England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		21 March 2006

THE LORD CHIEF JUSTICE:

Background:

1. On the night of 23rd to 24th October 2002 there was a serious mutiny at Her Majesty's Prison Lincoln. The appeal and the three applications before the court arise out of convictions recorded on 29 October 2004 at the end of a trial conducted by His Honour Judge Heath. The trial began on 24 August 2004 and lasted about thirteen weeks. At the end of the trial eight defendants were convicted, two acquitted, and the jury failed to reach a verdict in respect of the ninth.
2. The appellant Alan Brown was convicted unanimously on one count of prison mutiny, contrary to section 1(1) of the Prison Security Act 1992 (count 1), one count of unlawful wounding contrary to section 20 of the Offences against the Person Act 1861 (count 4), and one count of theft contrary to section 1(1) of the Theft Act 1968 (count 5). He was found not guilty of one count of assault occasioning actually bodily harm (count 6).
3. The applicant John Ritchie Lambert was convicted by a majority of 10:2 on count 1, and found not guilty on one count of unlawful wounding contrary to section 20 of the Offences against the Person Act 1861.
4. The applicant Lee James McGrath was convicted by a majority of 11:1 on count 1 and by a majority of 10:2 on count 2.
5. Brown was sentenced to nine years' imprisonment on count 1, four years' imprisonment concurrent on count 4, and twelve months' imprisonment concurrent on count 4. Those sentences totalling nine years' imprisonment were ordered to be served consecutively to the sentence he was already serving.
6. Lambert was sentenced to seven years' imprisonment on count 1.
7. McGrath was sentenced to nine years' imprisonment on count 1 and four years' imprisonment concurrent on count 2, a total of nine years' imprisonment.
8. Brown appeals against sentence with the leave of the single judge. He renews his application for leave to appeal against sentence following refusal by the single judge. Lambert and McGrath both renew applications for leave to appeal against sentence following refusal by the single judge.

The Mutiny

9. Her Majesty's Prison Lincoln ("the prison") is a Category B local prison which, at the time of the disturbance, held convicted and unconvicted adult male prisoners. There were six wings on which prisoners were housed, namely A, B, C, D, E and J Wings. D Wing, known as "the Block", was used for prisoners involved in disciplinary matters. E Wing was for vulnerable prisoners, and there was a prison hospital. A Wing consisted of four landings. The majority of the cells were of shared occupancy. There were a limited number of single occupancy cells. The wings were built around a central administrative control area known as "the Centre". This area had four levels connected by a spiral staircase. The Centre was accessible from the wings through lockable barred gates. Doors and gates within the prison were controlled by a system of locks and all cell doors and locks on every wing, including E Wing, were locked and unlocked by the same key.
10. At the time of the mutiny the appellant and the applicants were being lawfully detained, either as convicted prisoners serving a sentence or as persons on remand in the prison.
11. On the night of Wednesday 23 October 2002 a large-scale disturbance, amounting to what was, in effect, a riot, broke out at the prison and for several hours the authorities lost control of the entire prison. Full control was not regained until approximately 4.30am on 24 October. The incident was not spontaneous, but was planned in advance by a group of A Wing prisoners, who were responsible for starting the trouble. Once the mutiny was in progress, other prisoners joined in. The common purpose was the overthrow of lawful authority.
12. At approximately 8pm, during what was termed an "association period", a group of prisoners wearing home-made hoods and armed with makeshift weapons planned the mutiny, lured Prison Officer Oxley into cell A3/10 and attacked him with the leg of a bed. He suffered two violent blows to his head which caused profuse bleeding and unconsciousness. His keys and radio were taken and the keys used by the rioters to unlock prisoners and gain access to the other wings of the prison. The attack upon Oxley was a joint enterprise and it was carried out according to a plan. Within a short time the prison authorities were forced to withdraw to the gatehouse with the result that the remainder of the prison was left in the hands of the prisoners. There were numerous incidents of violence. The prison was extensively damaged and large amounts of prescription drugs were stolen and abused.
13. After several hours the disturbance became less violent. Prison officers in riot gear, known as "Tornado" teams, were assembled and the outbuildings and grounds of the prison were secured and control established landing by landing and then wing by wing. The teams first entered C Wing, restored order, extinguished a large fire and, from there, dismantelled barricades and moved into A and B Wings. A Wing was in ruins and many prisoners were found to be under the influence of drink. Syringes and empty blister packs of tablets were found floating in water. Weapons and balaclavas were recovered and the keys of Prison Officer Oxley were found in a lavatory in the prison hospital.
14. The disturbance at the prison was the worst prison mutiny since the riot at HM Prison Strangeways in Manchester in 1991. There were numerous fires. Compressed air cylinders were used to cause explosions. In order to regain control of the prison, 168 prison officers making up the "Tornado" team had to be called out. The total cost to the Prison Service was £2,744,160.23. The total cost to the National Health Service was approximately £43,300. One prisoner died as a result of an overdose of stolen drugs, and 35 people required hospital treatment.
15. A total of 26 men were charged with taking part in the prison mutiny and in the associated offences. To make the proceedings manageable the court ordered that there should be three trials. The appeal and applications before us arise out of the first trial.

Brown's Appeal against Conviction

16. The case against Brown can be summarised as follows. The prosecution alleged that after the plot had been hatched in cell A3/10, and Prison Officer Oxley attacked and his keys removed, Brown, who was subject to the "basic" regime of the prison as a result of disciplinary matters and who, accordingly, was locked in his cell during the "association" period, was let out of his cell and became the ringleader in the mutiny, which was by then already in progress. Nine fellow prisoners identified Brown, each describing a separate incident. One of these witnesses, Stuart Fallon, was the victim of the offence of unlawful wounding, of which Brown was charged and convicted under count 4. Fallon's shoes and watch constituted the property that Brown was convicted of stealing under count 5. Another of the witnesses, Daniel Bullivant, was the alleged victim of the offence of assault occasioning actual bodily harm, with which Brown was charged, but acquitted, under count 6.
17. We will now summarise the conduct alleged against Brown in a little more detail. Brown was alleged to have:

(a) led inmates in breaking into and looting the pharmacy on A Wing;

(b) opened the cells of inmates on B Wing and assaulted inmates on that wing, including Daniel Bullivant;

(c) organised inmates on C Wing to build barricades to resist any attempt by the authorities to regain control and assaulted inmates on C Wing who showed reluctance to join in the mutiny;

(d) led inmates in breaking into and looting the pharmacy between C and E Wings;

(e) led inmates into E Wing (the vulnerable prisoners wing) to attack those accused of sexual offences ("nonces");

(f) opened cell E2-001 and led an assault upon the inmate Stuart Fallon, until he produced his copy of his prosecution papers to show that he was accused of theft and not of a sexual offence; and

(g) looted Stuart Fallon's cell and stole a watch and boots which belonged to Fallon.

18. We shall consider the evidence of Bullivant a little later in this judgment, but we should at this stage sketch out the evidence given by the other inmates that implicated Brown. Courtnage noted that the appellant Brown appeared to be the leader of the mutineers, and that Brown gave orders to 20 or 30 prisoners to gather people together so that they could reach E Wing. Brown himself opened the gates to E Wing, then went on to unlock Fallon's cell, was the first to enter that cell and, together with others, was involved in attacking the occupant of the cell.
19. Gavin Jones saw Brown and another inmate visiting the cells of C Wing and telling inmates there that if they did not become involved they would be kicked. Subsequently, a prisoner was dragged from a cell on C2 landing by Brown and another prisoner and then severely beaten. Brown and his accomplice went to all the cells and told the occupants that if they did not become involved they would receive a kicking. Jones did not know the name of Brown's accomplice, but he was a stocky half-caste. The events which caused the damage lasted for about two hours, and Brown and the half-caste appeared to be the leaders. Jones did not see Brown on E Wing. He did not know Fallon by name, but saw a group of men (which did not include Brown) enter the cell and the occupant "staggered out". That evidence contrasts with the evidence of Courtnage which we have just summarised.
20. Michael Williams saw a prisoner unlocking the cell of Brown, who, in an attempt to rally support, shouted "With me, lads" and went with a few inmates towards the treatment room. Brown and others forced open the door with kicks and the use of a fire extinguisher, entered the treatment room and, in a scene of chaos, furniture was smashed and fires started.
21. Osborne, after hearing sounds of a mutiny, was released from his cell on C Wing by three prisoners, armed with table legs and with towels wrapped around their faces. On the walkway, he saw the appellant Brown at the front of a group of prisoners who were moving in the direction of E Wing and shouting about killing people on that wing. The group chanted threats, which included remarks such as "Fucking nonces", and one person threw carbon dioxide cylinders in the wing which caused two large explosions and fires. Osborne believed that Brown carried a table leg or similar weapon.
22. Daniel Puncheon had his cell in C Wing unlocked and went onto the landing. There he witnessed a scene of chaos in which Brown was particularly prominent. He believed that Brown was a ringleader because he acted "like an army sergeant major ordering recruits to do certain things". By this time drugs had been distributed and Brown wanted the inmates to go to C2 landing and barricade the stairwells. Puncheon approached Brown and asked for a light when Brown was distributing drugs. Later, Brown shouted for everyone to go to A Wing in order to erect a stronghold that would prevent prison officers from attacking the rioters.
23. nderhill saw Brown, who appeared to be high on drugs, together with another prisoner named McCabe, carrying out a very vicious assault on two inmates who did not wish to become involved in the riot.
24. Fallon was in his cell in E2/1, on the wing reserved for vulnerable prisoners, when rioters moved into that wing shouting, "Nonces, we're coming to get you". His cell was unlocked and Brown led a group of about five prisoners into it. Fallon was ordered to produce his depositions and while searching for them was hit over the head and wounded by one of Brown's companions, and also hit with a fire extinguisher by a coloured prisoner. Fallon may, temporarily, have lost consciousness. Brown told him to "stop playing dead". When the depositions were found, the remark was made, "He's in for theft, he's not a nonce". The cell was then ransacked by the rioters and Brown took away a pair of Fallon's "Lacoste" shoes.
25. Steven Butler saw Brown, with whom he had previously shared a cell, on C Wing organising and gathering people into groups and generally shepherding them in a certain direction. Brown carried a table leg and said, "We are not here to argue among ourselves. Stick together and that way the guards won't get in". He was obeyed by the inmates and at one stage Brown broke up a fight between two prisoners with the words, "Don't fight yourselves. If you want to fight, fight the prison officers".
26. Brown's account of events given in interview and in evidence at the trial can be summarised as follows. He had not been involved in any planning of events; had been assaulted by four unknown men once his cell door was opened and sustained injuries to his elbow and head; had decamped and injured his back whilst doing so; had not broken into the pharmacy, but had consumed a substantial amount of drugs stolen form it; had gone onto other wings, but had not caused any damage or inflicted any violence. He denied all the specific allegations made against him but admitted taking the boots and watch, which were the subject of the theft count, from an unoccupied cell on B Wing.
27. Four discrete grounds for appealing against conviction have been advanced by Mr James Beck on behalf of Brown. We shall consider each in turn.

Disclosure in relation to Nicholas Underhill (Ground 1)

28. Underhill was one of the nine inmates who gave evidence against Brown. He described seeing a tall, white skinhead with a gold tooth and another man called McCabe carrying out a vicious assault on two inmates of C Wing because they did not want to become involved in the mutiny. He subsequently identified Brown as the man with the gold tooth.
29. Underhill had a lengthy criminal record, apart from the offending which had led to his imprisonment in Lincoln. This included a conviction at Birmingham Crown Court in 2002 for perverting the course of justice, for which he received 15 months' imprisonment. This fact was drawn to the jury's attention in the judge's summing-up. The details of the offence were not. These were that Underhill had falsely told the police that a man against whom he had a grudge had confessed to having committed a burglary in the course of which he had left a woman for dead.
30. Mr Beck's complaint is that the prosecution did not disclose to the defence the details of the offence in question. Had they done so, these would have provided valuable material for cross-examining Underhill. A schedule of unused material, which was served on the defence, included as item 8 on the first page the following entry: "Details of allegation of perverting the course of justice by Richard Underhill and details of conversation with the same". This document gave the details of the offence to which we have referred. The document was available for inspection and on a number of occasions those representing Brown were invited to inspect the unused material. They did not do so.
31. Mr Beck told us that his junior read the schedule of unused material. Mr Beck submitted that this was not sufficient notice to the defence of material as important as the details of the offence in question. It is not quite clear to us what more it was suggested that the prosecution should have done. If it is suggested that the prosecution was under a duty specifically to draw this material to the attention of the defence, we do not agree. The reference in the schedule was adequate notice of the availability of material that might be of assistance in cross-examination.
32. In the event Underhill was cross-examined about the fact of his previous conviction but not the detail of it. We do not believe that had he been cross-examined on the detail this would have been likely to affect the jury's evaluation of the very specific evidence that he gave about Brown's involvement in the mutiny.
33. For these reasons we have concluded that there is no merit in this ground of appeal.

Subsequent events in relation to Underhill's evidence (Ground 2)

34. Mr Beck has another string to his bow in respect of Underhill's evidence. Part of the evidence that Underhill had given to the police incriminated an inmate called Nix. He and another inmate called Kent were defendants in the second trial. Those acting for Kent discovered that evidence given by Underhill of observations that he had made of Nix could not be true because there was no line of sight from the position in which Underhill had purported to be standing to the position where he alleged Nix had been when he observed him. A prison official, who was with Kent's lawyers when this discovery was made, reported the problem with Underhill's evidence to the police. Underhill was then interviewed about this and altered his evidence as to his vantage point, claiming to have been mistaken as to this and denying that he had lied when giving his earlier statement.
35. In these circumstances Judge Heath ruled that Underhill's evidence should be excluded from the second, and subsequently, the third, trial. The reason for this was that, in the circumstances described above, Underhill should not have been further interviewed by the Police. What had occurred had robbed the defence of the surprise element in potentially cogent cross-examination and accordingly fairness required Underhill's evidence to be excluded.
36. Perhaps somewhat generously we gave Mr Beck leave to rely upon these events as relevant factual material coming to light after the first trial. The reality is, of course, that it would have been open to those acting for Brown to have conducted the same analysis of Underhill's evidence as was conducted by those acting for Kent and to make use of what they discovered in cross-examination.
37. If subsequent events show that a witness lied at a previous trial, that can, depending upon the particular facts, be a reason for allowing an appeal by a defendant in the previous trial. That is not this case. The judge shut out Underhill's evidence at the second and third trials because the defence had unfairly been deprived of an opportunity for cross-examination, not because he had lied to the police. In the chaos that raged in Lincoln Prison at the material time there was, as Mr Beck conceded, plenty of scope for a witness to make mistakes of detail without any dishonesty being involved.
38. Nothing that happened after the first trial threw doubt on that part of Underhill's evidence which related to Brown.
39. For these reasons we hold that there is no merit in this ground of appeal.

Failure to exclude the evidence of Bullivant (Ground 3)

40. Before the prosecution called Bullivant to give evidence, Mr Beck submitted that his evidence should be excluded on the ground that to admit it would be an abuse of process or unfair, so that it should be excluded under section 78 of the Police and Criminal Evidence Act. The ground of these submissions was that other evidence available to the prosecution was so severely in conflict with the evidence of Bullivant as to undermine the latter. The judge rejected this submission. Mr Beck contends that he was wrong to do so.
41. Bullivant's first witness statement dated 6 November 2002 included the following material averments. In the course of the mutiny Brown struck him with a table leg on the right side of his forehead, knocking him out and causing swelling and bruising. He woke up in the hospital wing of the prison on 24 October. Doctors asked him whether he had taken any drugs and he denied having done so. He remained in the hospital wing until 28 October, when he was taken back to B Wing.
42. This account did not accord with the hospital records. These record that he was found in a cell on A Wing showing obvious signs of substance abuse. The entry for 25 October makes no mention of a head injury. Nor does the entry for 30 October though it does record that Bullivant complained of being hit on the left side of the lower back one week earlier.
43. The witness statement of Dr Akande, a prison doctor, disclosed as part of the unused material, stated that he examined Bullivant on 23 and 25 October, found no injuries, nor received any complaint from Bullivant of any injury. On 30 October, however, Bullivant complained of having been hit on the left side of his lower back a week earlier. On examination no symptom of such a blow could be found.
44. Because of these apparent discrepancies with his evidence, Bullivant was interviewed again. He said that he had mentioned his head injury to a police officer with a video camera in the hospital wing on 24 October. It proved that he had in fact mentioned the head injury to a police officer with a video camera, but this was on 29 October and in B Wing, not the hospital wing.
45. Mr Beck submitted to the judge that Bullivant's evidence was so discredited by the medical evidence that it would be an abuse of process and grossly unfair for the Crown to call him. The judge, who had seen the video recording taken on 29 October, ruled as follows:

"The Crown are prepared to tender Dr Akande, and in that way, anyone who wishes to cross-examine him can do so. Mr Aspden submits that it is for the tribunal of facts, appraised of all the relevant material, to assess issues of weight. They are entitled to consider whether the evidence of Bullivant, taken with the video may demonstrate that Dr Akande has made a mistake in failing to notice any actual bodily harm or injury to the head area. In my judgment, there is no abuse in this case if the Crown called Daniel Bullivant to give his evidence and tender the doctor for cross-examination.

The medical notes can be cross-examined in, and the jury can consider all of the evidence and come to their own conclusion as to whether the injury alleged on count 6 is made out. The jury, as I say, will be able to hear all of the evidence and come to its own conclusion. It is, in my judgment, not unfair for this evidence to be admitted. I note that the disclosure was made somewhat late, but the fact of the matter is that relevant material is now available to assist the defence."

After considering R v Cairns [2002] EWCA Crim 2838; [2003] 1 Cr App R 33, he concluded:

"In this case, the jury may be assisted by the evidence of Mr Bullivant as to whether Mr Brown played a part in the riot, and it seems to me that it is not an abuse and not unfair to admit his evidence, and it will be admitted, subject of course to the defence having the opportunity of cross-examining Dr Akande in due course."

46. In the event, not only was Bullivant called by the prosecution, but Dr Akande was also called and gave evidence in accordance with his witness statement. This was two weeks or so after Bullivant had given evidence. Ultimately, the jury acquitted Brown of the charge of assaulting Bullivant.
47. In these circumstances, Mr Beck's complaint was reduced to a contention that Dr Akande should have been called to give evidence immediately after Bullivant. There is no merit in this complaint. Bullivant was cross-examined on the apparent discrepancy between his evidence and the medical evidence. By calling Dr Akande the prosecution put his evidence before the jury and enabled counsel to examine him about Bullivant's alleged injury. The prosecution were required to do no more than this. The fact that Brown was acquitted of the charge of assaulting Bullivant shows that nothing that occurred caused him any prejudice.
48. For this reason this ground of appeal is rejected.

Rejection of the application to discharge the jury (Ground 4)

49. On 5 October 2004 Mr Beck applied to the judge to have the jury discharged in relation to giving verdicts in respect of Brown. The ground of this application was that on 21 September Brown had been asked by Mr Aspden to answer questions in cross-examination which were prejudicial and improper. Mr Beck made no objection to these questions at the time and approximately two weeks elapsed before he applied for the jury to be discharged in relation to his client. This is regrettable. If the questions were open to objection, Mr Beck should have made the objections at the time. Nonetheless, if the questions should not have been asked and rendered the trial unfair as far as Brown was concerned, it was right for the judge to consider the application made, however belated. He did so, and rejected it. Mr Beck submits that he was wrong to do so.
50. We take our account of what occurred on 21 September from the judge's ruling. He said:

"On 20th September 2004, in examination-in-chief Mr Brown told the jury about his criminal record. He told the jury that he had a number of convictions, that he had 22 convictions for 46 offences, having sustained his first conviction on 11 May 1992 and his last conviction on 3 October 2002, and that most were for dishonesty."

.... On 19 September 1996, at Nottingham Magistrates' Court, he said that he had received a sentence of three months' custody for assaulting police, concurrent to a six month sentence for non-dwelling house burglary; [that] at Nottingham Magistrates' Court in 1998, he had been convicted of two charges of assaulting a police officer. In relation to each, he sustained one month's imprisonment, both concurrent, and concurrent to a sentence for theft by shoplifting. Then on 15 July 1998, at a magistrates' court in London, he had been convicted of assaulting a police constable and was sent to prison for fourteen days.

....

During cross-examination on 20 September, Mr Brown told the jury that he was a peace-loving man and would not engage in violence, and that had he been involved in violence at Lincoln Prison on 23 october 2002, he would have remembered it."

51. On 21 September, in the absence of the jury Mr Aspden submitted that Brown had put his character in issue and that it was open to him to cross-examine on it. Mr Beck said that this was not disputed. The judge gave leave to Mr Aspden to proceed. Mr Aspden then subjected Brown to a sustained period of cross-examination about an incident alleged to have occurred the previous morning. He put to Mr Brown that he and two other inmates had attacked an Asian prisoner called Karashan and that Brown had injured his knuckles in the course of so doing. As a result of this attack, Brown was to be subject to a prison adjudication. Brown accepted that there was to be an adjudication, but denied the allegation made against him, contending that he had injured his knuckles punching a locker door.
52. Mr Aspden then asked him whether he was aware that the police had been brought in to investigate the matter. At that point Mr Beck intervened. After the jury had withdrawn, he said that he had made no objections to the questions thus far, but that, having had Brown's response, it was not appropriate to probe the state of the inquiry into the incident. Mr Aspden indicated that he would take the matter no further and the trial proceeded.
53. Mr Beck regaled the judge with a body of case authority dealing with the procedure that should be followed before asking a defendant questions about alleged previous misconduct and with the approach that should be adopted to any attempt to ask the appellant about outstanding criminal charges. He invited us to have regard to the same authorities. After considering those authorities at some length the judge made the following ruling:

"In my judgment, Mr Aspden should have canvassed with me what he proposed to put to Mr Brown on 21 September and he should have notified Mr Beck, either in or out of court, so that Mr Beck could make such admissions as he thought appropriate in relation to the matter, and then I could have exercised my discretion. The situation was highly unusual. The material which had come into Mr Aspden's hands was unusual. It was at that stage simply an accusation. It had not been tried; it had not been tested. It may be -- I do not know -- that Mr Brown had a good defence to any accusation which was made against him.

It was, in my judgment, remiss of Mr Aspden not to have taken the course which I have indicated. It would have given me an opportunity to exercise my discretion after hearing of the nature of the material and hearing submissions from both Mr Beck and Mr Aspden as to whether I should exercise my discretion to allow the questioning to be put.

It is an unhelpful exercise to look back now with the benefit of hindsight and knowing what I now know to say what course I would have taken had I been invited to exercise my discretion in favour of the prosecution. I do not know what I would have done. ....

....

What is to be done? On behalf of Mr Brown, Mr Beck submits that Mr Brown cannot have a fair trial because the material introduced by Mr Aspden in cross-examination has caused a prejudice so grave to Mr Brown that the position is not capable of rectification by directions to the jury. He submits that the only course of action is to discharge the jury. I do not rehearse again the case of Smith but I remind myself of it.

In my judgment, this case is considerably different from Smith. Mr Brown has put in as part of his examination-in-chief his convictions for violence, which are three of assaulting a police officer. In my judgment, he can, notwithstanding Mr Aspden's cross-examination, which was simply about an accusation and a very recent accusation at that, have a fair trial. I can give the jury an appropriate direction such that they should completely disregard that part of the evidence, because it is entirely inconclusive. It related to an allegation and no more than that and I shall not go into detail in the course of my review of the evidence about that exchange between Mr Aspden and Mr Brown. I shall tell the jury, as I say, that they should disregard it entirely.

So the application to discharge the jury from giving verdicts in the case of Mr Brown is refused."

54. In the course of his summing-up to the jury the judge dealt with this matter precisely as in his ruling he said he intended to do.
55. For a long time our criminal procedure has been encumbered, and we use that word advisedly, with a mass of jurisprudence and legislation dealing with what can and cannot be put before the jury and what should be said to the jury about the evidence put before them. Much of this is designed to assist the jury in drawing conclusions from the evidence which are essentially matters of common sense. Sometimes the relevant rules are, or were, designed to prevent the jury from seeing relevant material, or drawing logical conclusions from such material, because they could not be trusted to accord to the material no more weight than it deserved.
56. In no area is this better demonstrated than that which relates to a defendant's bad character. For a long time evidence of and questions in relation to this were excluded, save in special circumstances. When such evidence did go before the jury, the judge was required to give directions in relation to it which, in some respects, were an affront to common sense. The position has been rendered more logical, if not much less complex, by the provisions of sections 101 to 108 of the Criminal Justice Act 2003.
57. The Judicial Studies Board publishes specimen directions which judges are advised to use, many of which are no more than propositions of common sense, albeit propositions that may be more self-evident to those accustomed to the evaluation of evidence than to juries approaching such a task for the first time. Sometimes in the conduct of a trial, particularly one as lengthy as that with which we are concerned, as a result of an oversight on the part of counsel and the judge, or the judge alone, a direction is omitted or material is placed before the jury which should not have been. It is wrong to start with the premise that such an oversight vitiates the trial. The question must always be whether, when viewed in the context of the trial as a whole, the safety of any verdict which has been given or is to be given, has been put in jeopardy or the fairness of the trial has otherwise been prejudiced to an extent that calls for the discharge of the jury or the quashing of a verdict.
58. The law to which the judge was referred (and to which we were invited to have regard) is complex, and much of it relates to the position that prevailed before the 2003 Act. We can understand why the judge found it difficult to decide whether or not he would have allowed the cross-examination that Mr Aspden conducted had the propriety of this been canvassed before Mr Aspden launched upon it, although our provisional view is that, had the judge allowed the cross-examination, he could not have been criticised. The judge, however, adopted the sensible course of considering whether, on the assumption that the questioning should not have been permitted, this was so prejudicial to Brown that the jury should be discharged in relation to him or whether any potential prejudice could be met by an appropriate direction to the jury. He reached the latter conclusion.
59. We do not consider that the cross-examination of Brown to which objection is made could have had any material effect on the jury's verdict and, had there been any risk of this, it was allayed by the judge's direction. He was correct to reject the application to discharge the jury.
60. For these reasons we reject the fourth ground of appeal.
61. We would add this. Even had there been merit in any of the grounds of appeal advanced, the evidence of other witnesses that we have summarised at the beginning of this judgment was so compelling that the safety of Brown's conviction could not have been put in doubt. His appeal against conviction is dismissed.

The applications for leave to appeal against sentence

62. The sentences that were imposed by the judge were swingeing and he had little case precedent to guide him. In these circumstances we consider that there is good reason to give leave to appeal in the case of each applicant, and we do so, together with orders for the representation of the appellants by junior counsel.
63. The judge adopted a consistent starting point for the heaviest sentences that he imposed. For those whose conduct was aggravated by being instigators or ringleaders of the mutiny, or by the commission of other offences of violence for which concurrent sentences were imposed, he imposed a sentence of nine years' imprisonment, to run consecutively to any sentence that they were serving. He worked down from there, giving full credit for pleas of guilty or other mitigating circumstances.
64. The appellants Brown and McGrath received nine year sentences. In relation to them two questions arise: (1) was the starting point of nine years too high? (2) does each qualify for the most severe of the sentencing range?
65. So far as the first question is concerned, counsel for each appellant urged that, having regard to the fact that ten years' imprisonment was the maximum for count 1, a sentence of nine years was too high. Mr Howatt for McGrath submitted that such a sentence left no scope for reflecting factors that might have made the mutiny more serious, such as hostage taking, violent resistance or a much longer period of revolt.
66. Before imposing each sentence the judge made the following summary of the facts:

"I have presided over this trial for thirteen weeks and during that time I have seen a good many people give evidence and I have heard them give evidence and I have seen and heard you give your evidence and I have had an opportunity to consider the evidence which I have heard in this case.

On the night of 23 October, just over two years ago, a mutiny took place at Lincoln Prison. The disturbance as on a very large scale indeed. Control of the prison was lost by the authorities for over eight hours, that is to say, the whole prison was lost. It was the worst disturbance in a prison since that at Strangeways in Manchester in 1991.

A substantial amount of damage was caused. A Wing where the incident began, was trashed. Furniture fixtures and fittings were smashed in a wanton orgy of destruction. The videos and photographs of the damage caused illustrate the scale of the destruction. It has cost the taxpayer about £2.75 million to repair the damage. Fires were started, explosions caused by the ignition of oxygen cylinders and parts of the prison were flooded."

The judge was uniquely placed to evaluate the seriousness of this mutiny. It was very serious indeed. We consider that he was justified in imposing nine year sentences upon those whose participation in the mutiny was aggravated. In reality the maximum sentence available to him where a defendant was convicted of more than one offence was the aggregate of the two maxima, not ten years.

67. We turn to the particular appellants. When sentencing Brown the judge said:

"Once the mutiny started and you were let out of your cell, you joined in with gusto and immediately became a ringleader. You armed yourself with a table leg. You were giving orders to gather people together so that they could get on to E Wing. You opened the gates on to E Wing. You gathered twenty or thirty around you. You went round cells with another threatening that if people did not get involved they would get a kicking and as soon as you were let out of your cell you cried, 'With me, lads', trying to rally support. You invaded Fallon's cell. You and others forced the treatment room door on A2 and went inside and you were urging people to go on to the 2's and barricade the stairwell. You wanted people to put up a stronghold, and you participated in assaults on lads who did not want to get involved.

So far as Fallon is concerned, you were involved in an attack upon him, with others, who, with you, entered his cell on E Wing, where he was for protection [as] being a vulnerable prisoner, and you all considered Fallon eligible for, and he was subjected to, physical violence unless and until he was able to satisfy you by the production of his court papers that he was not a sex offender and he was subjected to blows to the head which rendered him for a time unconscious and he was wounded and you helped yourself to his Lacoste boots."

These remarks make it plain that Brown's offence of prison mutiny was seriously aggravated. He was properly sentenced to nine years' imprisonment. His appeal against sentence is dismissed.

68. When sentencing McGrath, the judge described his participation as follows:

"This mutiny did not occur spontaneously. It was planned. A group of ringleaders planned it and you were one of those who planned it. You were involved in the start of the mutiny. You were a recruiter, along with J T Lambert, and, as others joined in, it developed into complete lawlessness. You were one of a number who assembled in cell A3/10 to plan how the mutiny was to start, and what you wanted to do and how far you cold take it, and the plan was to lure a prison officer into the cell, get his keys and radio and open other inmates' cells so that the prisoners would outnumber the prison officers. The 4's landing was to be opened up first because it was located furthest away from where prison officers would be situated, and once a prison officer was lured into the cell the plan was that Westwood, the biggest prisoner in the cell, would stand on a bed and cosh that prison officer with a bed leg. Others were to help in stopping the prison officer from pressing his panic button and getting him to the floor where he was to have his radio removed and prisoners were present in the cell, tooled up, wearing balaclavas which were home-made. The 4's landing was planned to be opened and the plan was that all hell was to break loose and you were a party to that plan, and that plan was put into effect.

Prison Officer Oxley was unfortunate enough to be the officer who was in the wrong place at the wrong time. By common consent, he was a thoroughly decent and well-liked officer who was helpful to all prisoners. He was heavily coshed by Westwood, who was chosen for this task, as I have indicated, because he was the biggest prisoner in the cell. Mr Oxley received two nasty gashes to his head and for a time he was unconscious. It was for him a terrifying experience. He suffered substantially and continues to suffer substantially as a result of that experience.

This attack upon Mr Oxley was a joint enterprise. It was planned by those in cell A3/10, including you, and carried out according to plan, and those convicted of that assault upon him are as responsible for it as he who struck the blows. All hell was planned to break loose and all hell did break loose and for any well-behaved prisoner who did not want to become involved, that was also a terrifying experience that night."

Once again it is pain that McGrath qualified for a nine year sentence by reason of his role in planning the mutiny and being party to the attack on Mr Oxley. His appeal against sentence is dismissed.

69. John Ritchie Lambert was sentenced to seven years' imprisonment. He was convicted on the single count of mutiny. He was acquitted of the assault on Mr Oxley and thus, inferentially, of being party to the planning of the mutiny. Miss Munro attacked his sentence of seven years with eloquence and vigour. She submitted that a reduction of more than two years was called for in order properly to distinguish his participation from that of those whose offending was aggravated. She further submitted that his sentence was too far above those imposed at or before the second trial on those who pleaded guilty, being four years or less.
70. Before passing sentence on Lambert, the judge said:

"I note the jury's verdict in relation to count 2 so far as you are concerned. I have to sentence you on count 1. The evidence is that in the doctor's room you smashed a window with a chair and you admitted your involvement in this mutiny to Elaine Nibbs, whose evidence was patently true. She made a contemporaneous note of what you said to her. You said to her, whilst you were at Ryehill Prison, that you could get enough prisoners on your side to make that prison lose control and the inmates could take over. You told her you had done it before and it would be easier at Ryehill because they had less officers and you said to her, 'I know you don't believe me but I'm good at getting people worked up'."

The judge appears to have accepted that Lambert's participation was as he described it to Police Officer Nibbs. He was entitled to do so. The appellant received a severe sentence, but not one with which it would be proper for us to interfere. His appeal also is dismissed.

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