England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		25th May 2007

1. MR JUSTICE IRWIN: On 5th June 2006, at the Crown Court in Birmingham before His Honour Judge Gregory, Colin Hester was convicted of blackmail. Later, (on 31st July 2006), he pleaded to misconduct in public office, charges appearing in a separate indictment. On 6th June 2006 before the same court Andrew McKray was convicted of wounding with intent. On 8th June McKray was sentenced to 54 months' imprisonment, less 362 days spent on remand. On 31st July 2006 the appellant Hester was sentenced to 54 months' imprisonment on count 1 and six months' concurrent on other counts to be served consecutively to the 54 months, a total of 60 months' imprisonment less the period spent on remand. Further counts of misconduct in public office against Hester were ordered to lie on the file on the usual terms and the counts of false imprisonment and blackmail against McKray were ordered to lie on the file in the usual terms.
2. Both argue their grounds by leave of the single judge.
3. The facts of this offending were as follows. Thomas Scragg was a wealthy businessman. He ran a business with another man called Phillips, providing payroll services to the construction industry. On 16th May 2005 he agreed to attend a business meeting in Coventry with two associates. He drove to Coventry with a man called Fiaz and was given directions on a mobile phone to go to the Prince William Henry public house. They arrived at the Prince William Henry at approximately 3.00 p.m. and shortly afterwards were attacked by a group of men who came into the public house. Mr Scragg was falsely imprisoned in an upstairs room at the pub. He was held against his will for several hours, during which time he was beaten, wounded and severely injured with a machete. He was told he would only be released upon payment of a ransom. Contact was made with Mr Phillips to demand the ransom money and he was directed to Coventry police station where he handed over £72,000 to Colin Hester, who was at that stage a serving police officer, in order to secure Mr Scragg's release. Mr McKray was arrested and charged with false imprisonment and blackmail, as well as the wounding with intent of Thomas Scragg. Hester was arrested and charged with false imprisonment of Scragg and the blackmail of Phillips.
4. We deal first with the grounds of appeal advanced by Hester, in the order in which they appear. The first ground is that it is suggested the learned judge was wrong to permit evidence to be admitted before the jury of the appellant Hester's misuse of the Police National Computer. As we have observed, Hester had also been charged with misconduct in a public office, he being a serving police officer at the time, by making unwarranted and unauthorised use of the Police National Computer. On 26th April he pleaded guilty to two counts of such misconduct.
5. The first improper check related to a Mercedes motor car and was carried out on 29th July 2004. His account for that was that he was pressurised to carry out that check by Steven Houston, an uncle of the defendant David Houston, from whom he had previously borrowed money. He passed the information on to Steven Houston in a phone call on the day the check was performed. In his police interview he said initially that he could not remember carrying out the check and that the registration number meant nothing to him.
6. The second key improper check was on 7th April 2005 when Hester checked the details of another vehicle, a Cherokee vehicle, registered to another man, Weir. At 22 minutes past 5 on that day he sent a text message to a man called James Doe, at Doe's request, setting out the information he had obtained. Hester accepted that he had initially lied in his police interview about carrying out this check, because he had given a false reason.
7. One of the men to whom he passed information and for whom he performed the check, being Steven Houston, was a close relative, as we have said, to a defendant in this case, but was not himself alleged to be directly involved in this offending. The other was James Doe, also known as Tony, according to the Crown. The appellant Hester asserted that Doe and Tony were different people. However it was the Crown case that they were the same. The appellant also acknowledged that Tony was the man to whom he passed the package which in fact contained the ransom money for Scragg, the victim of the blackmail. Mr Hester's account was that Tony was an informant to whom he was giving papers innocently and as a favour. The Crown's application, therefore, was that the appellant was shown by these acts, that is to say the improper use of the PNC, to have a corrupt relationship with Houston and with James Doe, alias Tony, that he was well aware of Tony's identity and that this demonstrated the true nature of his relationship with Tony. It is today conceded by Mr Germain for Hester that, in relation to the acts that connected him with Tony/James Doe, this evidence was properly admitted.
8. However, the point is maintained on behalf of the appellant in relation to the other acts of misuse of the computer, particularly as relating to Houston, that they should not have been admitted. The appellant suggests that the judge was wrong to rule that this was "important evidence in the case". That is not one of the gateways under section 101. If he meant "important explanatory evidence" that was wrong. That was not the Crown's argument. It is said that this is not relevant to the other evidence in the case, nor substantial evidence for understanding the case as a whole. It is said that it is inconsistent with an earlier ruling that the counts of misconduct in public office were wrongly joined originally on the same indictment with the more serious offending of blackmail and wounding, and that there had been a ruling from the judge himself ordering that they should be placed on separate indictments. It is said that the practical effect of the judge's ruling viz-a-viz the indictment meant that whether the appellant had or had not a propensity to commit offences of misconduct in a public office was legally irrelevant to the issue whether the appellant committed the other offences in the indictment with which he was charged. It is therefore submitted that even the alleged misuse of the PNC by the appellant at the behest of the man James Doe, who was unarguably involved in the offence of false imprisonment, was inadmissible under gateway (d). That point, as we have observed, has been abandoned.
9. Finally, it is submitted on behalf of Hester that the remaining ground for admitting this evidence was not made out, that is to say that it was essential evidence to rebut the assertion made in interview by the appellant that he, Hester, would not jeopardise his career as a police officer, which he had striven hard to achieve, by becoming knowingly involved in a criminal enterprise involving false imprisonment and blackmail. The appellant says it is important to look at the provisions of sections 105 and 105(3). The defence would have agreed to the deletion of all such assertions in the appellant's interview. The appellant could not then be treated as responsible for making such assertions, and gateway (f) would have been closed.
10. We reject the appellant's submissions in relation to James Doe. That point is misconceived. There are many examples of previous convictions and bad character or misconduct which could not properly be joined with matters subsequently to the trial but are properly admitted in evidence. The considerations are different. We consider that this evidence was properly admitted under section 101(1)(d). The matter in issue, and crucially in issue for the appellant Hester, was his relationship with Tony/James Doe: was it innocent or corrupt? We consider it could also have been admitted, and was properly admitted, to correct a false impression. This was positively advanced in Hester's interview. The Crown were entitled to rely upon that so as to show that here was a man who would falsely project himself as an innocent and uncorrupt police officer, who would not jeopardise his position, when in fact he had already breached the rules and committed serious disciplinary offending for this group of people.
11. We regard this evidence as properly admitted. We have considered whether it was unfair to admit it under all the considerations which arise in the Act. We do not consider it was so unfair and we reject this ground of appeal.
12. We turn to ground 2. This relates to the admission of some but not all of the convictions of a Crown witness Mr Goodson. Goodson was a grill chef at the Prince William Henry. His account was that he knew Colin Hester to be at the pub, although he knew him under the name of Chris. He was present on 16th May in the pub and his account was that he saw the appellant there. By his account, when the appellant Hester came in there was a great shout in the pub. In his witness statement he puts it "... the policeman Chris came into the pub. He came in alone. He burnt a piece of paper in an ashtray. Then he was seen by the others as he walked into the bar area. The group got all excited and a shout went up." He subsequently, on an identification procedure, picked out the appellant Hester as the policeman Chris.
13. This witness was crucial in the case against Hester. That is not in issue between the sides. He has convictions for offences of dishonesty, both deception convictions and burglary convictions. The appellant applied to the learned judge that all of those convictions should be put before the jury. The Crown resisted in respect of convictions other than those consisting of deception.
14. The learned judge in his ruling said this:

"Previous convictions the Court of Appeal say, whether for offences or dishonesty or otherwise, are only likely to be capable of showing a propensity to be truthful or untruthful where truthfulness is in issue. Now, that seems to me to cover the convictions at first blush at least for deception offences but not the convictions for burglary or other criminal behaviour. I can well understand that in the broad sense of the meaning a man who is a burglar, particularly of someone else's home, is not a credible man and one might think that such behaviour goes to his credibility. But it seems to me that I am obliged to apply the law in accordance with the statute as interpreted by the Court of Appeal and I therefore reach the conclusion that this application, subject to obtaining further information about the nature of the convictions, is to be allowed but only insofar as those two convictions are concerned."

by which the learned judge meant the convictions for deception, not for burglary.

15. It is clear that in approaching this question the learned judge was considering the ruling of the Court of Appeal in Hanson [2005] EWCA Crim 824, 2 Cr App R 21. Hanson bears on the question of admission of convictions or other material relevant to truthfulness pursuant to section 101(1)(d) as expounded by section 103(1)(d) of the Criminal Justice Act 2003; in other words, convictions in relation to defendants. This issue fell to be considered under section 100 of the Act; that is to say, bad character in relation to non-defendants. The question is governed by section 100(1)(b) rather than 101(1)(d). The wording of section 100, which is relevant, is:

"(1)(b) it has substantial probative value in relation to a matter which --

(i) is a matter in issue in the proceedings."

This is narrower wording and different wording from that under consideration in Hanson.

16. However, it has clearly been established that section 101(1)(b) must be read on the basis that credit worthiness of witnesses may well be "a matter in issue in the proceedings", may well be of "substantial importance", and the question is whether the matters sought to be put have "substantial probative value". Those phrases are all extracted from the relevant section. The authority for that consideration of the section is the case of S (Andrew) [2006] EWCA Crim 1303. There are other authorities helpfully digested in the current edition of Archbold at paragraph 13-15.
17. We are of the view that where credibility is in issue in relation to an important witness, then the test may often be passed and convictions of dishonesty may very well be brought to bear on the credibility of the witness, whether or not the offence involved untruthfulness.
18. In this instance we do not conclude that it was unfair, or necessarily unfair, to admit only the convictions on these facts. But even had all of the convictions been admitted, as they might properly have been, we do not conclude that this impinges on the safety of the conviction. The jury knew that this witness was a dishonest man. They knew he had been convicted specifically of offences of deception and that he could not be relied upon necessarily to be a honest witness. They had to assess his evidence with that knowledge. In our judgment, the incremental help to them of knowing that he was also a burglar was so limited that it could not be said to disturb the safety of the conviction. That ground is also rejected.
19. The third ground advanced by Mr Germain for the appellant Hester is that the submission he made of no case to answer on the count of blackmail should have been accepted. He puts it as follows, and we draw this from paragraph 5 of the written skeleton argument submitted to us:

"The offence of blackmail consists in the making of an unwarranted demand with menaces. The evidence for the prosecution was that the demand for money to secure the release of Mr Scragg was made hours before the appellant became involved in the criminal enterprise. The learned judge in rejecting the submission of 'no case to answer' held that the appellant by his actions encouraged those holding Mr Scragg to retain hold of him until the money had been paid. Volume III [of the transcript] page 5H. The learned judge also stated that it was only because the threats were continuing that Mr Phillips handed over the ransom. Ibid. page 6F to G. Whilst it is accepted that those two observations were correct, it is submitted that the appellant's participation occurred consequent to the commission of the offence of blackmail."

20. In our judgment this argument is quite untenable. The offence may be complete before the engagement of Mr Hester, in the sense that all of the ingredients of blackmail were present. That is a separate question from whether that offence of blackmail continues for a further period of time during which another person joins in. Blackmail continues until the demand ceases and the threat is withdrawn. The demand in this case did not cease until payment. The threat was not withdrawn until the payment had been made. That is the essence of blackmail in many cases. It is often a continuing offence. That ground is rejected.
21. The fourth ground that is advanced is that the verdicts of the jury in relation to Mr Hester were so inconsistent that the convictions are unsafe. Here, again, we draw on the way the matter is put on behalf of Mr Hester from the written skeleton argument and we read from paragraph 6:

"In the light of the learned judge's directions on joint enterprise about which no complaint is made Volume VI, page 6C to E, there is no logical explanation for the inconsistency in the verdicts of the jury. If the appellant acted with knowledge of what was happening to Mr Scragg at the Prince William Henry public house then, subject to the argument advanced at paragraph 5 above, as to the offence of blackmail already being completed, he would have participated in both offences. As the learned judge observed 'If he did do that knowing what he was collecting and the purpose of it, then he would be guilty of counts 1 and 2, which are alleged against him'."

22. The passage relied on is brought before us and Mr Germain says essentially the cases hung together and then he put it secondly stood or fell together.
23. The law on inconsistent verdicts has been restated many times. The leading case of Bell [1997] 6 Archbold News 2 was reviewed with other authority in the case of R v Rafferty and Rafferty [2004] EWCA Crim 968, the judgment of Rose LJ Vice President. It is worth restating, and we emphasise what the Lord Justice said at paragraph 18 of Rafferty:

"So far as inconsistent verdicts are concerned, during the last ten years or so, this court has said again and again that an appeal based on inconsistent verdicts cannot and will not get off the ground unless there is, first, a logical inconsistency between the verdicts returned by the jury. As the learned single judge in this case pointed out, when refusing leave in relation to this ground:

'The verdicts were not inconsistent. The assault offences required actual violence (or at least an act causing the victim to apprehend immediate violence). Affray can be committed by a threat of violence.'"

Rose LJ continued:

"As is apparent from the evidence which we have summarised, the aspects of this matter which were capable of sustaining a count of affray did not hinge upon the actual administration of personal violence."

He gives examples from the evidence. He went on:

"We repeat yet again, in summary form, just a few of the authorities in this court, in which the need for logical inconsistency between the verdicts to be present before such a ground can take off. We identify, for example, R v McCluskey 98 Cr App R 216, R v Bell Court of Appeal (Criminal Division) 15th May 1997, R v Clarke and Fletcher Court of Appeal (Criminal Division) 30th July 1997, R v G [1998] Crim LR 483 and R v McCartney and others [2003] EWCA Crim 1372. Finally, we refer to an observation made by Buxton LJ in G at page 484 of the, report which, regrettably, seems to be far less heeded than it should be. It is in these terms:

'In appeals in relation to alleged inconsistent verdicts those promoting the appeal should ensure that Bell and the instant case [that is G] are before the court and should be in a position to explain why the general approach adumbrated in Bell should not apply.'"

24. That forms a firm reminder of the degree to which it is necessary to establish logical inconsistency before such a ground of appeal can succeed.
25. The respondent's skeleton at paragraph 20 meets this point directly as follows. On the facts of the case against Hester:

"The verdicts were consistent with the position that

Either

a. The jury were satisfied that the appellant knew that the appellant knew he was assisting in blackmail but not satisfied that he knew the victim was being falsely imprisoned.

Or

b. The jury were satisfied that the appellant knew that the victim was being falsely imprisoned but not satisfied he that aided and abetted that offence by collecting the ransom money."

26. In our judgment, those arguments are correct. Mr Germain had no answer to them when tasked about them several times during the course of the argument. This ground of appeal is rejected.
27. We turn to the fifth ground of appeal. Steven Houston has already been mentioned. He was a relative of one of the defendants and a man for whom the appellant Hester had breached the rules concerning the Police National Computer. In the course of giving evidence Mr Hester was cross-examined, and cross-examined without warning to anyone, about Steven Houston's pending charge.
28. This matter is complained of by the appellant as follows:

"No application was made by the Crown to adduce evidence of Steven Houston's bad character beyond the fact that he had sought information held on the PNC and inferentially, had encouraged the appellant to access the PNC for the purposes of obtaining such information. Volume 4, page4F-G. No evidence was sought to be adduced during the Crown case as to what charge Steven Houston was on remand in custody for. By putting to the appellant in cross-examination that Steven Houston had been charged with murder leading counsel for the Crown in effect gave evidence of that fact after the case for the Crown had closed and without seeking leave."

29. We emphasise that this should not have happened. We regard it as highly regrettable. It clearly was capable of having the effect of associating Hester with someone who had very serious offending laid against him and was capable of being prejudicial. However, in the context of this case one must see the introduction of this material in the light of Hester's defence. Hester's defence was that he had provided information to Steven Houston from the Police National Computer because he felt pressurised and threatened. His case was also that he knew Steven Houston was in custody. He addressed that issue in interview. As the Crown observed in dealing with this ground, the position was as follows:

"On 14th May 2005 the appellant sent a text message to Steven Houston's partner, which read: 'Hi send him my best 4 2day & I hope to c him l8r when he gets out'. He [Hester] accepted that he knew that Houston was in custody on a criminal charge and that the message related to an application for bail that Houston was making that day.

The text message was relevant to the issue of whether the appellant had willingly carried out PNC checks on behalf of Houston. The appellant himself relied on the fact that he knew that Houston had reputation for violence and had been arrested. He claimed that he complied with Houston's request to carry out one of the checks because Houston had said: 'You know what will happen if you refuse' and 'Use your imagination'."

30. Thus it is not straight forward in this case to think of the knowledge now presented to the jury that Steven Houston was facing a very serious criminal charge was damaging to Hester's case. We accept, of course, that association on the part of a policeman with a man with serious criminal engagement might be thought prejudicial, but it might be expected of a police officer that he should at least know such people and in context of this specific evidence might provide or support a relatively innocent reason for doing what the appellant did in relation to the Police National Computer. The Crown accept that it would have been wiser to make an application to the judge, even though the Crown considered Hester was relying on fear of Houston. In our view, it was imperative and the proper course for such an application to be made.
31. However, when the judge was addressed on the matter, he made his position clear as follows:

"That defence was presented to the police when interviewed in relation to misconduct in the context of the Police National Computer ..."

The defence to which the learned judge was referring was, of course, the reason for supplying such information to Houston.

32. The judge went on:

"... and included admissions that he had so conducted himself on behalf of a man named Steven Houston. When asked to explain himself by the police in relation to Houston, he did so upon the basis that he had been asked to access the PNC improperly by Houston and had agreed to do so not because he wanted to but because he was in debt to Houston and Houston was a man with whom, to put it shortly, you didn't mess because he had a reputation of acting violently, threatening people, doing such things."

33. The learned judge went on to say:

"No permission for leave was sought to put Houston's character before the jury in that sense. I am not entirely convinced that it was necessary to do so, but I make it plain that had such an application been made I would have considered that it was a proper application falling within the requirements of section 100 of the Criminal Justice Act 2003, if only upon the basis of correcting a false impression and it fulfilled all the other requirements ..."

The learned judge indicated that he would have admitted that evidence if an application had been made.

34. We have to consider whether, even though that indication was given, this was something which was so unfair that it is liable to render the conviction unsafe. In considering that question we have also borne in mind the careful direction which the learned judge gave on this matter to the jury. He put it early in the summing-up. It appears at page 15 of the first part of the transcript at letters F to G. He gave the matter considerable emphasis. What he said was this:

"You know that misconduct in the use of the PNC in respect of Steven Houston and Michael McKray is alleged. You also know in respect of Steven Houston that he was at one time remanded in custody in respect of a very serious allegation. That allegation was subsequently dropped and he was acquitted of it. This matter is of no relevance to this case whatsoever, it should not affect your consideration of the evidence for or against any defendant, so put it out of your mind."

35. In our judgment, the learned judge was correct to be so clear on that point and to give it such obvious emphasis.
36. In conclusion on this ground, we do not reach the view that this was such an unfair statement as to disturb the safety of this conviction. There was no need to discharge the jury and there is no basis for considering the conviction unsafe on this ground.
37. Having thus dealt with all five of the grounds for appeal from conviction advanced by Mr Hester and dismissed them, it follows that his appeal as to conviction is dismissed.
38. We turn to Mr McKray. The single ground of appeal in relation to the conviction advanced here is that of inconsistent verdicts. The prosecution case against Mr McKray can be summarised very shortly as follows. It is that he was present throughout the incident at the Prince William Henry public house where he was an employee, a public house owned by his parents, and that he assisted by taking an unknown person to purchase cable ties and that he was seen carrying a machete upstairs in the premises. The cable ties were, in the event, never used in any way at all and really do not bear on the case.
39. The defence case on behalf of Mr McKray was that he had no knowledge of the plans to imprison or blackmail the complainant, that he took no active part in the events of that day and was nothing more than an unwilling spectator.
40. A large part of the crucial evidence against Mr McKray came from Mr Goodson to whom we have referred earlier in relation to Mr Hester. The evidence that came from Mr Goodson was that initially he stayed in the bedroom with McKray's partner, Sam, and their two children. He heard scuffling and then Andrew McKray came into the bedroom, turned off the closed circuit television and said that he did not want the children to see what was happening. Andrew McKray them left the bedroom carrying a machete. He, Goodson, heard more scuffling and chairs moving around. There were voices coming from the windowless room at the end of the public house and he believed that someone was being held in the room against their will and being abused.
41. Mr McKray's account can be summarised in a little more detail as follows. He gave evidence that he moved into the Prince William Henry pub with his girlfriend, Sam, and her children in December 2004. At that time his father, Mick McKray, was the landlord. His father moved to Spain in 2005 and essentially did not leave anyone, save for Andrew McKray, in charge of the pub.
42. As to events on that day, John Grey was in the pub and was someone he knew. He was worked up and aggressive. He, McKray, asked him what was happening and was told it was best he stayed out of it. He, McKray, told Sam and the children to go upstairs for their safety but he stayed to see what was going on. He then went upstairs to check on Sam and turned off the closed circuit television in their bedroom as he did not want the children to see. To that extent his account corroborates that of Goodson.
43. Later John Grey moved them to the upstairs lounge. He told Sam to bolt the door and not to let anyone in but him. He went back downstairs and was told to take a man to Halfords where the man purchased cable ties. He just did as he was told. When he returned to the pub he saw men going up and down stairs, some of whom were armed with knives. He served drinks and did not know what was going on upstairs. The atmosphere in the pub was tense and he was scared, particularly as no one was hiding the knives they had on them.
44. We have already rehearsed the authorities and the principles of law relevant to the issue of inconsistent verdicts. The crown's answer here is straight forward: there is no inconsistency. The matter is put as follows:

"Although it was accepted that the victim was wounded with a machete and that it must have been the machete which belonged in the public house, Goodson's evidence that the appellant had taken the machete from the bedroom was not challenged on his behalf.

In evidence-in-chief the appellant was not asked any question directed to obtaining his account about the machete and made no mention of it. In cross-examination he denied handling the machete."

45. The Crown then go on to rehearse the evidence we have summarised already about the general sequence of events in the pub. Then they say this:

"The overall effect of [McKray's] evidence was that he knew that the men involved in a joint enterprise involving violence taking place on the premises but did not know the reason for it.

The evidence supported the conclusion that the machete used to inflict the wounds upon the victim was provided by the appellant. It was open to the jury to infer in these circumstances that the appellant provided the machete to a person or persons whom he realised might use it with the intention of inflicting a serious wound. No other explanation was offered.

The fact that the jury were not satisfied that the appellant was a party to the false imprisonment or blackmail did not logically mean that they could not be satisfied that the defendant provided the machete with the necessary foresight of consequences."

46. In our judgment, as with the case of Hester, there is, therefore, room for a perfectly logical and consistent line, permitting a sensible acquittal on other counts, whilst convicting on the count of being party to infliction of grievous bodily harm. We therefore reject that ground of appeal. It follows that Mr McKray's appeal is dismissed.
(Submissions made in relation to an appeal against sentence on behalf of McKray)
47. MR JUSTICE IRWIN: An appeal against sentence is advanced on the basis that this young man was out of his depth and that the sentence was too severe, particularly compared with that of Mr French. We agree. The sentence will be quashed and there will be a sentence substituted of three years' imprisonment.