England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		2 February 2006

MR JUSTICE NELSON :

1. On 16 December 2004 in the Crown Court at Newcastle-upon-Tyne, the Appellant was convicted of conspiracy to pervert the course of the public justice. On 10 February 2005 he was sentenced to 10 years imprisonment for that offence and ordered to pay £23,433 towards the costs of the Prosecution.
2. The Appellant was originally jointly charged with John Reginald Atkinson but Atkinson changed his plea to guilty to the offence of conspiracy to pervert the course of public justice before the jury was sworn. Both the Appellant and Atkinson had been represented by different solicitors from the same firm. After the plea Mr Brown, the Appellant's solicitor withdrew from the case due to professional embarrassment. As a consequence the Appellant applied for an adjournment to instruct fresh solicitors. This was granted, but a longer adjournment was then requested when the Appellant raised matters upon which his new solicitor said he needed many hours to investigate. This application was refused by the Judge and the new solicitor, Mr Forrester, then withdrew and the case continued with the same counsel, Mr Knox, and a second junior, Miss Henley, in respect of whom the Court ordered a representation order. At the sentencing hearing on 10 February 2005 Atkinson was sentenced to 4 years imprisonment.
3. The Appellant renews his application for leave to appeal against conviction after refusal by the single judge, and appeals against his sentence with the leave of the single judge.

The Background.

4. The prosecution of the Appellant and Atkinson for conspiracy to pervert the course of justice arose out of a murder case involving the Appellant's son, Lee Harrison. It was alleged that the Appellant and Atkinson conspired to influence witnesses or potential witnesses in Lee Harrison's trial by encouraging them to change their account of relevant events.
5. The case against Lee Harrison was that in the early hours of 5 August 2001 he and George Coleman who had dropped off Roweena Frost, George Coleman's girlfriend at her home, went to Grangetown, Middlesborough. They there met Jonathan Crossling and Thomas Petch. They were looking for a drug dealer named Dalzeil, whom they wished to attack because he had been "taxing" other drug dealers in the area. At 6.45 a.m. they went to 45 Errol Street, the house of Michael Moody, who allowed prostitutes to use rooms there. A man called Kalwant Singh was there with a prostitute, Claire Burgess. Irritated at being unable to find Dalzeil, Jonathan Crossling and Petch beat up Singh and threw him out of the bedroom window causing injuries from which he died. Downstairs they beat up Moody and threw him into a fish tank causing him serious facial fractures. It was alleged that Jonathan Crossling's brother, Jason Crossling was also involved but he was subsequently acquitted at trial. When carrying out the investigation into the murder of Kalwant Singh and the attack on Moody the police took statements from several witnesses, including Claire Burgess, Michael Moody, Cheryl Barker, Yvonne Stewart (Moody's daughter) and Roweena Frost. Roweena Frost, a prostitute, described in her statement how, at 3.30 a.m. on 5 August 2001 she was sitting in her boyfriend, George Coleman's car, when Claire Burgess entered the car, bought some cocaine and left with Kalwant Singh. Shortly afterwards Lee Harrison left a nearby take-away, got into Coleman's car which was driven off. Coleman and Lee Harrison left Roweena Frost at her home and drove off together towards Grangetown. Her evidence therefore linked Lee Harrison to George Coleman at that time of the morning and their joint departure to Grangetown in the car.
6. Michael Moody gave a statement indicating that Lee Harrison was one of the men present at the time of the violence. When he gave evidence at the subsequent trial of Thomas Petch, George Coleman and Jason Crossling he said that he could not remember what had happened and was treated as a hostile witness. Yvonne Stewart, another prostitute, and Moody's daughter, made a statement about finding her father injured at the house. Cheryl Barker, also a prostitute, gave a statement naming Lee Harrison as being present in another house at the time of the later, connected violence. The witnesses, the Crown said, came from the world of drugs and prostitution and were therefore vulnerable.
7. Lee Harrison and Jonathan Crossling fled abroad. As a consequence Coleman, Petch and Jason Crossling were tried separately. Coleman and Petch were convicted of murder and section 18 offences and sentenced to life imprisonment. Jason Crossling was acquitted on the basis that he had not been there and was misidentified. Jonathan Crossling was extradited from Spain and in 2003 his plea of guilty to manslaughter was accepted and he was sentenced to 18 years imprisonment. In late 2003 Lee Harrison was arrested in Jamaica, and after resisting extradition for some time he allowed the proceedings to go unchallenged and was brought back to the UK in April 2004. In November 2004 he pleaded guilty to manslaughter and was sentenced to 9 years imprisonment.

The conspiracy to pervert the course of public justice.

8. The case against the Appellant was that at his instigation, Atkinson approached Roweena Frost in May 2004 on some three occasions. She said that Atkinson said to her things such as "You'd better get down and drop the charges or you will have trouble with Tommy", "Tommy's going to get some lads from Leeds to sort you out", "You've got a week to get down to the police station to get the charges dropped against Lee. You can tell Yvonne Stewart and Cheryl Barker to go down to the police station and drop the charges as well".
9. On 11 May 2004 she saw the Appellant in Middlesborough Police Station through the window and went in to speak to him. When she said to him "What's this about you going to do me in", he said "I don't know what you're on about". When she told him that Buster Atkinson had been threatening her to drop charges he said "That's Buster playing gangster". She said the Appellant gave her £10 to get to the bus and told her to tell the police that Lee Harrison never went to Grangetown in the car. She made no mention of any cross or necklace which the CCT, R. v of them standing talking in the police station showed she had given to him. Both in this account and elsewhere in her evidence Miss Frost sought to exculpate Mr Harrison. Thus she said that although Buster Atkinson had approached her and threatened her with Tommy Harrison, she was not 100% certain that it was anything to do with Tommy as it might have been just Buster using his name.
10. The Defendant chose to put another incident to her in cross-examination which she had reported to the police on about 7 July 2004, but which the police had not apparently accepted as accurate. This incident had not been opened or adduced in evidence by the Crown. She stood by her account of that incident in evidence, stating that two men had assaulted her and her boyfriend and had thrown a pot through the window at her flat and that this was to do with the murder trial. One of the police officers who had investigated her complaint, Mr Swash, said in evidence that her account was not supported by what he was able to see or by what he learned of her boyfriend who said that he had been working in Manchester on the day in question.
11. Roweena Frost also added in evidence that in a police van, in which she was travelling with the Appellant when she had been kept in custody before giving evidence, the Appellant had said to her that she should "Tell them a pack of lies and I will walk and so will Buster".
12. The Crown also alleged that Moody was provided with board and lodging at a hotel in Middlesborough between March and May 2004 to a value of £750, ostensibly by Atkinson but in reality paid for by the Appellant. It was alleged that Moody was induced to make a statement to the effect that Lee Harrison never arrived at Errol Street. One of the two versions of that statement was sworn as a statutory declaration in front of a solicitor on 16 June 2004 by Moody.
13. On 1 July 2004, when the Appellant was arrested, two drafts of Moody's statement were found at his house. One of the pages contained the words "At no time was Lee Harrison in my house that night". The Appellant crossed out "was" and inserted "did I see". The next page, which did not mention Lee Harrison in the typed part, had the manuscript addition "at no time was Lee Harrison at my house". The Appellant alleged that this document was for use in the appeal of Petch.
14. Moody was not called to give evidence against Lee Harrison, having been treated as a hostile witness by the Crown at the trial of Petch and Coleman. Nor was he called to give evidence against the Appellant. He was however, the Crown contend, at all material times a potential witness capable of being subpoenaed. The Appellant himself said that he wished him to be called at Lee Harrison's trial so that he could be cross-examined.
15. In his first interview the Appellant made no admissions. He denied any wrong doing. His evidence was consistent with interview. He repeatedly said that he wanted Moody in court for cross-examination. He did not know who sent the Moody documentation to him. He had not met Roweena Frost before 11 May when she had offered him the cross and chain at the police station. He said that he did not want it and chased her away and then she came back. In his second interview he said that in the early stages of the murder enquiry the police would not tell him why they wanted to see Lee. He had only said that he'd bought the cross from Roweena after he had seen the police video. It was stupid not to tell the full story about buying the cross from her, but it was not an attempt to interfere with the witness. He would not tell the police about Petch's appeal although he understood that that was what the Moody documents were for. He had been kept informed of enquiries and developments and was provided with what he thought was a final statement from Moody on 30 June. He wrote the comments about Lee not being in the house. He did not ask anyone to see Moody and have his statement changed. He wanted the people who were making enquiries to come forward but he would not name them. At his next interview his solicitor read a statement and the Appellant said he had no further comment.
16. When he gave evidence at his trial, the Appellant said that he believed that his son was innocent and did not understand why he had pleaded guilty to manslaughter. The Appellant was an old friend of Buster Atkinson and was his landlord. He did not drive and Buster drove him about. There was no conspiracy. Atkinson, who was on a frolic of his own, decided to put up Moody at the Longlands Hotel at his own expense. The Appellant was ignorant of the alleged threats made by Atkinson. The Appellant did nothing to interfere with Roweena Frost as a witness in his son's case. He had not met her until 11 May at the police station. She said her name was Roweena and she was George Coleman's girlfriend. She said that she would not make a statement against Lee. She said it was "those in there," that is the police, "when we rattle they get us in here and give us a tenner or a bag of heroin and we'll do anything". She asked him to lend her a tenner and to give her a tenner for the cross and chain. She was bemused, pallid, sweating and shaking and he gave her a tenner because of the state she was in. Once she had left he thought the cross might be stolen. She came back and he went outside and gave her back the cross. He had not seen her since then until the hearing.
17. Page 2 of Moody's statement was popped through his letterbox on 1 April 2004. It was in an envelope labelled "Tommy" with a phone number and a message saying "Ring Joe Boy". The next day Joe Boy, whom the Appellant did not know, came round and said that he was Petch's cousin and they'd seen Moody who was annoyed and wanted to make a true statement about the appeals of Petch, Coleman and Crossling. The Appellant said if they wanted to tell the truth why not do so, and he added that his son was not there. He wrote the words on the document. It was just a comment of something he believed to be true and was not an attempt to distort justice; it was more or less a question "Did you see Lee there that night?" He photocopied it (other copies were found at his house), and gave the copy back to Joe Boy. It was not an attempt to derail justice in his son's case. On 30 June an envelope containing pages 2 and 3 was delivered to his house. He rang his solicitor but could not get through. Eventually he got through to Lee's solicitor.
18. As to not telling the police in interview about Joe Boy and Petch's appeal he said that he had nothing to hide but did not want to betray a confidence. He was also very suspicious that he was being fitted up. He was suspicious whether it was a coincidence that Roweena Frost was just going to see her solicitor and happened to be walking by the police station when he was in there. He produced a tape during the trial in which he alleged that DC Dawson said "I know Lee wasn't there", and in which the Appellant made references to wealth of £3 million from property.
19. It is important to recount in greater detail the circumstances of the adjournment after Atkinson had pleaded guilty, as the Judge's refusal to grant a lengthy adjournment is a matter of significant complaint. Atkinson's plea of guilty on 1 December 2004 was, the Appellant said, wholly unexpected. He and Atkinson had been represented by the same firm of solicitors, albeit by different partners, and the firm felt obliged to withdraw from the case after the plea. Another local solicitor, Mr Forrester, was assigned to the Appellant's case which was adjourned until 3 December so that he could see the Appellant, who was in custody, in court and take instructions. On 3 December however the Appellant was brought to court late and only a short conference was possible. At that hearing an application was made by the Crown to use Atkinson's plea in evidence at the Appellant's trial but this was later withdrawn. On Sunday 5 December 2004 counsel and Mr Forrester had a conference with the Appellant in prison. He said that he had supplied extensive information about Customs and police corruption which was confidential and relevant to his defence. This evidence, he said, showed why, as he believed, he had been 'fitted up' as he later said in evidence.
20. On 6 December 2004, counsel, who considered it would take twenty hours to take a proper proof from the Appellant and examine a substantial number of documents, applied for an adjournment to enable his solicitor to do that. The Judge was informed that if the adjournment was not granted the solicitor would feel professionally embarrassed and would be unable to continue acting for the Appellant. A hearing in chambers in the absence of the Crown took place and the Judge refused the application to adjourn. Mr Forrester withdrew. Since the Judge was of the opinion that the existing defence statement did not show the relevance of the matters being raised, that document had to be amended and he granted time for that to be done. An assertion of malicious prosecution was added to the defence statement but was not pursued in depth at trial beyond the Defendant stating in evidence that he believed he had been 'fitted up'.
21. During the trial the Appellant was represented by Mr Knox with the assistance of junior counsel Miss Henley, but no solicitors. This it was contended on behalf of the Appellant prevented the defence from obtaining evidence, seeing witnesses and dealing with documents, all of which required the services of a solicitor. There were therefore aspects of the case which they were unable to prepare and hence were not pursued.

The grounds of appeal and submissions.

22. (1) It was submitted that the refusal to grant an adjournment to enable the new solicitor Mr Forrester to take proper instructions, examine new documents, obtain evidence and to see witnesses was an error in law and a failure to accord the Defendant a fair trial within the meaning of Article 6 ECHR. The Appellant was entitled to a solicitor and counsel and through no fault of his own had no solicitor at all. The plea of guilty by Atkinson was a complete surprise and in no way brought about by the Appellant's actions. Indeed, Mr Knox submitted, the plea had no upside for the Appellant. It was therefore through no fault of the Appellant that Mr Brown felt professionally embarrassed, withdrew, and left him without a solicitor. The tape which the Appellant produced could have been verified and an agreed transcription produced had there been an adjournment. The tape was produced by the Appellant and a transcript provided to Mr Knox during the hearing. Parts of the tape were put in cross-examination to Prosecution witnesses, but not to DC Dawson who it was alleged said on the tape that he knew that Lee Harrison was not present at Errol Street. The tape was played to the jury.
23. The Appellant had in fact raised the issues which he wished his new solicitor Mr Forrester to deal with, with his first solicitor, Mr Brown, and with Counsel, Mr Knox. Indeed he had mentioned these matters during the course of his first interview when Mr Brown had interjected to point out that they were wholly irrelevant.
24. During the course of his submissions Mr Knox confirmed to us that the instructions had not varied between the two solicitors, Mr Brown, and the new solicitor, Mr Forrester. It was not so much a change of instructions but an elaboration, or change in the way the case was to be proceeded with. Both Mr Brown and Mr Knox had been aware of the Appellant's assertion that he had been fitted up because of his knowledge and documentation about Customs and police corruption.
25. When asked why the material that had been said by Mr Brown, the first solicitor, to be wholly irrelevant had become relevant Mr Knox was unable to provide the Court with a satisfactory explanation. He said that when the trial was going to be a joint trial with Atkinson as a co-defendant, he would not have gone into such "recondite areas", but because of the plea it became necessary.
26. The Crown who were represented at the renewal of the application for leave to appeal against conviction assisted the Court on the issue of the adjournment. Mr Nicholas Campbell QC submitted that the material which the Appellant wished his new solicitor to investigate had not been investigated earlier because those who represented him then thought that it was not relevant. There was no reason why the change of plea by Atkinson could have made the material relevant. As was raised with the trial judge, the Crown suggested that the Appellant was playing for time and that a delay could only have benefited him in view of the vulnerable witnesses. Roweena Frost had had to be arrested and put in custody in order to give evidence in accordance with the witness summons, and witnesses who were available for the trial might not have been available some days later. If the evidence was relevant an application for fresh evidence should have been presented to the Court.
27. Mr Knox submitted that there was no evidence to suggest that the Appellant was in any way seeking to manipulate Mr Brown, his first solicitor, out of the case nor was he playing for time. Atkinson's plea, which was a complete surprise to him had no upside for him, the failure to grant the adjournment simply meant that the Defence was unable properly to investigate a matter, which in order to secure a fair trial needed to be investigated.
28. We conclude that this ground is without merit. Whether or not to grant an adjournment was a matter wholly within the discretion of the Judge and we see no basis for suggesting that he exercised that discretion improperly. Indeed it is our view that the Judge was correct in refusing the application which was made solely in order to enable the new solicitor to deal with the assertions and material of which the previous solicitor, Mr Brown, and counsel, Mr Knox, were already aware, had clearly considered and in Mr Brown's case, had advised were irrelevant. A full proof dealing with the relevant issues alleged against him by the Prosecution had already been taken from the Appellant by his first solicitor, Mr Brown. Mr Knox accepted during the course of submissions to this Court that the instructions between the solicitors were not essentially varied. The Appellant's first team of advisors, as we have said, knew of the assertions and material relating to alleged corruption and it was then considered irrelevant. Nothing which Mr Knox said to us could explain why it had become any more relevant since Atkinson's plea of guilty. The granting of an adjournment in such circumstances would have been inappropriate. Any delay could have been disadvantageous to the interests of justice: the witnesses had been assembled ready to give their evidence and recalling vulnerable witnesses could have been a difficult task. It was not appropriate that the matter should have been left hanging over their heads or indeed over the Defendant's head.
29. There is no proper basis for any submission that the Appellant was denied a fair trial or that the verdict was rendered unsafe by the refusal to adjourn. In our view the Judge was not merely entitled but right to refuse the application to adjourn in the circumstances.
30. (2) It was said that the Judge's ruling that the indictment did not require the Prosecution to prove that both witnesses, Moody and Roweena Frost, had been interfered with was incorrect. Mr Knox submitted that as the word 'witnesses' in the plural was used in the indictment, the Crown had to prove interference with both Moody and Roweena Frost. The Judge wrongly ruled that the 'plural included the singular' and that the Crown were not required to prove interference with both witnesses. Whilst Moody might be said to have been a potential witness the reality was that he was not going to be a witness at Lee Harrison's trial because the Crown no longer relied upon him as a witness of truth after he had been treated as a hostile witness at the trial of Petch and Coleman.
31. We are satisfied that the Judge's ruling was correct and that he went on to give a careful and proper direction on the law of conspiracy in summing up. The indictment charges a conspiracy by contacting 'potential witnesses' in the trial of Lee Harrison. The judge was correct in his ruling that this meant any potential witness, whether one or more. The plural did include the singular or as is sometimes said the greater the lesser.
32. (3) Mr Knox submitted that the Judge erred in law in refusing to admit a business document, namely a client care letter written by Mr Silvester, a solicitor, confirming that Mr Moody's assistance had been sought in connection with a statement he wished to give in connection with the appeal by Coleman and Crossling. Mr Knox submitted that this letter was admissible either at common law or under Section 24 of the Criminal Justice Act 1988. The Judge ruled that neither the letter nor Mr Silvester's evidence about the letter was admissible and that if the Appellant sought to prove the point he should call Mr Moody.
33. In his summing up the Judge posed the question of what was the purpose of writing 'at no time was Lee Harrison in my house' which the Appellant had accepted that he wrote. Could the document serve different purposes in different people's hands? He also told the jury that the purpose that they had to think about was Mr Harrison's purpose not Mr Petch's purpose.
34. Mr Knox submits that the letter which he sought to adduce in evidence had a limited function, namely to show it was a genuine letter. It was not a massive point but the documents found in the Appellant's house only went to Petch's appeal rather than his son's trial. The Judge's direction on this matter before the jury was insufficiently clear.
35. In our view the Judge's ruling was one which he was entitled to make. The letter could not prove that the sole purpose for the statement being made was for Petch's appeal; only the Appellant or Mr Moody could give evidence as to that. The Appellant himself said in evidence that when he read the statement which he had been told concerned the appeals of Petch, Coleman and Crossling he had said "If you want to tell the truth why not do so. My son wasn't there." It was for that reason that he wrote the words in manuscript which he accepted that he had written on the statement.
36. The Judge's summing up on this issue was both accurate and helpful to the jury and his refusal to admit the letter correct. As Mr Knox conceded this was not a point of major substance and the exclusion of the letter did not render the verdict unsafe.
37. (4) The Judge should not, Mr Knox submitted, have put the incident of 7 July 2004 as if it were part of the Prosecution case when it was not. The Prosecution had not referred to it in opening, nor adduced in evidence nor in any way challenged the fact that the police had not accepted the complaint as reliable. The Judge in such circumstances should have 'trodden warily' Mr Knox submitted.
38. The difficulty with Mr Knox's submission is that he raised the incident of 7 July to the jury in order to demonstrate to them Roweena Frost's unreliability. Mr Swash was called to give evidence indicating that the police did not find support for her complaint and appeared to consider her account unreliable. As the evidence was before the jury the Judge clearly had to sum it up to them. He rehearsed the evidence of both Roweena Frost and that of Mr Swash accurately upon this issue and left it for them to decide what they made of it. The evidence had been given; the jury had to consider it as part of Miss Frost's evidence and it was therefore proper for the Judge to leave it to the jury to decide what effect it had on them. It would not, in our view, have been appropriate for the Judge to have indicated that her evidence was incorrect. Even though the Crown had not led the evidence and did not challenge Mr Swash's evidence the matter remained one for the jury to consider and decide upon. The Judge rightly left the doubts which Mr Swash's evidence cast upon Roweena Frost's account of this incident clearly for the jury. There was no error in the summing up upon this issue.
39. (5) The Judge should, Mr Knox submitted, have reminded the jury of the particular need for caution in relation to Roweena Frost's evidence. She was, Mr Knox submitted, 'damaged goods' and clearly unreliable. The Judge should have specifically warned them of her convictions including that for perverting the course of justice.
40. It is true that the Judge gave no set piece warning to the jury to approach Miss Frost's evidence with caution but his summing up contained numerous warnings about its unreliability and the fact that she had previous convictions. Thus he referred at page 14 to the criticism that she was an unreliable witness about dates, at page 22 that Mr Knox had described her as 'pitiful and pathetic' and was she therefore telling the truth about the essential matters relevant to the case; at page 26 the Judge reminded the jury that they had seen her and they must decide how reliable she was 'if at all', and whether her credibility was undermined was a matter for the jury. At page 27 the Judge referred to the fact that she had been in trouble 'again and again and again and again and again. Do not overlook that..' he then referred to her having been thieving to sustain her heroin addictions.
41. The jury had heard Roweena Frost's evidence with its cross-examination upon her prostitution, drug habit and previous convictions including that for perverting the course of justice. The Judge put the question of her reliability, her convictions and her past clearly before the jury. His direction was appropriate and in view of the clear warnings which he gave about her evidence and the criticisms made of it a set piece warning for specific caution was unnecessary.
42. (6) The inaccuracies and lies in Roweena Frost's evidence about what occurred at the police station, in particular in relation to the cross or chain was not put before the jury. These matters should have been expressly rehearsed, Mr Knox submits, so as to counter balance the direction the Judge gave as to the Appellant's admitted lies in relation to this incident.
43. The Judge did not rehearse the lies or inaccuracies in Miss Frost's evidence about the 11 May meeting at the police station but we are satisfied that this did not in any way render the verdict unsafe. The jury were well aware of her evidence which had been cross-examined upon at length and did not need to be reminded of every detail of it.
44. (7) The Judge failed to remind the jury that Atkinson's big silver car had been written off at a time that Roweena Frost alleged he had used the car when making threats to her. The Judge did remind the jury, at Mr Knox's invitation, at the end of his summing up that the car had been written off at the end of March, rather than, as he had said earlier in his summing up, at the end of April but he did not, Mr Knox submitted, deal with the importance of this issue.
45. The Judge's summing up on this issue was perfectly fair and accurate and when he corrected his error as to the date no further direction was needed. The issue was clearly before the jury and a matter for them to attach such weight to it as they thought fit.
46. (8) The Judge wrongly invited the jury to infer that the Defendant was trying to buy justice because of his possible reference to his finances on the tape. The Judge's reference to 'buying justice' was objectionable.
47. We do not accept this criticism of the summing up. The evidence about finances was introduced by the Defendant himself by the production of the tape. By referring to the matter as he did, the Judge was in our view merely seeking to ensure that the jury did not jump to any unfair conclusions against the Appellant because of his apparent wealth. As the Judge said, the evidence might be thought to be relevant to the Appellant's relationship with Atkinson.
48. (9) Mr Knox also made a general criticism of the summing up. He submitted that in view of the comments made by the Judge he should have given the standard direction to the jury to ignore such comments, as the facts were a matter for them. We however are satisfied that this is precisely what the Judge did. At page 5 of the summing up the Judge said this:-

"So can I say that if there is anything that I omit to mention in looking at the evidence with you, but which has stuck in your mind because you think it is of some importance, then do not give it any less importance merely because I have not touched upon it. And I suppose likewise, if I do dwell upon some aspect of the evidence which quite honestly you think does not get you anywhere, do not give it any significance just because I have touched upon. The reason for that is that the whole of the evidence is your raw material. You decide what is important and what is not. You say what you make of it. You are the judges of the facts of the truth in this case. I shall seek to be of assistance in the way that I have explained."

49. We are satisfied that this passage and the numerous other passages in the summing up stating that it is for the jury to decide the facts, was entirely accurate in its description of the respective functions of judge and jury. There is no reason to suppose that the jury were not aware that the facts were their province and that they were to make their own decision upon them irrespective of what the Judge said.
50. The grounds contain other matters which Mr Knox did not deal with in his submissions. We have considered however not only the submissions but the grounds and the contents of his advices and skeleton argument in full and are satisfied that there is no merit in any of the grounds put forward either in writing or in oral submissions on the issue of conviction. There is nothing contained within them which renders the verdict unsafe. Accordingly the application for leave to appeal against conviction is refused.

Sentence.

51. The Appellant is now 63 and has previous convictions for dishonesty, violence and drug offences for which he received both custodial and non custodial penalties. His most substantial term of imprisonment was 20 months for conspiring or assisting in the commission of a drug offence outside the United Kingdom on 9.6.1982. He had had no previous convictions since that year.
52. A pre-sentence report said that his lack of convictions since 1982 showed that he was a reformed character.
53. When passing sentence the Judge said that the conspiracy was of the most serious type namely to thwart the course of justice in a murder trial and was aggravated by the fact that it was a joint implementation of a conspiracy in different ways over a period of months. The campaign was planned and controlled by the Appellant who had no real mitigation. No account was taken of his attempts to silence a vulnerable witness during the trial or of his boast of wealth in a secret tape recording. That recording however showed his inherent deviousness and arrogant disdain for officers of the law and the grip that he had on others. The 10 year sentence was intended to stand as a strong deterrent to others.
54. The Judge made specific reference to attempting silence a number of vulnerable witnesses with repeated threats, in one case with inducement, and on one occasion with the actual use of physical violence to the person and damage to domestic property. It appears therefore that the Judge accepted the evidence of Roweena Frost as to the incident of 7 July 2004 even though the Crown had not relied upon it.
55. The Judge said that he was satisfied that the Appellant was a man of ample means, quite able to pay, and hence ordered him to pay £23,433 towards the Prosecution's costs within six months.
56. Mr Knox submitted to us that the sentence of imprisonment and the costs order were both manifestly excessive. There was no proper basis for accepting that there had been a physical assault on Roweena Frost or her partner on 7 July 2004; the sentence was out of line with the sentencing authorities such as Attorney-Generals Reference number 44 of 1994, [1996] 1 Crim Ap R (S) 256 which together with other cases indicated that a sentence of no higher than 3 years, at its highest would be appropriate and that many of the sentences passed were in months; the sentence was not only out of proportion with the authorities but out of proportion with the 9 years sentence passed on the Appellant's son Lee Harrison, and Jonathan Crossling for the substantive offence of manslaughter; the sentence was also out of line with the maximum penalty for the statutory offence of intimidating a witness under the Criminal Justice and Public Order Act 1994 section 51, which is 5 years; there was no evidence of means upon which a costs order could properly be made.
57. In summary Mr Knox submitted that a sentence of 10 years was out of all proportion to the offence committed.
58. We consider that there is merit in Mr Knox's submission on sentence. This was without question a serious case. It was a conspiracy, and as the Judge said it involved a course of conduct to interfere with the course of justice in a murder trial. The 5 year statutory maximum did not apply but we are mindful of the authorities in Thomas Current Sentencing Practice which indicate a maximum of 4 or 5 years. (R v Taggart [1995] 16 Crim Ap R (S) 789 and R v Williams [1995] 16 Crim Ap R (S) 191). It also has to be taken into account that there are doubts as to whether any violence occurred and taken at its highest such violence as there was appears to have been relatively minor.
59. We conclude that 10 years in these circumstances was excessive. A conspiracy to interfere with a murder trial in a climate of increasing interference with the justice system however requires, as the Judge said, a deterrent sentence. Having taken into account Mr Knox's submissions, we consider that a sentence of 6 years imprisonment would meet the justice of the case.
60. We also conclude that there was no proper evidence of means before the Judge upon which he could base a substantial costs order. In the absence of any proper enquiry into means we must quash the order for costs.
61. Accordingly the sentence of 10 years imprisonment is quashed and substituted for it is a sentence of 6 years. The order for the payment of £23,433 prosecution costs is also quashed.