England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Thursday, 12th January 2006

1. THE VICE PRESIDENT: On 20th May 2005 at Blackfriars Crown Court, following a trial before His Honour Judge Martineau, this applicant was convicted of using threatening or abusive words or behaviour with intent to cause fear or provocation of violence contrary to section 31(1)(a) of the Crime and Disorder Act 1998, and on a second count of having an article with a blade or point contrary to section 131(1) of the Criminal Justice Act 1988. He was sentenced to 21 months' imprisonment in relation to the first offence and to 9 months concurrently in relation to count 2. His application for leave to appeal against conviction and sentence was referred to the Full Court by the Single Judge. We grant leave to appeal against conviction. We refuse leave to appeal against sentence.
2. The facts were these. On 8th September 2004, the complainant, Mr Suheir, was trying to park his motorcar when the appellant overtook and shouted words of abuse. Thereafter, the appellant got out of his car and approached the complainant, shouting racist abuse in an aggressive fashion and holding what prosecution witnesses identified as a knife. The incident was over in seconds, but it was witnessed, apart from the complainant, by two entirely independent witnesses.
3. The prosecution case in relation to the first count was that this conduct demonstrated the section 31 offence and, in that the appellant had a bladed article in his possession in a public place, without reason or lawful authority, the second count likewise was made out.
4. The defendant's case was that he had not been in possession of any knife or bladed article: what he was actually holding was a mobile telephone. In his evidence before the jury, which, as will emerge, differed from the basis on which prosecution witnesses had been cross-examined on his behalf and from the defence statement which had been previously filed, the defendant admitted that he had called the complainant a "nigger" though he denied the phrase "fucking nigger", and he admitted he may have called him a "cunt".
5. In evidence, he said that such language as he did use was in response to provocation from the complainant, who had called him "a white piece of shit". That was not an allegation that had been put to the prosecution witnesses in cross-examination, nor did it appear in the defence statement.
6. In just a little more detail, the complainant described driving his car in Elmstone Road, Fulham, with a red Volkswagen motorcar driven by the appellant close behind. The appellant seemed to be in a hurry, so Mr Suheir pulled over to allow him to pass. Thereupon, the appellant stopped his car in front of the complainant's and said that the complainant was driving the world's smallest car; he could not drive and he was "a wanker". The complainant got out of his car and said: "What did you say?" Whereupon, the appellant got out of his car and walked towards the complainant with a knife at his side, the blade of which was some six inches long and was being pointed upwards diagonally from waist level. The appellant, according to Mr Suheir, was gritting his teeth, frowning and repeatedly shouting "fucking nigger" in an aggressive manner, so Mr Suheir ran away. As he did so, he heard the appellant shout "cunt". Later he saw the appellant further up the road with a cloth with which he appeared to be wiping his hands. He denied, in cross-examination, having mistaken a mobile telephone for what he described as a knife.
7. A Miss Lacy was the first of the independent witnesses. She had been knocking on doors raising funds for charity. She heard shouting. She described the appellant shouting from his vehicle about the size of the complainant's car and incapacity to drive it. Miss Lacy said the appellant called the complainant "a fucking nigger" on two or three occasions and also "a fucking cunt". The complainant asked "what?" She described the appellant, with his arm outstretched, carrying a knife, at shoulder level, in an extremely threatening and aggressive manner and she described the complainant as retreating, holding his palms up. She thought the complainant was going to be stabbed. The police came. They arrested the appellant. He, according to Miss Lacy, at that stage took hold of his crotch and shook it in an insulting gesture towards her.
8. Mr Addinsell was the other independent witness. He described hearing the appellant shouting at the complainant and, in particular, shouting that he was a "fucking nigger".
9. Mr Addinsell also noticed a flash of light which he described as a mechanical flash. He was fearful. He did not want to get involved but he used his mobile telephone to take pictures which, as it turned, out were not very good.
10. The appellant also, according to Mr Addinsell, described the complainant as "a little cunt".
11. While awaiting the arrival of the police, Mr Addinsell saw the appellant had parked and gone into a nearby building, from which he emerged with a piece of cloth dangling in his hand. He removed something from his car, according to Mr Addinsell, which he concealed in the cloth. Mr Addinsell said it was a solid object. He did not see a knife. He said that he was trying not to look directly at the appellant.
12. Two police constables gave evidence of the appellant's arrest. They did not accept, when they were cross-examined, that the appellant claimed not to have a knife but that he did have a mobile telephone. They specifically denied that he showed a mobile telephone to them.
13. At the conclusion of the cross-examination of all the prosecution witnesses to whom we have referred, defence counsel sought to have them recalled so that the mobile telephone could be shown to them for their comments. The judge ruled that they were not to be recalled for that purpose. That gives rise to one of the grounds of appeal to which in due course we shall come.
14. The further matter which gives rise to appeal is the judge's ruling after the appellant's counsel and solicitor had been given permission to withdraw from representing the defendant because of their professional embarrassment.
15. It is apparent from the ruling which the judge made in relation to this, that the embarrassment arose because of the divergence to which we have already drawn attention between the cross-examination of the prosecution witnesses as to the language used by the appellant and of the defence statement on the one hand and the different evidence which, it was apparent those representing him appreciated, the appellant was about to give.
16. The judge, in refusing to grant an adjournment for further legal representation for the defendant, commented that the trial had reached an advanced stage. The most important part of it had been the cross-examination of the prosecution witnesses, which had all been completed. If fresh legal representation were granted, the problem arising from the anticipated evidence of the defendant would still persist. The only way in which that could be avoided would be if the judge were to grant a retrial. That he was not prepared to do. He said that he would be able to give assistance to the defendant and he would highlight discrepancies in the prosecution witness evidence, as indeed he did when he came to sum the matter up to the jury. The judge concluded, in the light of all these matters, that the defendant could continue to receive a fair trial albeit that he was not, by that stage, represented and he could give evidence, as indeed he did. This was not a case in which it was contemplated that there would be any witnesses called for the defence.
17. The defendant thereupon gave evidence, the substance of which we have already identified. When he was cross-examined, he accepted that he had changed his account in relation to whether or not he had called the complainant a "nigger". He in effect agreed that he had, certainly in relation to the defence statement and for the purposes of the cross-examination of the prosecution witnesses given instructions presenting a false case. He admitted that he used the term nigger. He claimed this was in response to provocative language on the part of the complainant.
18. After the defendant had given evidence, counsel then prosecuting, who is not counsel who appears for the Crown before us, made what, it is common ground, was an extremely long speech, of the order of three-quarters of an hour. The judge in the course of the trial commented on its excessive length. In due course, it was brought to the attention of the trial judge that, as the defendant by that stage was not represented, it may well be that prosecuting counsel ought not to have been making a speech at all. However, that took place and gives rise to a further ground of appeal.
19. On the appellant's behalf Mr Stevens, who did not appear at the trial, first challenges the judge's refusal to adjourn the matter to enable fresh legal representation. He points out that the defendant's legal aid certificate had not been discharged. In that respect he relies on R v Harris [1985] Crim LR 244, where there is an extremely short report of a decision of this Court, in December 1984. In that case the appellant had been charged with wounding with intent and, during the course of his trial, his counsel and solicitor ceased to act for him and he sought an adjournment. It is not possible from the brief report of that case before this Court to know precisely at what stage the departure of the defence legal representatives took place on to what extent the issues were at all complicated. The brief report indicates that, the judge having taken no action to revoke the appellant's legal aid certificate, the appellant still had a right to legal representation. In view of the material irregularity to which that gave rise, "the conviction must therefore be quashed."
20. In that context, Mr Stevens accepts that it was a matter for the exercise of discretion by the trial judge in the present case whether or not to permit an adjournment for fresh legal representation. It is apparent that part of that exercise of discretion would involve the judge considering whether, in all the circumstances of the case and the stage which had been reached, a change of representation should be permitted.
21. Mr Stevens accepts that, at the time when the judge's discretion was exercised, the case was a straightforward one. But, he submits, it ceased to be straightforward thereafter, first, because the second count in relation to carrying the weapon, was added, and, secondly because, after they had been considering their verdict for some time, the jury sent a note in relation to which Mr Stevens submits that, had there been legal representation, it may be that useful comments could have been made by counsel on behalf of the defence.
22. So far as the addition of the new count is concerned, Mr Stevens rightly concedes that, even had the defendant, at that stage, been represented by counsel, counsel could not have begun to object to the addition of such a count. But, says Mr Stevens, it may be that the defendant would not have understood what was going on by the addition of that second count.
23. So far as the jury note is concerned, that related to the late production of the mobile telephone, and was in these terms:

"element of doubt has been introduced by the late production of the mobile. We were not happy that the 'phone was not produced when the witnesses were present. Can we be advised about this. We were all shocked when the phone which was so critical was produced in an unconventional way out of the defendant's pockets."

The telephone had indeed been produced by the defendant when he was giving evidence.

24. Mr Stevens' submits that the direction given by the learned judge in relation to the note was, as he put it, "not as fair as it could have been". In this respect, he submits that the judge should have directed the jury expressly that, if they had any doubt in relation to the possession of a knife rather than a mobile telephone, they ought to acquit. Mr Stevens accepts that the judge had fully and accurately directed the jury, earlier in his summing-up, with regard to the burden and standard of proof.
25. Mr Stevens further complains of the judge's failure to permit the prosecution witnesses to be recalled so that the mobile telephone could be shown to them. It is to be noted that both the complainant and Mrs Lacy had, as we have indicated, expressly denied, when cross-examined, that they could have mistaken a mobile telephone in the hand of the complainant for a knife. It is to be noted also that the jury had the opportunity of seeing the mobile telephone themselves. In the light of the judge's directions with regard to this, they were well able to assess whether or not the witnesses might have made a mistake.
26. We are unpersuaded that it was necessary for the judge to give any further direction with regard to burden and standard of proof when the jury posed their question.
27. Mr Stevens' final ground is in relation to the prosecution closing speech, which all are agreed was of excessive length in the light of the simplicity of this case. Mr Stevens relies on a decision of this Court in R v Mondon 52 Cr App R 695 where the appellant's conviction was quashed when prosecuting counsel had made a final speech in relation to an unrepresented defendant. Lord Justice Edmund Davies, in giving the judgment of the Court, drew attention to the impact which that speech might have had on the jury's determination of the issues in relation to fact which arose. It is to be noted that, in that case, the appellant had been unrepresented throughout her trial. It is also to be noted that that case was decided at a time when the proviso applied under the Criminal Appeal Act 1968, whereas the determinative test which this Court now has to apply is as to the safety of the conviction.
28. It is also to be noted that, even under the 1968 Act, it was by no means the inevitable consequence of prosecuting counsel having improperly and inappropriately made a final speech in relation to an unrepresented defendant, that the conviction would be quashed (see R v Pink 55 Cr App R 16).
29. Mr Corsellis, on behalf of the Crown, submits that the judge's refusal to adjourn for further legal representation is not susceptible to challenge. The trial was a simple one. The evidence was in no sense complex. The question of new representation arose after all the prosecution witnesses had been cross-examined. The issues in relation to whether a mobile telephone could have been wrongly identified as a knife was examined so far as the prosecution evidence was concerned. The appellant had himself a considerable experience of the adversarial court system in the light of his substantial record. The appellant was able to and did give. No defence witnesses were anticipated. The addition of the second count was not only irresistible in law but was a simple amendment to the indictment giving a simple description of a simple offence. Furthermore, the judge summed up the defence case and outlined the defence position with regard to all the relevant matters in a full and fair way.
30. Mr Corsellis submits, in relation to the failure to permit recall of the witnesses that, bearing in mind the cross-examination that there had been of the complainant and Miss Lacy as to the possibility of mistake, no useful purpose would have been served, whether the defendant had been represented by counsel or not. The jury were able to see the mobile telephone which was exhibited. The question which they asked related, he submits, to why the telephone had been produced so late and not whether it could be shown to witnesses.
31. So far as the second speech by prosecution counsel is concerned, Mr Corsellis conceded that, in this case, the prosecution should not have made a second speech, still less, one of the length of this speech. But he points out that there have been a considerable number of procedural and evidential changes since Mondon was decided, in particular in relation to inferences from silence, the lodging of a defence statement, the admissibility of evidence of bad character and the possibility of a different version being given in evidence from that which appears in the defence statement. Mr Corsellis points out that it was at a comparatively late stage in these proceedings that the appellant's legal representatives withdrew. The judge summed up the defence position entirely fully and fairly and the evidence supporting the conviction was, in any event, strong. Mr Corsellis refers to the incident taking place in daylight and being observed by two independent witnesses and the concessions made by the appellant in the course of his evidence that he had called the complainant a "nigger" were of high materiality. The complainant's evidence was corroborated, so far as the use of language was concerned, by both the independent witnesses and Miss Lacy corroborated the complainant's account that what was in the appellant's hand was a knife rather than a mobile telephone. Mr Corsellis also relied on Mr Addinsell's evidence of the removal of a suspicious item from the car before the appellant was arrested, the differences between the defence case statement and the defendant's evidence and the defendant's failure to comment in interview in relation to the various facts. Mr Corsellis submits that, on any view, the appellant's conviction was a safe one.
32. In our judgment, so far as the refusal to adjourn is concerned, in the circumstances of this case, as we have endeavoured to summarise them, the judge was fully entitled to reach the conclusion he did that, if this trial continued without the appellant being legally represented, there would be no unfairness to him, particularly having regard to the exploration which had already taken place of the issues in the case, in the course of cross-examination of the prosecution witnesses. As it seems to us, it is not shown that the judge wrongly exercised his discretion in that regard.
33. It is true that he did not discharge the legal aid certificate at that stage and he ought to have done. But there is nothing in the brief report of the decision of this Court in Harris which persuades us that a failure by the judge to discharge a legal aid certificate, that being necessarily a failure of a technical kind, must result in the quashing of a conviction if, thereafter, the trial continues with the defendant being unrepresented. The fundamental question will always be whether or not a fair trial continues to be possible and whether or not a fair trial in fact took place.
34. In our judgment, in this case, it did. The addition of the second count and the question raised by the jury did not, for the reasons given by Mr Corsellis, give rise to such complexity that the trial became unfair.
35. There is, as it seems to us, no substance in the complaint about the judge's failure to permit the prosecution witnesses to be recalled so they could be shown the mobile telephone.
36. So far as the prosecution's second speech is concerned, in the light of the procedural and evidential changes which have taken place since the decision of this Court in Mondon, we are by no means satisfied that in all cases, particularly when a defendant has been represented substantially throughout the trial and there are issues arising during the defence upon which the jury would be assisted by comment from prosecuting counsel, it is necessarily inappropriate for prosecuting counsel to make a second speech. But it is unnecessary in the present case to reach a conclusion with regard to that matter, because, for the reasons which we have already given, even the old authorities would not, as it seems to us, lead to the quashing of this conviction.
37. In our judgment there is no reason whatever for regarding this appellant's conviction as being unsafe by reason of any of the grounds ably advanced on his behalf by Mr Stevens. Accordingly, the appeal against conviction is dismissed.
38. So far as sentence is concerned, Mr Stevens points out that the incident, albeit frightening, was brief. The knife, albeit held, was not waved. There was no further threatening behaviour. Mr Stevens accepts that there is, so far as the appellant is concerned, the aggravating feature, not just of an extensive criminal record but the fact that he has been, on four previous occasions, convicted of using threatening words or behaviour, albeit that the last of those convictions was some years ago. Mr Stevens draws attention to the personal circumstances of the appellant, in that he was the full-time carer for parents who are both in poor health and he is a responsible single parent for the upbringing of a 14 year old girl. Mr Stevens drew attention to a new relationship which the appellant has formed since May 2005, which is having a positive effect upon him. All of those considerations we take into account.
39. These were, in our judgment, deeply unpleasant offences and, although the sentence of 21 months was a severe one, it is not one which, arguably, can be criticised as being manifestly excessive. Accordingly, as we have already indicated, the application for leave to appeal against sentence is refused.