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Cite as: [2000] EWCA Crim 6

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ADAMS and WILLIAM HENRY HARDING, R v. [2000] EWCA Crim 6 (28th January, 2000)

Case No:9807720W2 & 9808025W2

IN THE COURT OF APPEAL
(CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday, 28 January 2000

B e f o r e :
LORD JUSTICE MANTELL
MR JUSTICE KLEVAN
and
HIS HONOUR JUDGE MARTIN STEPHENS QC
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	REGINA
	- V -
	DAVID ANTHONY ADAMS & WILLIAM HENRY HARDING

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Mr S. Smith (instructed by Galbraith & Branley for the appellant Adams)
Mr R. Price (instructed by Powell & Spencer for the appellant Harding)
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Judgment
As Approved by the Court
Crown Copyright ©

Friday, 28 January 2000
JUDGMENT

LORD JUSTICE MANTELL:
On 21st November 1997 a robbery took place in Shenley Road Boreham Wood. A Securicor guard was delivering £25.000 to Lloyds Bank. He was approached by a man holding a hand gun. He was relieved of the box containing the money. All this was witnessed by police officers who immediately intervened. The robber attempted to run away. At one point he turned and pointed the revolver at one of the pursuing officers. Other police officers blocked his path. He was arrested. So was another man who had been standing close by. In that man's pocket was an electrical stun gun. The hand gun carried by the first man was a Webley revolver adapted to fire shot gun cartridges. The first man, the one with the Webley, was William Harding. The second man, the one with the stun gun, was David Anthony Adams. Both men were arrested and charged with robbery and firearms offences.
It happens that on the 15th August 1997 another robbery had taken place in Shenley Road. This time it was at the premises of the Halifax Building Society. Once again a guard employed by Securicor was delivering a box containing a large amount of cash. His name was Edwin Gower. As he was being admitted to the building society he found himself confronted by a man holding a hand gun and wearing an industrial mask and hat. With considerable presence of mind Mr Gower kicked the door closed grabbing the would be robber's hand at the same time. As he did so he was shot in the lower leg and foot. The robber made off with the money in the box, some £20.000. A number of people witnessed the robbery. Among them was a Miss Shani Bede, a cashier, a Mr Garry Keen, a window cleaner who saw something of what happened from a nearby opticians and Michael Peter Kerr who has a greengrocers business in Shenley Road. Both Mr Keen and Mr Kerr saw Harding being arrested on 21st November. They each told the police that they thought that Harding was the man involved in the earlier robbery. Again, as it happens, the gun which was used to shoot Mr Gower had been adapted to fire shot gun cartridges.
In between those two robberies a third occurred on 1st October 1997 at the Midland Bank in Eastcote. Once again the victim was a Securicor guard. He was faced by a man carrying a hand gun and forced to hand over a cash bag. The bag was empty. The robber threw it away and fled. The robbery was caught on camera. It was apparent from the photographs that the robber was wearing two tone gloves, beige and brown. The gun he was holding was a revolver the barrel of which had been cut down. At the time of his arrest Harding had been wearing similar gloves and was carrying a similar revolver. The quality of the photographs was not such as to enable a positive identification of the robber but his appearance was not dissimilar to that of Harding.
In due course Harding and Adams stood their trial on robbery and firearms charges at Harrow Crown Court. On 27th November 1998 they were convicted as follows:
Harding
Count 5: robbery.
Count 6: having a firearm with intent to commit robbery.
Count 7: causing grievous bodily harm with intent.
These were in relation to the incident on 15th August.
Count 9: attempted robbery.
Count 10: having a firearm with intent to commit robbery.
These related to the incident on 1st October.
Count 11: robbery.
Count 12: having a firearm (.45 revolver) with intent to commit robbery.
Count 13: having a firearm (a stun gun) with intent to commit robbery.
Count 14: making use of a firearm (.45 revolver) with intent to avoid arrest.
These arose out of the incident on 21 November as did the following.
Adams.
Count 11: robbery.
Count 12: having a firearm (.45 revolver) with intent to commit robbery.
Count 13: having a firearm (a stun gun) with intent to commit robbery. It will be apparent from the numbering there were other counts on which there were not guilty verdicts or which were not proceeded with: they do not concern us.
Both Harding and Adams had previous convictions including a conviction for armed robbery in which both had been involved. Harding had been sentenced on that occasion to twelve years imprisonment and Adams to eight. On counts 5, 6 and 7 Harding was sentenced to discretionary life imprisonment. By virtue of section 2 (1) of the Crime (Sentences) Act 1997, which came into force on 1st October 1997 he was sentenced to mandatory life imprisonment on all other counts. Adams was sentenced to mandatory life imprisonment on each of the three counts affecting him.
Harding has renewed his application for leave to appeal against conviction and both Harding and Adams appeal against their sentences with leave of the single judge.
We have already refused Harding's renewed application but now proceed to give our reasons.
Not necessarily in the order in which they were presented the proposed grounds were:
1. That the alleged 15th August and 1st October offences (counts 5 to 7 and counts 9 and 10) should have been tried separately from counts 11 to 14 and the Judge was in error in refusing an application for severance;
2. That the street identifications by Keen and Kerr should have been excluded;
3. That in any event the identification evidence in respect of counts 5 to 7 and counts 9 and 10 was unsatisfactory and the judge should not have found a case to answer; alternatively the convictions were unsafe by reason of the unsatisfactory nature of the identification evidence;
4. That there is fresh evidence to show that a Cost Co. card bearing the applicant's photograph had been seized from the applicant's home raising the possibility that it might have been shown to potential witnesses. The fact also provided a reason for the applicants refusal to stand on identification parades.
We take them in turn.
1. At trial the applicant defended the charges on the two earlier incidents by saying that he was not the robber and the identifying witnesses were mistaken. His defence to the 21st November charges could hardly have been that, but, instead, was one of duress. He proposed saying and did say that he was put up to the robbery under threat of death by drugs dealers who were owed money by a friend of the applicant on whose behalf the applicant had been selling cannabis. It was said in support of the application that by having to admit participation in the 21st November offences the applicant was prejudiced in his denial of participation in the earlier offences. Moreover such evidence as was available in relation to the earlier offences undermined his credibility on the question of duress.
There is no doubt that all the counts were properly joined in the same indictment and the only question is whether they should have been severed on application made under section 5 (3) of the Indictment Act 1915. That sub-section provides:
"Where before trial or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of such indictment."
The judge rejected the application stating that any prejudice could be cured by a proper direction. The Single Judge opined that the rejection of the application was inevitable because of the essential links between the various sets of offences.
In our view both the trial judge and the single judge were correct. Severance will rarely if ever be ordered where cogent evidence is relevant to both sets of offences. If the evidence of Keen and Kerr was to be admitted in relation to the 15th August offences it could only on the basis of street identifications on the 21st November which necessarily involved reference to the offences which had taken place on that date. Similarly, the fact that on 21st November the applicant was in possession of a revolver the barrel of which had been shortened and which had been adapted to fire shotgun cartridges was powerful evidence in support of the identifications on the earlier charges. Accordingly we consider that proposed ground of appeal to be without substance.
2. The effect of R -v- Popat (1998) 2 CAR 208 is as stated in counsel's very helpful Advice. Code D:2.3 of the Code of Practice under the Police and Criminal Evidence Act 1984 does not require the holding of an identification parade simply because the suspect continues to dispute the identification if previously there has been a proper and adequate identification by the proposed witness, as for example when a witness to crime observes the perpetrator being arrested shortly thereafter. However, each case depends upon its own facts and an identification parade might be useful even in such a case if the circumstances in which the identification was made were for some reason unreliable or doubtful. Here the judge held that the identifications by Keen and Kerr fell into the latter category. That was because they each had a restricted opportunity for seeing and identifying the witness since he was on the ground at the time and in course of being arrested. Consequently the judge held that there had been a technical breach of code D:2.3 and the matter became one of discretion. The judge said:
"I have made the point time and time again that it seems to me that an identification, made at the time of arrest of Mr Harding on 21st November, and then an identification parade to be held, would be highly criticised because, of course, the identification parade, if positive, if a positive identification took place as a result of it, it may be said that he was only identifying the person he saw arrested on 21st November, not necessarily the person he saw at the Halifax Building Society."
And later,
"I come to the conclusion, having heard the arguments, that I see no inherent unfairness, so long as very clear and concise directions are given to the jury about it, and those directions, of course, will be formulated as a result of the evidence they actually give on the day, and how they respond to testing, and we shall have to wait and see."
To our way of thinking that was a perfectly proper way for the judge to approach the exercise of his discretion. He was right, of course, in saying that the main point of having an identification parade in the circumstances would be to see whether the witnesses could identify the man they saw being arrested. That in itself would tell the jury very little. It does not dispose of the possibility that one or both witnesses might fail to identify the applicant as the person involved in the robbery on 15th August. So it cannot be said that the holding of an identification parade or parades would be utterly pointless. Even so, we agree with the Single Judge that the admission or exclusion of the evidence was a matter within the discretion of the judge at trial and we decline to say that he was wrong to allow the evidence before the jury. Certainly the inclusion of the evidence cannot be said to render the convictions unsafe given that, as promised, the judge did give a full and proper direction to the jury. It is not necessary to set out the direction given at this stage as it has not been the subject of complaint. Accordingly we find that there is no substance in the proposed second ground of appeal.
3. As we have mentioned, the judge gave the jury a full and proper direction with regard to the identification evidence of Keen and Kerr. In so doing the judge pointed out the weaknesses in the evidence of both and in particular reminded the jury that Mr Kerr had not been positive in the identification which he had made. He also referred to the deficiencies in the evidence of Miss Bede, notably that she had told a police officer that she would not be able to recognise anyone, the fact that the robber was wearing a mask which partially covered his face and that in any event, and naturally enough, she was more concerned for her own safety than making an attempt to remember the robber's appearance. Although we derive that material from the summing up it clearly represents the state of the evidence at the close of the prosecution case. In those circumstances counsel would have wished to argue that the evidence was too weak to support the Crown's case with regard to the 15th August incident. He would also have wished to argue that the evidence in relation to the 1st August offence was insufficient to support the charges.
It is not altogether clear to us that there ever was a submission of "no case". We do not appear to have any transcript of the ruling and we can find no reference to such an application elsewhere in the papers. It may be that we have misunderstood the nature of counsel's submission. It matters not because Mr Price for the applicant would have been entitled to argue that with or without a submission of "no case" the judge was under a duty to intervene if the evidence was insufficient to support a prima facie case and in any event what this court has to look to is the safety of the convictions.
It seems that the prosecution expressly disclaimed any reliance on "similar fact" evidence. Indeed at p.18 of the transcript of the summing up the judge directed the jury as follows:
"Generally, there might be a temptation for you to say that, if Mr Harding is guilty of one of the robberies, and because they were all carried out in a similar way, then he must be guilty of all the ones he is charged with.... You must strongly resist that temptation and must approach each count separately. Go through the indictment count by count and consider the evidence that was called in relation to that count."
We respectfully wonder whether the prosecution was right to make the concession it did. Here were three attacks on Securicor guards occurring within the space of a few months in the same part of London when the Securicor guards were in course of delivering large sums of money to banks. In each case the method of carrying out the robbery was pretty well identical. It may be that the concession was generous. Be that as it may the concession was made and the jury were directed accordingly. What they were left with so far as the 15th August offences were concerned was evidence from three eye witnesses, none of it strong but never the less mutually supportive, plus the evidence that on 21st November the applicant had a gun which had been similarly adapted to the one which had been used to shoot Mr Gower. So far as the 1st October is concerned, the jury had the evidence of the gloves and the gun. There was clearly evidence fit for the jury's consideration so far as 21st November was concerned when the applicant was caught red-handed. In our view there is nothing about the quality of the evidence presented by the Crown which should lead this court to consider any one of the convictions to be unsafe. Accordingly we have held that proposed ground to be without merit also.
Although it was doubted at trial it seems that police officers had recovered a Cost Co. card from the applicant's address. It was amongst the property returned to him afterwards. The card carried his photograph. It had always been the applicant's belief that the card had been taken. Therefore, it was always open to the applicant to ask the identifying witnesses whether or not they had been shown such a photograph and we are told the question was put to at least one of the witnesses. We find it difficult to see how the so called `fresh evidence' could have affected any answer which might have been given. In any event the police were bound to be in possession of photographs of the applicant as a result of his previous convictions. For the same reason and because the applicant believed that the Cost Co. card had been taken it is difficult to see how the confirmation of the fact has any bearing upon his reason for refusing to stand on an identification parade. In point of fact it was not the reason put forward at trial. Although it is regrettable that it was not discovered sooner that the Cost Co. card had been taken it is not something which could possibly lead to the conclusion that any one of these convictions was unsafe.
Those, briefly, are the reasons for refusing the renewed application for leave to appeal against conviction. We turn to the appeals against sentence.
Neither appellant challenges the imposition of life sentences. Both accept that such sentences were inevitable at least in relation to the offences committed on or after 1st October 1997. What is challenged by each of them is the specified period which in the case of Harding was one of fifteen years based upon notional determinate sentences of twenty five years and in the case of Adams one of nine years based upon notional determinate sentences of sixteen years.
We begin with some general observations. It seems that the judge may not have had his attention drawn to the decision of this court in Marklew & Lambert (1999) 1 CAR (S) 6 in which judgment had been handed down on 6th April 1998 or a decision of the Divisional Court in R -v- Secretary of State ex parte Furber (1998) 1 CAR (S) 208. Both those decision have since been considered by this court, differently constituted, in A.B.E. 2000 1 CAR (S) 78 and R -v- Darke (2000) 1 CAR (S) 123.
From those authorities we derive the following propositions:-
1. In arriving at the specified period it is necessary first to decide what the proper determinate sentence would have been had it not been necessary to impose a life sentence.
2. The approach to that question is the same whether the life sentence imposed is discretionary or mandatory under section 2 of the Crime (Sentences) Act 1997.
3. The determinate part of the sentence is that which is necessary to reflect punishment, retribution and the need for deterrence.
4. The determinate part of the sentence should not be enlarged with a view to protecting the public: that is achieved by the imposition of the life sentence.
5. In arriving at the determinate part of the sentence it is relevant to have regard to the feelings of uncertainty and hopelessness experienced by a prisoner who has been made the subject of a life sentence.
6. The specified period should normally be half of the determinate period less the whole of any time spent on remand.
We apply those principles to the instant cases.
We start with the appeal of Harding and ask ourselves whether twenty five years was appropriate as the notional determinate period. We have regard to the fact that Harding was convicted of three quite separate armed robberies. In one case a firearm was used to inflict grievous bodily harm, as the jury found, intentionally. He had a previous conviction for armed robbery which merited a sentence of twelve years. Against that background we ask ourselves what a proper determinate period would be after making allowance for the fact that a life sentence has been imposed. The starting point must be the guideline case of R -v- Turner (1975) 61 CAR 1967 which suggests that the maximum sentence for armed robbery where more than one offence has been committed should be eighteen years. It has to be remembered, however, that Turner was decided at a time when the sentencing climate was very different from today. For one thing remission for good behaviour was one third of the sentence. For a more recent example of sentencing levels in this kind of case we turn to R -v- Schultz & Others (1996) 1 CAR (S) 451 in which sentences of twenty five years were upheld in the case of an armed robber found to be guilty of more than one offence. But for the fact that life sentences have been imposed we would consider that twenty five years as a determinate sentence could not be considered to be manifestly excessive. However, making appropriate discounts for those matters already mentioned, namely the need to strip out such part of the sentence designed to protect the public and the additional burden placed upon the appellant as a result of having been sentenced to a life term we consider that the appropriate determinate period should be one of twenty two years. It follows from that holding that the specified period should be one of eleven years less the period spent on remand, namely one year and six days. Consequently in the appellant Harding's case the specified will be nine years three hundred and fifty nine days.
The judge fixed the determinate period in the case of Adams at sixteen years. In his case, too, reliance is placed upon the case of Turner which, it is said, suggests a maximum of fifteen years where a defendant has been involved in a single robbery. Although in that case the court said that the existence or lack of a criminal record was not a particularly important factor we consider that the previous conviction for armed robbery cannot be ignored. Consequently we find nothing amiss with decision of the sentencing judge to fix the determinate period at sixteen years. But it follows that in his case, also, that the specified period should be one half of the notional determinate period less any time spent on remand. Like Harding, Adams spent one year and six days on remand. Consequently in his case the specified period will be of six years three hundred and fifty nine days.
To that extent the appeals of both Harding and Adams will be allowed.