COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MANCHESTER CROWN COURT
HIS HONOUR JUDGE OPENSHAW QC
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE WAKERLEY
and
SIR EDWIN JOWITT
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REGINA |
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STEPHEN BRIAN LYDIATE |
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Mr P Wright QC (instructed by CPS) for the Crown
Hearing dates: 28th January 2004
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Crown Copyright ©
Facts.
Conviction grounds.
"...the trial Judge should in the course of summing up to the jury (a) explain that there has been a breach of the Code and how it has arisen, and (b) invite the jury to consider the possible effect of that breach."
A few lines later he said:
"But if the breach is a failure to hold an identification parade when required by D2.3, the jury should ordinarily be told that an identification parade enables a suspect to put the reliability of an eye - witness's identification to the test, that the suspect has lost the benefit of that safeguard and that the jury should take account of that fact in its assessment of the whole case, giving it such weight as it thinks fair."
"I make the point members of the jury that no identification parade was arranged so Lydiate is now disadvantaged by having been deprived of the opportunity of putting to the test Foster's assertion that he knew and could recognise Lydiate."
"I must warn you of the special need for caution before convicting any defendant upon evidence of identification. That is because it is possible for an honest witnesses to make a mistaken identification. There have been wrongful convictions in the past as a result of such mistakes. An apparently convincing witness can be mistaken. So indeed can a number of apparently convincing witnesses. You should therefore carefully examine the circumstances in which the identification by each witness was made, you will need to examine for how long the witness had the person he says was the defendant under observation, at what distance, and in what light and in what conditions and circumstances, did anything interfere with the observation.Here each of the identifying witnesses claims to know the person he identified. So you need to ask did he really know him and if so how well did he know him, how often and how recently had he seen him?"
"In the circumstances existing at the time, was that something which he could reasonably have been expected to mention. If it was, as I've told you, you may draw such inferences as appear proper from his failure to do so. When being asked about the shooting (of him), do you think he could sensibly have omitted the fact that he had been told that he had been shot by Shawcross?"
"Since the object of section 34 had been to bring the law into line with common sense, 'fact' should be given a broad and not a narrow or pedantic meaning. It covered any alleged fact that was in issue and was put forward as part of the defence case. If the defendant advanced at trial any pure fact or exculpatory explanation or account that, if it were true, he could reasonably have been expected to advance earlier, section 34 was potentially applicable."
"I'm asking (you) to tell me what it is that (you've) been told, we're not speculating about anything."
To that, Lydiate gave a long reply in which no mention was made of the information given by Robinson.
"You must therefore entirely disregard what one defendant said about another when you consider the case against the other defendant."
"I am entirely unpersuaded by the suggestion made by Mr Bate that this evidence had a great impact on the jury. I have no reason at all to think that they will not loyally and dutifully follow the direction that I shall give in clear terms that they must ignore these matters."
Sentence Application
"...it is necessary for the indictment to be kept as brief as possible and as uncomplicated as possible. Unless there is a very good reason for including in an indictment two counts, then one should suffice. But we think that there are often good reasons for adding a count under the Firearms Act. First of all it is arguable, and indeed it is often argued, that a defendant ought not to be sentenced in respect of an offence with which he has not been charged or convicted. Secondly, the fact that an offence has not been charged might in some circumstances be taken as a concession by the prosecution that the offence was not committed. Thirdly, there may be occasions where the possession of the offending weapon is disputed, or may be disputed, by the accused, and the sentencing judge would, if there were no firearm count in the indictment, be deprived of the jury's view on the matter.Quite apart from the fact that we are bound by Faulkner, we think, with respect, that it was correctly decided and should in future be followed. The prosecution are entitled to use their discretion as to whether to include a count under the Firearms Act, and we do not regard it in general as bad practice to do so."
"If the Crown are going to invite the judge to come to the conclusion that the offence was committed with a firearm, then the appropriate course is to include a count on the indictment to make the position clear. The crown may decide in a particular case that in all the circumstances it is not in the public interest to proceed to trial on a particular count which is disputed by defendant. So be it; but at least the defendant's position should be protected by a count in the indictment."
And then this:
"We would refer to the previous decision of the court in French, which accurately sets out its position in the head note, reflecting the judgment of the then Lord Chief Justice."
"The prosecution were entitled to use their discretion whether to include a count under the Firearms Act, and it was not in general bad practice to do so. It was accordingly correct in principle to include two counts in the indictment, and correct in principle for the judge, if he thought it a proper course, to make the sentence for the firearms offence consecutive to the sentence for the robbery."
"All that was said and only said in the context of the situation where there was an issue as to whether the appellant had a firearm with him. Here there was no such issue. The defence acknowledged the appellant's involvement in robbery in which a gun was to his knowledge being carried and likely to be used. That is quite a different matter."
The court therefore concluded that the appellant was guilty of the qualifying offence required by section 2(5)(h).
"In my judgment, it is a cardinal principle of sentencing that the court should take into account when considering the gravity of the offence and the appropriate sentence, the consequences to the victim. This is because one of the purposes of the criminal law is to assuage the feelings of the victims and their friends and relations. The law must redress their grievance by inflicting an appropriate punishment and then there is no excuse for the victim or his friends to exact their own retribution.Moreover, it is not necessary in all cases to add a count to the indictment to reflect such conduct provided that the court's sentencing powers are adequate to reflect the actual gravity of the offending. Thus in Roberts and Roberts (1982) 4 CAR (S) 18 , which was a rape case, it was said that aggravating features which justify a longer sentence are: use of a weapon to threaten or injure the victim; if serious injury is sustained by the victim; violence used over and above that which is necessary to commit the offence; intrusion into the victim's home or deprivation of liberty for a period of time."