORD JUSTICE JUDGE: We extend your client's bail on that condition. He must answer to the Crown Court when he is summoned.
57. What about the venue for this? How is your client going to get from Worcester to and from the Western Circuit?
58. MR OWEN: He will clearly have to make the appropriate arrangement in coming to see me in conference and to the Court, I do not think that is going to present great difficulties. He will have some notification in advance, he will clearly have to make other arrangements when the trial itself takes place.
59. LORD JUSTICE JUDGE: Somebody can spend two or three minutes examining whether the case would be more conveniently run at Southampton, or say, Winchester, or possibly Bristol on your circuit, Mr Donne.
60. MR DONNE: Winchester would be the accessible venue.
61. LORD JUSTICE JUDGE: I think the appellant can get from Worcester to Bristol more easily.
62. LORD JUSTICE JUDGE: We will retire for a couple minutes so that the most convenient venue for everybody, if possibly can be agreed. If we deal with that now so much the better.
63. (Short adjournment)
64. MR OWEN: We think Bristol would be an appropriate venue.
65. LORD JUSTICE JUDGE: Very well, the case will be heard at Bristol Crown Court. I am just going to say, as to conditions as before, Mr Owen. I better formally say in your client's presence and hearing that he must reside where directed by the project manager of the Worcester City Project. He must comply with the rules of the Worcester City Project and with the directions of the project manager and her staff, and he must not consume alcohol.
66. MR OWEN: Those are the original conditions.
67. LORD JUSTICE JUDGE: The case will be heard at Bristol Crown Court. Your client will be, as indicated, on bail and we will order legal aid for the pre-trial. Mr Owen, in the view of the way things went wrong in this case, in the first trial, with some hesitation because public funds are involved, we have reached the conclusion, subject to any submission you may make, that there should be an order for one counsel, that counsel should be leading counsel. All right, very well, legal aid, leading counsel only and by that I mean QC.
68. MR OWEN: I understand. My Lord, while we are finally on the subject of legal aid, could I raise one matter. An application has been made as a result of the Criminal Cases Review Commission references in a number of other cases in relation to my instructing solicitor for work done before the date of the reference to the Court of Appeal, it is only at that stage that the legal aid order bites. I ask that there be a defendants's cost order in favour of the solicitor, under section 16 of the 1985 Act. My Lord it is in Archbold paragraph 6-65, page 746.
69. LORD JUSTICE JUDGE: Thank you.
70. MR OWEN: In subsection (4) "where the Court of Appeal allows an appeal under Part 1 of the 1968 Act against conviction", if we go to the end of the subsection, "the court may make a defendant's cost order in favour of the accused". It is the only way in which pre reference costs can be renewed and I am aware more recently the case of Rowe and Davies, that was the matter dealt with and I ask it be made to be taxed.
71. LORD JUSTICE JUDGE: We make that order. We omitted mentioning your instructing solicitor from our expression of gratitude for the help we have received.
72. MR OWEN: We echo your submissions about the Criminal Cases Review Commission's work.
73. LORD JUSTICE JUDGE: For the avoidance of doubt, legal aid, leading counsel, one only, and solicitors.

Note from John Wagstaff, CCRC Legal Adviser, 3 December 2001

After the conviction was quashed, the Crown carried out further work on the video. Before the retrial at Bristol Crown Court, the Crown served additional expert evidence on the defence relating to identification. The defence sought their own expert evidence, but this only confirmed the opinion of the Crown expert. On 5 March 2001, Mr Quiddington entered a Guilty Plea. He was sentenced to five years' imprisonment, which happened to result in his not having to return to prison. See CPS letter of 28.11.01 #359580.