England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		4th February 2000

4th February 2000

1. LORD JUSTICE MANCE: On 23rd September 1998 in the Crown Court at Southwark before His Honour Judge Watts the appellant was convicted by a majority of ten to two of robbery and was sentenced to eight years' imprisonment. He now appeals against conviction by leave of the single judge.
2. The outline facts are that on 15th May 1999 in Piccadilly a Mr McDonald and another employee of the Versace shop in Old Bond Street were on route to a bank to lodge £70,000 in takings when they were attacked by two men using what was presumed to be CS gas. The assailants made off with a large package containing £50,000 worth of notes.
3. Shortly thereafter at Green Park tube station the appellant was tackled by Mr McDonald, who was then assisted by a passer-by, a Mr Essienta. The issue at trial in short was whether the appellant was one of the robbers. The Crown's case rested strongly on Mr McDonald's evidence that he recognised the appellant as one of the robbers, but was also supported by important evidence from other witness observing Mr McDonald's struggle at Green Park tube station, including Mr Essienta who joined in, to the effect that a bundle of £50,000 emerged in one way or another from under the appellant's T-shirt at the time when he was apprehended, and also indicating that the appellant's clothing was similar to that of one of the two robbers when they were caught on a video running away from the scene of the robbery.
4. The appellant's case was that he had nothing to do with the robbery and had never been in possession of any cash. It was put to Mr McDonald and the other witnesses that they had made a mistake both as to identification and as to events which they had purported to describe.
5. The present appeal relates to a failure by the Crown, in circumstances which we will describe later in more detail, to disclose either before or during the trial the fact that three of the Crown's witnesses to events at Green Park tube station, including Mr Essienta, had in one form or another previous records.
6. In more detail the evidence of the Crown witnesses was as follows. Miss Jones, who was accompanying Mr McDonald, testified to being attacked, having herself swung around and then being sprayed with a substance of which she ingested a mouthful. The attacker pushed between her and Mr McDonald, pushed her away and she heard the carrier bag, which Mr McDonald had, tearing. Mr McDonald was then set upon by two men. At the end of the struggle the larger bundle comprising the £50,000 was missing. Two men ran off, a taller and a smaller, and were caught on video. Miss Jones said that she saw a flash of khaki trousers running past. The appellant, when apprehended at Green Park station, was wearing similar coloured trousers, the shorter man on the video likewise.
7. Mr McDonald gave evidence about the general description of the attackers as a shorter man who grabbed hold of Miss Jones and a taller man who sprayed something onto her from a gas canister, before both of them turned on him, ripped the bag from him and took the larger bundle when it spilt out. He said that the shorter man was Arabic looking and wearing what appeared to be cream trousers, a white T-shirt and a baseball cap; again, generally consistent with video footage and with this appellant's attire when he was apprehended at Green Park tube station.
8. Mr McDonald said that he pursued the attackers along Piccadilly, up Barclay Street and into Mayfair Place, keeping sight of them until they turned into Stratton Street where there is an entrance to Green Park underground. When he got to Stratton Street he saw Mr Lopez just outside the entrance. Mr Lopez had apparently been sitting in his car doing some paperwork when he had observed a man running down the stairs into Green Park underground station, as he later told the court. Mr McDonald, in the light of what Mr Lopez said to him, entered the tube station and as he was going down he saw someone, who he identified as the smaller man, trying to push past him up into the street. He also said that the smaller man was trying to conceal something which looked like a square brick, or like money in a big package under his T-shirt. He said that he recognised the smaller man straightaway, grabbed him and put him in a headlock. The smaller man said, "If I give you the money back let me go".
9. Mr McDonald called out for help and Mr Essienta came; together they retrained the smaller man. The money fell out from the smaller man's T-shirt onto the steps. Mr Essienta lifted it up and passed it to Mr McDonald, who recognised it as the bundle of £50,000. He passed it to another Versace employee, Mr Mannini, who had arrived by now on the scene.
10. Mr Essienta's evidence was that he was in the station at about 11.00 a.m. when he heard Mr McDonald say "Give it back" to a man in scruffy white tracksuit type clothes. He brought the appellant to the ground and brought the appellant's arm up behind him. While he was holding him on his stomach a cellophane packet fell from under the appellant's T-shirt which Mr Essienta said he lifted and handed to Mr McDonald.
11. Mr Lopez gave the evidence that we have indicated, and then said that he followed Mr McDonald down the stairs into the tube station where he saw Mr McDonald grab the appellant, who was wearing a short-sleeved T-shirt and sunglasses. Mr McDonald, he said, called for help. He saw another person, Mr Essienta, go to help and the three of them struggling. He saw that the appellant had something under his T-shirt, like a square block. He said that when he got close Mr McDonald pulled a block from underneath the appellant's shirt, and Mr Lopez saw that it was money. He said that Mr McDonald put the money into a bag which he then passed on to someone else who had arrived.
12. Mr Khan, who was an employee of Versace, was, after speaking to Miss Jones who had returned to the Versace shop, also present at the tube station where he went downstairs and saw Mr McDonald on top of the appellant. He saw that the appellant had a bundle. It looked as if it was in his hands. Mr Khan's recollection was that it was Mr Mannini who took the money out of the appellant's arms. Mr Mannini went to the tube station with Mr Khan and his recollection was that by the time he and Mr Khan had arrived at the tube station the money was no longer in the appellant's hands and that he was simply handed the money by Mr McDonald.
13. When interviewed the appellant made a no comment reply except to state:

"All I want to tell you, I was pushed on to the floor, there was a whole load of people there. I was being restrained aggressively. I had someone behind me, which I knew was mixed race. I saw Mr McDonald with some other people around him. He was holding something. He put it in a plastic bag. He did not search me, nothing fell off me. I had nothing on me. He then came over and cracked me in the face."

14. The appellant gave evidence and testified to similar effect, namely, that he had nothing to do with the robbery and never had any money belonging to Versace's. He had on that day travelled from his home in Edmonton to Green Park underground station where he had arranged to meet a friend, Mr Stavri, at 10.30 a.m. He had arrived early, so he strolled out up Dover Street where he had hoped to get a coffee at a friend's wine bar. That, however, was shut, so he visited a cafe in Piccadilly and took away a snack which he consumed sitting on a wall near the entrance to Green Park tube station. He took a call on his mobile phone from Mr Stavri who said he was going to be late. He waited a while and then rang Mr Stavri again who said that he would soon arrive.
15. The appellant then went into the tube station and it was while he was waiting there that Mr McDonald came down the stairs, looked round, saw him and shouted "Oy, it's you". He turned around. Mr McDonald was pointing at him. Mr McDonald walked over and grabbed him by the throat. There was a struggle. Mr McDonald shouted, "He's robbed me, he's robbed me". The appellant tried to get Mr McDonald off him, but Mr McDonald got him in a headlock. Mr McDonald never said anything about the appellant having money. Mr Essienta then came over, grabbed hold of the appellant, threw him to the ground and pulled his arm up behind him. Mr McDonald, Mr Essienta and Mr Lopez were all mistaken in saying that any money fell out from under his T-shirt. The only money he had on him was small change. He had seen Mr McDonald put something into a blue plastic bag and then hand it to someone else. He had been acting on his solicitor's advice in making no comment replies other than as we have already indicated.
16. Mr Stavri gave evidence and testified that he had arranged to meet the appellant at Green Park tube station that day. He thought the meeting time was 11.00 a.m. or 11.30 a.m.. He rang the appellant to say he would be late, but deliberately underestimated how late he would be. When he arrived at Green Park at 11.20 or 11.30 the appellant was not there.
17. A report was read from a forensic scientist who examined the appellant's clothing for traces of CS gas but found none. However, she also said that did not indicate that the appellant had not been involved either in discharging or being near discharge of a pellet of CS gas. Such a gas canister would have been, if he was an assailant, fired away from him, and, in any event, any traces would tend to dissipate.
18. It is evident from what we have said that the Crown case against this appellant was a strong one. However, it is also true that the jury only convicted by a majority of ten to two, and that there were certain inconsistencies, particularly relating to the retrieval of the cash, upon which the defence was able to rely.
19. The grounds of appeal arise out of a most unfortunate failure by the police. On 17th June 1998, about three months prior to the trial date, the officer in charge, DC Downton, confirmed to the defence by letter that there were no convictions recorded against any of the civilian prosecution witnesses. The trial was conducted all on sides in this belief. During the trial no challenge was made to the truthfulness of any of the Crown's witnesses. The defence case, as the judge pointed out more than once in his summing-up, was that they were "mistaken". The reason why no such challenge was made is clear. It would have exposed the appellant to cross-examination about his own character, which, as counsel for the appellant realistically accepts, the judge would in all probability have permitted. This would have been very damaging to the appellant's credibility. In 1986, when he was 19, the appellant had been sentenced inter alia to 240 hours' community service for taking a conveyance without authority. In 1988 he had been sentenced to six months' suspended sentences for theft and attempted theft, but, far more significantly, in 1990 he had been sentenced for four robberies and four offences of carrying an imitation firearm with intent to commit an indictable offence to six years' imprisonment concurrent for each robbery with three years concurrent therewith for each firearm offence.
20. At the conclusion of the trial the judge made commendation orders in respect of Mr McDonald and Mr Essienta. In the light of that DC Downton submitted a report recommending that each be considered for an award from the Captain Binney Memorial Fund. It is the practice in such circumstances for enquiries to be made by the police section P8 Deployment and Awards. When this was done it revealed that Mr Essienta himself had previous convictions, the last in 1984. These included in 1972 two offences of robbery for which he was sentenced to serve three years' imprisonment concurrent, in 1974 burglary and theft, with two offences taken into consideration, for which he was sentenced to 18 months' imprisonment, and in 1984 conspiracy to defraud for which he was sentenced to two years' imprisonment of which 15 months was suspended. Somewhat ironically it emerged that he was also, and had been since 1994, the subject of an unexecuted arrest warrant issued by the Southwark Crown Court in which the appellant was tried. This related to a charge of possession of class A drugs with intent to supply. After the existence of this warrant was rediscovered it was executed, and Mr Essienta appeared before Southwark Crown Court on 12th February 1999 and then, or thereafter, received the low sentence of two years' imprisonment, suspended for two years.
21. A check on other Crown witnesses also revealed that in 1991 Mr Khan had been fined £500 for criminal damage and in 1997 cautioned for obstructing powers of search for drugs, whilst Mr Lopez had convictions in 1982 for possessing an article with a blade for which he received a 12 month conditional discharge, and in 1994 for failing to surrender to bail for which he was fined £50.
22. We say at once that, although these should clearly have been disclosed prior to trial, Mr Khan's and Mr Lopez's records do not appear to lend any weight to the appellant's submission that his conviction was unsafe. That submission turns, as counsel effectively accepted, on the significance of the failure to disclose Mr Essienta's record.
23. As soon as these convictions had come to light DC Downton wrote a report to the CPS dated 10th February 1999, which led to the CPS on 15th February 1999 informing the defence of the position. The general explanation tendered for the inaccurate information in DC Downton's letter dated 17th June 1998 is that she believed that the Crown witnesses' records had been checked by use of the Police National Computer by the Criminal Justice Unit, whereas in fact they had not.
24. The very unsatisfactory nature of what occurred is acknowledged by the Crown. The Crown was clearly in breach of its duties of disclosure. The information about the Crown witnesses' convictions was information which the defence was entitled to know in order to take it into account when considering and deciding how to conduct the defence, in particular how to cross-examine Crown witnesses and whether to call the appellant.
25. We were referred by counsel to the case of R v Smith, 4th June 1998, BAILII: [1998] EWCA Crim 1767, a case concerning the importation of drugs where the appellant's case was that he was an innocent driver giving a lift to the man responsible for the importation, as well as to the latter's wife. The appellant was faced at trial with evidence called by the Crown from the wife, who appeared to be a respectable, middle aged woman of good character, giving evidence which was not motivated by self-interest and which, in some respects, implicated her own husband in the offence. Those representing the appellant cross-examined accordingly with circumspection.
26. After the trial it was disclosed that the wife had, under different names, been convicted of a number of serious offences: in 1967, when she was 21, robbery with violence for which she received a sentence of 18 Monday; in 1973 abstracting electricity for which she was fined and received a suspended sentence; in 1974 four offences of criminal deception on which she was conditionally discharged; and, most importantly in view of its dates, in 1981 eight offences of obtaining property by deception for which she received 15 months' imprisonment, suspended for two years.
27. After reviewing a number of authorities, the Court in Smith was prepared to assume that it was necessary, before interfering with the jury's verdict, to show something in the nature of an important conflict between the evidence of the witness, whose record had not been disclosed, and the appellant's case. That test was satisfied in Smith and, making the same assumption, we have no doubt that it is also satisfied in this case when comparing the evidence of the appellant and Mr Essienta. The Court in Smith went on:

"Had the defence been in possession of the information as to her convictions we have no doubt that they could have made substantial use of them.

In case it should not be clear we should mention that the appellant himself had some old convictions, the existence of which was, in circumstances which gave rise to the first ground of appeal about which we have not heard argument, disclosed to the jury so the defence would not have been affected by any inhibitions so far as putting the convictions of Mrs Bruce were concerned. Had they been in possession of those convictions, they would have been able to cross examine her in much more robust and effective way than in the event they were."

28. The present case is different in this respect from Smith on the facts. Here great care was, for obvious reasons, taken at trial to avoid putting the appellant's character in issue. Accordingly, there was no direct challenge to the truthfulness of any of the Crown's witnesses. The Crown's submission before us has, therefore, been that despite the irregularity which occurred the defence cannot have been prejudiced and the verdict is safe.
29. In considering whether the verdict is safe the question which we think arises is whether there is a realistic prospect that matters would have proceeded differently at trial had the convictions been known. In answering this question it is also to be borne in mind that it is the Crown's fault that it is not possible to know for certain how matters would have proceeded.
30. Mr Bogan, for the appellant, put the matter in a number of ways. First he submitted that the Crown might not have called Mr Essienta at all. That seems to us unrealistic, quite apart from the assurance by Mr Walmsley for the Crown that the Crown would still have done so. The Crown had indeed obtained an adjournment of the original trial date in August 1998 on the very ground that Mr Essienta was an important witness not available at that date.
31. Then Mr Bogan submitted that if he had been called Mr Essienta would probably have appeared either as a remand or a convicted prisoner. That too, for what it might have been worth, seems in any event unrealistic. He was, after execution of the warrant, bailed in respect of drugs charge and given a suspended sentence on it. There is no reason to think he would have received any other treatment had the warrant for his arrest been executed in June 1998 when the Crown should have detected that he was still awaiting trial on the drugs charge, or had that trial taken before the present trial.
32. Mr Bogan's next submissions focus on the defence reaction to the disclosure of Mr Essienta's convictions. Mr Bogan informed us that the appellant was, prior to his trial, very keen to challenge the veracity of the Crown's witnesses' accounts and was only persuaded by counsel's advice that this would let in his own record. Mr Bogan said that this whole area would have been considered on a quite different basis had the convictions been known. He would have been encouraged, without letting in the appellant's character, to try to probe the possibly that Mr Essienta had some greater involvement then he at first sight seemed to have as an apparent chance by-stander, or that Mr Essienta had some ulterior motive. In a press cutting of 5th October 1998 after the trial it could now been seen that Mr Essienta had complained that the police had not helped him as promised in relation to a licence to become a doorman. Further, there might be more than meets the eye in the police's failure to make due disclosure which had even now not been explained in detail. We say at once in relation to this very last point that the material before us does not contain any basis for regarding it as realistic. How the non-disclosure came to the light is explained and the officer in charge of this case made the appropriate report as soon as she became aware of it.
33. More fundamentally the appellant might have insisted, or counsel might even have advised the appellant, to challenge the Crown's witnesses' accounts head on. Had this been done the appellant's own record might still have been kept out by deciding not to call him to give evidence and by relying on the evidence of Mr Stavri alone. True this would have exposed the appellant to a direction by the judge to the jury that it was open to them to draw an adverse inference from the appellant's failure to give evidence, but defendants do still, from time to time, decide upon such a course with a successful outcome.
34. While we have very considerable doubt about whether knowledge of the relevant convictions would have made a difference to the conduct of the defence, or the way in which the trial proceeded, we have come ultimately to the conclusion that we cannot exclude this as a realistic possibility. The fact is that the appellant and his trial advisers were deprived of information which any legal adviser would wish to know, and were entitled to know. Discussions with the appellant would clearly have taken a different course. The strategy adopted at trial could have differed. Unlikely though it may seem that many of the courses suggested would have been adopted, the Court cannot put itself in the shoes of the appellant and his advisers, and we think that there is a just sufficiently real prospect that matters would have proceeded differently in one respect or another to make this conviction unsafe. This appeal will be allowed accordingly. It is accepted on both sides that there should in these circumstances be an order for a retrial.
35. We therefore allow the appeal, quash the conviction, direct that a fresh indictment be preferred, and direct that the appellant be rearraigned on the fresh indictment within two months. We will hear any further points which counsel wish to raise.
36. MR BOGAN: My Lord, may I apply on Mr Vasiliou's behalf for bail pending his retrial.
37. LORD JUSTICE MANCE: Was he on bail before the previous trial?
38. MR BOGAN: He was not. He was remanded in custody from the date of his arrest until trial and thereafter obviously.
39. I put it on this basis. In effect the Court has indicated that what has taken place was a mistrial. Had he been waiting for a trial of this length of time there must be little doubt the court, bearing in mind the custody time limits, would have been obliged to grant him bail. It is often argued on the basis of whether or not the Crown have acted with all due diligence, clearly in the circumstances of this case it cannot be said that they have. Therefore, in my respectful submission, although the custody time limit does not apply in the strict sense, it does apply in the spirit of those provisions and he ought to be given bail now.
40. In making that application I can suggest that conditions should be attached that he surrender his passport, that he reside with his sister at 19, Third Avenue, Bushell Park, Enfield, that he report to Enfield Police Station and there is a surety available today -- two sureties -- one in the sum of £4,000 and another one, with a little hesitation, because he was a witness at the trial but that should not necessarily preclude him being a surety, of Mr Stavri in the sum of £10,000.
41. LORD JUSTICE MANCE: Mr Walmsley, do you want to say anything on that?
42. MR WALMSLEY: Simply that the Crown do oppose bail for the obvious reasons. One is the serious nature of the allegation and also Mr Vasiliou's previous convictions. There is a real likelihood the Crown would say that despite any bail conditions that might attach there is a real fear of him failing to surrender to the court, and also of a real likelihood, bearing in mind his previous convictions, of committing further offences.
43. MR BOGAN: My Lord, he has previous convictions, but he has never failed to appear in the past. But I cannot say whether he was in custody for the 1990 offences.
44. MR WALMSLEY: Can I respond, my Lords? As far as the previous convictions are concerned, on 23rd January 1986 at Tottenham Magistrates' Court there were two matters of non-reporting.
45. MR BOGAN: Those, I understand it, related to non-reportable offences which are usually minor road traffic offences.
46. LORD JUSTICE MANCE: I see, not failing to turn up.
47. MR BOGAN: My Lord, no.
48. LORD JUSTICE MANCE: Right.
49. (Pause) Mr Walmsley, using, as I was, the standard aide memoire, I note that I said a fresh indictment be preferred within two months, that is perhaps introducing a too casual note into the matter. Is there any reason why you should not do it within a much shorter period, 14 days for example?
50. MR WALMSLEY: No.
51. LORD JUSTICE MANCE: I think that might inject a note of greater urgency into the matter, so I will vary that to 14 days. Clearly it is undesirable that there should be further delay. If there is any further delay then no doubt it will be open to the defendant to make further applications, but for the present we refuse the application for bail. We are quite satisfied in view of the nature and seriousness of the offence charged, the defendant's character and antecedents, as revealed by his record, and the strength of the case that they are very relevant factors and there would, as counsel for the Crown submitted, be a real risk of absconding, of non-appearance, if bail were granted. We refuse bail. We think there would be some risk of further offending, but that is an unnecessary additional factor.
52. MR WALMSLEY: My Lord, I apologise, can I just clarify the situation? A fresh indictment to be preferred. Did my Lord say as far as rearraignment within 14 days?
53. LORD JUSTICE MANCE: Can I have the form? Yes, I direct that a fresh indictment be preferred -- you are quite right, I am confusing the two things -- and that that should be done within 14 days. As regards rearraignment that is a different matter, and that we simply -- we cannot put a time limit on that, but that should take place as a matter of urgent application to the Southwark Court. Thank you for that correction. We should direct that rearraignment take place within two months. That is not to say that you should take the full two months.
54. Are you applying for legal aid for the retrial?
55. MR BOGAN: My Lord, yes.
56. LORD JUSTICE MANCE: Clearly you are entitled to it.