England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MIDDLESEX GUILDHALL
His Honour Judge Blacksell QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/10/2006

President of the Queen's Bench Division :

1. On 10 June 2004, in the Crown Court at Middlesex Guildhall, before His Honour Judge Blacksell QC and a jury, following a retrial, this appellant was convicted of causing a public nuisance (count 1) and arson with intent to endanger life (counts 2 and 5). No verdicts were entered on alternative counts.
2. On 9^th July he was sentenced to life imprisonment on each count to run concurrently. After considering the provisions of section 82A of the Powers of Criminal Courts (Sentencing) Act 2000, the judge concluded that because of the exceptional circumstances, it would be inappropriate to assess any "tariff" period.
3. Leave to appeal against the convictions on counts 2 and 5, and against sentence, were granted by the single judge. The appeals against conviction were dismissed on 28 July. We shall now give our reasons. The appeal against sentence was adjourned generally. No submissions have yet been made. This appeal will be restored to the list as soon as practicable.
4. A comprehensive review of all the evidence in the case is not required. We shall provide a sufficient narrative to enable us to address the issues which arise in the appeal. In brief, as a result of an overwhelming sense of grievance, the appellant mounted a prolonged campaign against a very large number of individuals personally involved with the investigation into and assessment of his mental state, or connected with public or private bodies associated with their work. It is difficult to exaggerate the devastating impact of this campaign on many of those who were victims of it. It was conducted with great cunning, intelligence and ruthlessness, and, taken as a whole, it was unremitting and unrelenting.
5. In October 1996, after his mother had expressed concerns about the appellant's health, a social worker, a care manager employed by the London Borough of Ealing, Shauna Bailey, organised a Mental Health Act assessment. She attended the Jan family home together with a colleague, Dr Keen, and two police officers. While the mental health assessment was in progress, the appellant became upset and agitated, and began to make threats against those who were present. The conclusion was that although he was not mentally ill, he was suffering from a personality disorder of psychopathic type for which it was not appropriate to order his detention under the Mental Health Act. In order to prevent an immediate breach of the peace, the appellant was arrested, but released without charge on the following day. The assessment was confirmed by letter signed by Miss Bailey.
6. Shortly afterwards, in November 1996, the appellant wrote to Miss Bailey articulating what he perceived to have been a violation of his liberty, threatening that she would not "get away with it". He made an official complaint to her superior, referring to errors made in the assessment, saying "I will not forgive or forget as long as I live". This was the start of a series of official complaints were made against members of the assessing team and those who associated with or supported them. These individuals included employees of the London Borough of Ealing, and members of the Council, members of the West London Mental Health Trust, and eventually employees of Bevan Ashford, solicitors instructed by the West London Mental Health Trust in civil proceedings, members of the South London Maudsley National Health Trust and members of the National Schizophrenia Fellowship.
7. Over the next few years the appellant wrote over six thousand pages of documents of complaint to Social Services for Ealing. Mental health resource centres were flooded with telephone calls from him. There was direct evidence that a very large number of different individuals were made the subject of repeated acts of harassment and vandalism by the appellant. These individuals received silent as well as threatening and nuisance telephone calls to their homes and places of work, and correspondence of a threatening nature. Some were followed to their home addresses. Property belonging to them was damaged. Car tyres were slashed. Unwanted documents and services, purporting to have been ordered by them, were delivered to their homes. Tradesmen and taxi drivers were sent to a number of different homes. The appellant was careful to cover his tracks. He changed his identity, pretending to be people he was not, travelling in cars to which false registration plates had been attached, and changing addresses, in such a way that nobody could know precisely at any given moment where he could be found. If it were necessary to set out the appellant's behaviour throughout the period covered by count 1, this narrative would be virtually interminable.
8. Keith Galloway was a social worker, a colleague of Shauna Baker. His car was set alight on 9 November 1997, when a flame was applied to combustible material in the boot. This was the first occasion when arson was used in the course of the appellant's campaign. Mr Galloway's car was set alight again on 22 January 1998. This incident involved the mud flaps of the car.
9. In January 2001 Shauna Bailey was the victim of an assault outside her home. On 2 August 2001 she was again assaulted, with sufficient violence to require hospital treatment. On discharge, refuge accommodation was found for her. In the early hours of the following morning, her car, which was parked outside her home, was damaged by fire. The fire was started by petrol, placed near a neighbour's car, parked with its rear towards the rear of Miss Bailey's vehicle, and set alight. This resulted in heat damage to both cars. There was a small risk of much more disasterous consequences. At that time a melted petrol can was recovered, together with a newspaper, which was probably used as a wick. Much later, a torn piece of newspaper, which precisely fitted the wick, was recovered from the appellant's car.
10. Simon O'Dell was the centre and sector manager of the West London Healthcare Trust. He received a number of silent telephone calls, and then in June 2001, the appellant left a telephone message with a receptionist requiring Mr O'Dell to meet him. On 8^th October 2001, a petrol bomb was thrown on to the road outside the drive of Mr O'Dell's home.
11. A few days after this incident, on 12 October, the appellant was arrested in connection with the fire which had damaged both Miss Bailey's and her neighbour's cars. He denied responsibility. While he was being strip searched, he grabbed hold of his testicles and said, "this is for Shauna Bailey, let her know she's for it". When interviewed, however, he made "no comment".
12. Thereafter, on 8^th November Mr O'Dell was telephoned and threatened, and some five or six weeks later, the appellant telephoned Mr O'Dell's office and told the receptionist that he would catch Mr O'Dell. In the meantime, during October 2001, a councillor at Ealing, Yvonne Johnson, received fifty two calls from the appellant at her home address. He claimed that there was a conspiracy against him, and that the police, social services, and Liz Brookes and others were behind it. Dr Elizabeth Brookes was another councillor, Chair of the Social Services Committee. She became the victim of another arson. In fact, much earlier, in July 1998, the windows of her car were broken on two occasions. Thereafter she had received a number of silent telephone calls. In the early hours of the morning of 30 November 2001, the danger very seriously escalated. Petrol was poured onto or through the front door of her home, and ignited. It caused very serious damage to the property. By good fortune, she and her family were able to make their escape, but their house was uninhabitable for six months. In any event, following the outrage, they felt obliged for reasons of safety to leave their home.
13. To provide a more rounded picture of the links between the specific counts of arson and the more general count of public nuisance, we shall refer to three further individual victims. The council leader, Mr Cudmore, and his wife started to receive silent telephone calls in the middle of the night. They were of a threatening, angry nature. Mr Cudmore eventually received a call saying it was his last warning, that he should leave Ealing, and that the appellant could only foresee real tragedy for him. The appellant said, "I will fucking put an end to you. You need 24 hour protection. Any more court proceedings against me and you will regret it…I am not putting up with your fucking fascism any more". Following the fire at the home of Elizabeth Brooks, Mrs Cudmore received a telephone call in which the appellant said that he had "got back his arson bag", with all his clothes and he asked for £75, saying, "if I go to hell you are coming with me".
14. Dr Ann Boocock from South London and Mawdesley NHS Trust met the appellant for the first time in February 2002. Thereafter she met him some eight or nine times. No form of psychosis was diagnosed. In November 2002 she received various messages from the appellant that if she ever put the phone down again, he would be waiting for her, and if she would not talk to him, she would be to blame for the consequences and that things happened to people who were living on their own. He gave her one year to get out of her home. The threats caused her serious concern. Her opinion was that the appellant did not suffer any form of mental illness, but significant anxiety and depression had been brought on by the original assessment in 1996 and he was upset by the label "psychopath". He was also terrified of another assessment, and said that she would need "armed police if you tried". She asked Dr Pierzchniak to undertake another assessment.
15. Dr Pierzchniak had a telephone conversation with the appellant in April 2002, which was tape recorded. By the time of this conversation the appellant had already familiarised himself with and referred to the doctor's home address, and his wife's Christian name. He threatened to come to their home, and shouted that the doctor should be punished and his life made hell for him and his family, that he knew the address of Dr Boocock, and that she would have to move to Scotland.
16. The appellant was arrested in February 2002 and again in February 2003, at his flat in Streatham. While in custody on this later occasion, he requested permission to phone a friend. When it was granted, he telephoned Mr Cudmore, as we have already noted, himself a victim of the appellant. He was interviewed and read from a prepared statement. Thereafter he declined to make any further comment.
17. During the course of a search of his home, a number of handwritten jottings and notes were seized. These ranged from personal notes, with diaries containing his thoughts, together with copies of much of the correspondence sent by the appellant to those by whom he was aggrieved. One of the documents was headed "War Aims". The objective was to "prevent any future psychological or physical assaults on me….to safeguard my sense of security and freedom to live a normal life…to punish those individuals responsible for planning financing and waging the aggressive war against me." The paper then includes a list of those in the "first order culpability". There are seven names in this list. They include Russell Keen, by now living abroad, Shauna Bailey and Liz Brookes. The "second order" of culpability list includes Simon O'Dell. There was a "third order" of culpability, which taken together with approximately sixty or so individuals personally identified, amounted to what the appellant described in the document as "the Grand Coalition" against him. Dr Pierzchniak's name appeared beside the list of those in the "first order" of culpability. Another individual, Professor Tutt, whose name appeared in the "first order" of culpability had received a letter from the appellant recording that "every single case is a lost cause by third parties organised in your grand coalition cause" with a reference to "retribution". The references in this letter directly echoed the language the document entitled "War Aims".
18. On the same day the police went to the appellant's address at Hatherley Court. They found another crucial document, headed "the Fascist Hoard", together with a working paper, headed "body contact points". This listed materials, and how to use them so as to avoid leaving evidence, and how instead to deposit "fake evidence". Handwritten notes found at this address spoke of the appellant's hatred for Shauna Bailey and of others who were part of the conspiracy against him. The document, the Fascist Hoard, appears to be a pictorial analysis of the public bodies and individuals against whom the appellant had taken or intended to take action. Thus, for example, alongside Miss Bailey's name, the word "eliminated" appears, with a line drawn through the box in which her name appears. Another box includes the words "incendiary actions and letters esp SB", Shauna Bailey's initials. The box for Shauna Bailey includes the words, "routed by RJ….", the appellant's initials. Elizabeth Brookes' name appears in another box, described as the "ex-SSD chief". The line leading to her name reads "disrupted". Making every allowance for the bizarre nature of this document, common sense suggests that it represents the appellant's personal record of what he believed to have been some of the successes of his campaign.
19. The appellant was interviewed again in June 2003. He denied having written some of the entries on the Fascist Hoard document, claiming that they had been put there by the police, or the CPS. However, he declined to give any further explanation about those parts of the document which he admitted writing, and refused to make any comment about the "first second and third order of culpability" document, the "War Aims" document and the "body contact points" working paper. The appellant was arrested and charged with public nuisance, and two assaults on and the arson involving Shauna Bailey. He was not charged with arson arising from the fire at the home of Elizabeth Brookes.
20. The appellant gave evidence at trial. We need not detail his explanation of events which formed part of the basis of the public nuisance conviction nor evidence called in his support. In summary, however, he denied having anything to do with the arson attack involving Shauna Bailey's car. He offered an alibi for it. Similarly, the arson attack on Elizabeth Brookes' home had nothing to do with him. He did not know who was responsible.
21. Leave to appeal was granted on two matters raised in the original grounds of appeal. The first of the complaints arose from the order made by Judge Blacksell to permit an amendment to the indictment to include a specific count relating to the arson at the home of Elizabeth Brookes, and the second, linked to the first, was directed at the way in which issues of "similar fact" were addressed.
22. The pre-trial papers served on the defendant included the material evidence which linked him with the arson at home of Elizabeth Brooks and her partner. This included her office as Chair of the Social Services Committee, which heard and dealt with the appellant's complaint, the references to her in the document, "Fascist Hoard", and her identification among those in the "first order" of culpability. In the Grand Coalition described in his "War Aims".
23. When the position was first addressed by counsel appearing for the Crown, he concluded that this evidence should be used as "similar fact evidence" in support of the allegation that the appellant was criminally involved in what we shall describe as the Shauna Bailey arson. Therefore no specific count relating to the Elizabeth Brookes' arson appeared in the original indictment. The first trial began in October 2003. In circumstances which are not relevant for present purposes, after about a fortnight or so, the jury was discharged. Counsel for the Crown was not available for the re-trial, and returned his brief.
24. When preparing the case for the second trial, basing himself on the papers originally served on the defence, counsel for the Crown, Mr Orlando Pownall QC, who had taken over responsibility for the conduct of the prosecution, concluded that there was sufficient evidence to justify the conclusion that the appellant was responsible for the Elizabeth Brookes' arson. Accordingly, he decided that the indictment should reflect that fact. An application was made to amend it by adding what was then the new count 5. The application was opposed by counsel then appearing for the appellant, on the basis that there was no sufficient evidence to sustain the count. The amendment was allowed. The decision is criticised in this appeal, effectively on the same basis on which the original application was opposed.
25. Without a repeated review of the evidence, we can simply record that we agree with the judge that there was indeed sufficient evidence to justify the inclusion of this count. The amendment caused no prejudice to the appellant. It raised no new issues. It can have created no problems for the proper conduct of the defence. Indeed, in our view, a specific count relating to the Elizabeth Brookes' arson should have been included in the indictment from the start. The amendment produced sensible clarity, without any corresponding unfairness. It was properly made.
26. We can now address a broad complaint, summarised in the course of argument as a complaint about "similar fact". In essence Mr Karim Khalil QC argued that the circumstances of the Shauna Bailey and Elizabeth Brookes' arsons in particular, but also those targeted at Keith Galloway and Simon O'Dell, were all entirely different. Thus, for example, there was a dramatic difference between an arson started at the back of the car, albeit close to Shauna Bailey's home, and an arson involving a direct attack on the door of Elizabeth Brookes' home. These arsons were not and should not have been treated as similar fact. Therefore the admission of the evidence relating to the arson at the home of Elizabeth Brookes' to assist in the identification of the person responsible for the Shauna Bailey arson unfairly prejudiced the appellant. Yet the evidence lacked the "fingerprint" or similar quality referred to in DPP v P [1991] 2 AC 447, said to be a pre-condition to admissibility where the essential issue was the identity of the person responsible for both arsons.
27. In our judgment, the argument approaches these issues as if some kind of compartmentalisation is necessarily required. As it happens, there was in this case ample evidence, quite independent of the "similar fact" evidence, that the appellant was responsible for both these arsons, and indeed the arsons involving Simon O'Dell and Keith Galloway. In the appellant's own documents each victim of arson was linked by him with his overwhelming sense of grievance against each of them personally, and against the bodies they represented. Each arson was undoubtedly started deliberately. Fortunately, deliberate arson attacks following apparently casual vandalism are relatively rare, but here, arson or "incendiary action" as he described it himself, provided one of the most dangerous weapons in the appellant's campaign. The Crown's case was that on proper analysis, and without minimising their impact, although the arson offences were the subject of separate counts, in reality, they simply represented one particular manifestation of the conduct which formed part of the allegation of public nuisance. Mr Khalil supported his argument by drawing attention to the judge's failure expressly to direct the jury that they should not rely on their conclusions in respect of the allegation of public nuisance when they were considering the arson allegations. Mr Pownall immediately accepted that no specific direction to this effect was given.
28. This provides the context in which to consider the judge's directions on "similar fact". He began by explaining the limitations of the principle. For example, commenting that if there were no other evidence implicating the defendant, "that he had the opportunity, that he had targeted the individual and had made contact in a threatening way, that the incidents all occurred in the same sort of way and the same time of night would be far from sufficient "to enable the jury to conclude that the defendant had committed the particular offence". If however the jury were sure that the witnesses for the Crown had provided reliable evidence about the events they had described, they should look at the whole of the evidence and ask whether there was a sufficiently close relationship between the circumstances of the individual offences or occurrences that they must have been committed by the same person.
29. The judge explained the burden on the prosecution to make the jury sure of guilt "in relation to the count" they were considering. If they were in fact sure about "a particular count", then that conclusion could be used when considering the evidence in relation to another count. Before they could do so, however, he emphasised that the jury should take this process "stage by stage", and should only do so if they were sure, plainly referring to guilt of the individual count, before they could use it in this way.
30. In our judgment, the basis on which potential "similar fact" evidence could properly be used by the jury was, in the particular circumstances of this case, sufficiently explained. It was not necessary for the judge to refer to or make observations about the need for a "fingerprint", or "signature", or something similar. We immediately recognise that it would have been better for the judge to have given what we shall describe as the standard direction relating to separate consideration of each count, pointing out that if the jury were satisfied that the public nuisance count was proved, it did not automatically or necessarily follow that the appellant was guilty of any individual arson count. To that extent, although references were made to "particular counts", the summing up was not entirely satisfactory. We therefore gave leave to the appellant to argue this point. However the extent of the deficiency was negligible. The numerous acts complained of in count one involved a vast number of activities of a disparate nature against a very substantial number of individuals, who had no necessary connection with each other, save that all represented targets for the appellant's personal grievances. The Crown's case at trial was that if it was proved beyond question that the defendant was indeed responsible for the very serious public nuisance involving a large number of people, who were proved targets of this sense of grievance, it was inherently improbable that someone other than the defendant was ultimately responsible for the four arsons. The judge's "similar fact" directions were, as we have explained, adequate for present purposes. Provided the jury were sure – and their verdict indicated that they were sure – that the appellant was responsible for the incidents alleged as public nuisance, it was permissible for them to take account of that fact in deciding whether or not it was proved that the appellant was responsible for the arsons. That is what the judge conveyed to the jury when he directed them to proceed in relation to any particular count on a stage by stage basis. Assuming , as we do, that the jury did indeed take account of their conclusions on count one in relation to the arson counts, in our judgment they were entitled to do so. In the context of the issues which arose in this case, the omission of part of the standard direction in relation to separate consideration of each count did not undermine the safety of the convictions on counts two and five, or the remaining counts of arson.
31. Mr Khalil fortified his similar fact submission by advancing a new ground of appeal arising from the judge's direction to the jury that the appellant could be convicted if he was the arsonist, or if he had counselled or procured someone else to commit any of the arsons. He suggested that this second basis of conviction was inconsistent with the way in which the Crown had put its case, and was in any event entirely contrary to the basis on which the "similar fact" evidence had been admitted.
32. Part of the problem may have arisen from the fact that Mr Khalil did not act for the appellant at trial. Mr Pownall made clear that the Crown's case was that the appellant was indeed a principal rather than a secondary party in these arsons. Nevertheless, when opening the case to the jury, he told them that the Crown did not necessarily "have to prove that on each occasion it was the defendant who actually brandished the implement which causes the damage". He suggested that guilt would be established if the jury were sure that whoever may have done so, even if it was not the defendant, it had been done at his instigation.
33. When in due course the appellant gave evidence he claimed that others were responsible for a number of individual activities. Indeed, as the judge put it in his summing up, on his own admission to the jury, the appellant used others to commit offences. Accordingly he was right to leave the issue to the jury, and direct them (and the direction itself is not criticised) about the way in which the appellant might be guilty where others had acted for him. That direction did not undermine the basis on which the similar fact evidence was admitted. The Crown's case remained that, whatever the appellant may have said in evidence, he was criminally involved in and ultimately responsible for the arsons.
34. We mean no disrespect to Mr Khalil's submission, but the remaining grounds provide him with no further assistance. First, the judge was entitled to refuse to discharge the jury after they had heard and read inadmissible evidence. Second, the judge sufficiently cautioned the jury against drawing inferences of guilt from lies told by the appellant. Third, the bad character issue was addressed by the judge on the basis that the defence at trial did not wish anything to be said to the jury on the topic. We can understand why. The omission was not material. Taken singly, or cumulatively, the remaining grounds were unarguable.
35. In our judgment the evidence that the appellant was responsible for the arsons alleged in count two and count five was overwhelming. Having considered all the evidence, including the evidence from the appellant himself, it was for the jury to reach decisions properly reflective his state of mind when, as they found, he was responsible for the fires alleged in counts two and five. No proper basis for interfering with the jury's verdicts was demonstrated. Accordingly the appeal was dismissed.
36. We shall return to the appeal against sentence in due course. When it is listed, we shall be assisted by the presence of the Crown to present argument on the statutory structure and the issues of principle which arise.