England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		22 April 2010

1. LORD JUSTICE RIX: On 10 December 2007 in the Crown Court at Snaresbrook before HHJ Bing and a jury, the appellant, Kevin Nevers, was convicted of nine counts of robbery. On 29 February 2008 he was sentenced by the same judge to life imprisonment with a minimum term of five years and 170 days. He now renews his application for an extension of time of 85 days for leave to appeal conviction, and appeals against sentence by the limited leave of the single judge, who granted the necessary extension of time. He also granted a representation order for junior counsel, but Mr Nevers has dispensed with the services of that counsel.
2. The essence of the prosecution case against Mr Nevers were the accounts of the nine victims of the nine robberies which were charged against him.
3. Count 1 concerned a lady, Alison Hall. On the afternoon of 13 June 2005, she was walking home in Frognal Way in Hampstead with her baby in a carrier on her chest when she was grabbed from behind by somebody using both arms and was forced to the ground. She was told by her attacker to take her ring off. The attacker took the ring off her finger. She described him as black, six foot tall, sturdy and aged 25 to 35. A passerby chased the attacker, who ran off. At an identification parade in 2007, Miss Hall asked to see the picture of the appellant and one other again, but did not make a positive identification.
4. Count 2 concerned a complainant Jacqueline Hefferman. At about 3pm on 9 December 2005 she had left a restaurant in Hampstead to walk home. She saw a man looking at her as she walked, and as she got towards the entrance to her building she saw the same man walking towards her. She ran, and the man pursued her, dragged her to the ground and she felt something sharp in her back. The man demanded her ring and told her he had a knife and would stab her. He took the ring from her finger and demanded her purse, which he took. She described her attacker as black, 26 to 30 years old, quite athletic with a London accent. A witness described the attacker as a tall black man with a good physique running away quite fast. At an identification parade, Miss Hefferman did not identify Mr Nevers as her attacker.
5. Count 3 concerned a complainant Betty Brassey. On 13 February 2006 she had been shopping in Hampstead with her three year-old son in a pushchair. At about 5.45pm she was walking down Frognal Way. She heard running behind her and was grabbed around the neck. The attacker demanded her rings. She fainted, and when she came round the attacker demanded the rings again and she gave them to him. He then told her to give him her purse and told her not to look at him. She described him as black, 5 foot 11, bald or with very short hair and speaking very clear English with no particular accent. At an identification parade she asked to see four images again, one of which was Mr Nevers. She said, "Because it was dark and he was black, it was one of these but I cannot be sure which one".
6. Count 4 concerned a complainant Sarah Bordash. On 24 February 2006 at a time when she was seven months pregnant, she was walking to her home at about 5pm in Haverstock Hill carrying two bags of shopping. As she approached her building, she heard a noise behind her and turned to see a man rushing towards her. As he got closer he said, "I'm going to stab you". He demanded that she give him her rings and threatened to kill her if she did not comply. He put his hand round her neck and pulled her back so that she was lying on the steps. She struggled to remove her rings. He threatened her again. She held her hand up in the air, and the attacker pulled her ring off and took her wallet. She described her attacker as about 30 to 35 years old, black, tall, bald or shaven-headed, with defined cheek bones and jawline, a distinctive tooth with a metallic outline and a space between the two front teeth. In her very first description, she described the rimming of the tooth as silver, but in a later witness statement she described it as gold. An E-fit picture was compiled from her description. At an identification parade five months later in July 2006 she picked out Mr Nevers. She had earlier said to the police that she was sure that she would be able to identify her attacker.
7. During the cross-examination of Miss Bordash, the appellant made a remark from the dock, which has been described as an outburst, although that may be overstating the matter somewhat, upon which the witness became distressed and left the court. She was only willing to continue her evidence by way of video link. The judge's immediate comment upon this event when he adjourned the case was to say to the jury, "I am sure you understand why that was distressing to the witness". There was an application to discharge the jury on the basis that it might be inferred by the jury from the judge's remark that Miss Bordash had recognised Mr Nevers' voice. The judge declined to discharge the jury, but he said that he would explain matters to the jury in a form which was agreed with counsel would be submitted to them in writing.
8. Count 5 concerned a complainant Tanya Miller. On 14 March 2006 she was walking home carrying two bags of groceries, and was walking past 30 Ellerdale Road at about 6.45pm when someone put an arm around her neck and pushed her towards a doorway. Her attacker demanded that she give him her ring and she did so. He then asked for her wallet, but he left without it, telling her not to look back. She described him as black with a close shaven head and a British accent. A man jogging nearby saw someone he described as a black man about 6 foot tall, aged 35, running from the scene.
9. Count 6 concerned a complainant Isabelle Zahar. She was returning to her home in St Henry's Road on 2 May 2006 with her two year-old son in a pushchair and some shopping. At 5.30pm she was about to open her door when she was aware of someone behind her. She turned around and saw a man coming towards her waving a knife. The man demanded her ring. She screamed and took off the ring. He asked if she had anything else and she tipped some coins out of her bag. She described the attacker as black, 6 foot tall, well built, short or cropped hair, wearing a baseball cap and with gold framing rim to his teeth. On 6 September 2007 she attended an identification parade. She did not make a positive identification, but asked to see two pictures again, one of which was Mr Nevers, but said that she thought the attacker was the man in the other photo which she had asked to see.
10. Count 7 concerned the complainant Stephanie Stanfield. She was returning to the place where she was staying in Park Hill Road on 9 May 2006 with her grandson in a pushchair. As she opened the door to the flat she was aware of a man moving very fast towards her. He told her to get in and not look at him. She felt something against her back. The robber asked if her ring was real and told her to take it off and give it to him. She took the ring off but dropped it, and as she picked it up she glanced at the attacker who told her not to look at him. She noticed he had a silver or gold cap on his right upper jaw. The attacker asked if she had any money and she handed him some notes and he left. She described the attacker as black, mid 20s to 30s, over 6 foot tall, with short black hair.
11. Count 8 concerned the complainant Shanna Harvey. She was returning to her home in St Crispin's close on 1 June 2006 with her two young children in a pushchair at about 5pm after doing some shopping. As she approached her home someone came up behind her, put her in a headlock and said, "Don't move. Give me the diamond". The attacker told her to take her ring off. She took off her rings, handed them to him and fell to the ground as the attacker moved away. She described him as black, 5 foot 10 inches tall and slender.
12. The ninth and final count concerned the complainant Jamison Stricker, who was returning to her home in Stanbury Court with a wheeled suitcase, talking on her phone, at about 4.20pm on 12 July 2006. As she waited for the lift to her flat she was aware of a sudden impact. A man put one arm around her head and the other against her jaw and demanded her ring. She took off the ring, and as she went to turn to give it to him, he told her not to look at him. He demanded money and she told him to take her wallet, which she had dropped. A neighbour witnessed a man arriving at and leaving the scene, whom he described as black, six foot tall, short hair and medium build.
13. The prosecution case was that the nine robberies had similar characteristics, were committed by the same man and that Mr Nevers was that man. The similarities relied on were: robberies were all committed in the same area of London, namely Hampstead NW3 in streets around Hampstead High Street and Haverstock Hill in the afternoon or early evening; the victims were all women on foot and on their own or with small children; most were shopping; they were attacked at or near their home or on their way home; the first items demanded by the robber in each case were rings, and then there was a request for wallet, purse or money; the robber was acting alone and appeared to be on foot; the robber attacked from behind; he was black, tall and had short or shaved hair.
14. It was the prosecution case that the victims had been followed and singled out. In three of the counts the victims reported that the robber had a noticeable gold or silver frame or cap on one of his teeth. Mr Nevers had been positively identified by the complainant in count 4, and there were qualified identifications from three other complainants, namely the complainants on counts 1, 3 and 6. The appellant's mobile phone had been used to make calls to jewellers after the robberies in counts 6 to 9. Reliance was placed on similarities between the circumstances of the present offences and those of assault with intent to rob committed in 2000 for which the appellant was convicted in 2001 to show, on the prosecution case, that Mr Nevers had used the same method in the past and to show that he had a propensity not only to commit robbery but to commit robbery very similar to the robberies in this case.
15. Reliance was also placed generally on the appellant's previous convictions for dishonesty in order to undermine the credibility of his defence claims of police corruption in, he said, setting him up with the help of an informant.
16. Reliance was also placed on the fact that £2,000 was found at Mr Nevers' home in respect of the 2000 attempt to rob, and again when his home was searched in respect of the present offences. Reliance was also placed on the manner in which suspicion had fallen upon Mr Nevers arising out of the present spate of robberies, to rebut his assertion that he had been falsely incriminated and impersonated on the set-up of an informer, a man he named as Peter Augustine.
17. The defence case was that Mr Nevers was not the robber on any of these nine occasions. He gave evidence that he was a career criminal, who, he said, had turned from front-line robbery to the safer back-line pursuit of being a receiver of stolen property. He said that he had not committed these robberies or any robberies for a long time. He accepted a general criminality, including being involved in drug deals. His case was that the police had acted on the false information of Peter Augustine, who he said must have been in possession of his mobile phone at the time of the offences committed in counts 6 to 9. He said that he allowed Mr Augustine to take possession of his phone, explaining in ways that were not altogether clear that this helped him to protect himself against the suspicions of his partner when he was being unfaithful to her. He was not able to say that Peter Augustine did have his mobile phone on any of the occasions in question, but he inferred that he must have done, since he had not committed those robberies. He said that the police wanted him to be convicted of a serious crime because he had achieved an acquittal in some other matter which they held against him, and that they had also manipulated the identification procedure relating to count 4 (Miss Bordash) where he had been identified.
18. The defence also relied on any differences in the accounts of the robberies or descriptions of the robber to counter the assertion that they were all committed by the same person. He also maintained his innocence in respect of his 2001 conviction for his assault with attempt to rob in 2000, which he said was another "fit-up", to use the vernacular, as a result of the police planting his DNA, improperly obtained from him, on the victim's clothing. He relied on any inconsistencies in the descriptions given to underline reliabilities of identification.
19. The issue for the jury was the identity of the robber: firstly, were they sure that any or all of the robberies were committed by the same person; and secondly were they sure that that person was the appellant. In that respect, the judge gave the most careful directions as to the limited extent to which the jury could use evidence from one count in respect of any other count. In effect, he directed them that they could only use evidence from one count if they were sure that any other count of robbery had been committed by the same person.
20. We will come to the question of sentence later in this judgment. Dealing first with the matter of conviction where Mr Nevers renews his application for permission to appeal and for an extension of time after the refusal of the single judge to grant his applications, the position is complicated by the fact that Mr Nevers has repeatedly dismissed counsel and solicitors who have been appointed to assist him. In particular, the grounds of appeal which are formally before the court, settled by trial counsel, both leading and junior, relate to three grounds. They are as follows. The first ground submits that the judge erred in admitting the evidence of qualified identification by the complainants in counts 1, 3 and 6 to bolster the only positive identification by Miss Bordash in count 4, which the defence says was, in any event, a mistaken and indeed manipulated identification. Secondly it is said in that connection that the judge placed too much emphasis on the possible significance of the three qualified identifications in summing-up. As to that ground, the single judge drew attention to fact that, in the relevant part of the judge's directions, the judge repeatedly made it clear that a qualified identification is not a positive identification.
21. It was also an oversimplification, said the single judge, of the position to say that the judge omitted evidence of qualified identifications to support the positive identification of Miss Bordash on count 4. Before the qualified identifications could be used as any possible support for the identification by Miss Bordash or as any support of the case as a whole, the jury had to conclude that the relevant robberies had been committed by the same person. The judge's directions were carefully tailored to the facts of this case and were correct. We agree with those remarks of the single judge.
22. The use of a qualified identification has been sanctioned by this court in the case of R v George [2002] EWCA Crim 1923; [2003] Crim LR 282. The matter is also dealt with at paragraph 14-33d of Archbold 2010, referring again to the case of George. That case makes it clear, as Archbold indicates, that a failure to make a positive identification is no bar to the witness describing the offence, the offender or an identification procedure. A qualified identification may be both relevant and probative where (a) it supports or is at least consistent with other evidence that indicates that the defendant committed the crime, or (b) the explanation for the non or qualified identification may help to place it in its proper context: so, for example, to show that other evidence given by the witness may still be correct. The judge must decide whether the evidence is more prejudicial than relevant or probative, bearing in mind the importance of protecting the position of the defendant against unfairness. Where a witness makes a qualified identification, the prosecution must not seek to transform it into an unqualified identification by careful questioning, and they should avoid examining the witness in a manner which suggests a positive identification would have been made but for some fact, such as the subsequent growth of facial hair. All those observations are taken from the decision of this court in George.
23. In our judgment, the trial judge gave a careful Turnbull direction on all aspects of the question of identification. In general, no complaint is made about his Turnbull direction. It is in the context of those entirely satisfactory directions that the judge permitted the jury, if they were sure of the relevance of the other counts in question, also to have regard to the three qualified identifications in question while warning them of the danger of making too much of any of them. In our judgment, there is no arguable error in permitting evidence of these qualified directions to go before the jury or in the judge's direction to the jury as to how they should regard that evidence.
24. The second ground of appeal relates to the so-called outburst by Mr Nevers in the course of Miss Bordash's evidence. It is submitted in this respect that the judge erred in refusing a defence application to discharge the jury following comments made by Mr Nevers to his counsel to the effect that "we were never given the police officers' notebooks" during the cross-examination of Miss Bordash.
25. It is suggested that she was giving evidence from behind a screen, but we do not think that that was in fact the case. At any rate, that outburst, if that is the right description of Mr Nevers' comment, resulted in Miss Bordash becoming distressed and running from the court. The judge adjourned the case, turning to the jury to say, "I am sure you understand why that was very distressing to the witness". It is suggested that the judge thereby indicated to the jury that the witness had recognised Mr Nevers' voice. In fact, outside the court the witness indicated to prosecution counsel that she had not been upset by any recognition of the appellant's voice, or indeed by his voice as such, so much as by her proximity to the dock. It is submitted in respect of this ground that the judge's remark gave the jury the impression that she had recognised the appellant's voice.
26. In the course of the judge's ruling, however, refusing the application to discharge the jury, the judge made it clear that he would inform the jury of the facts, including the witness's comment to prosecution counsel as to what it was that had distressed her, in a form which was agreed at that time would be put into writing by the judge and agreed by counsel. It is not suggested that that was not done, and therefore we proceed upon the basis that a satisfactory form of words was agreed between all counsel, and that the judge informed the jury soon afterwards to put their minds at rest.
27. Moreover, we learn from the summing-up that both defence counsel and the appellant and Mr Nevers himself when he came to give evidence at trial apologised for his outburst, or however his remarks should be described. The single judge observed in relation to this ground:

"Your outburst occurred during the evidence of the only witness who purported to make a positive identification of you. Whether a jury should be discharged in circumstances similar to those which arose in this case is a matter of judicial discretion to be exercised by the trial judge who is well placed to consider the impact of what has occurred on the whole of the trial. The Court of Appeal will be reluctant to interfere with the proper exercise of such a discretion. In your case the judge dealt appropriately with the matter at the time the application to discharge was made and he later gave a clear direction to the jury in his summing-up about this matter."

28. We agree with those remarks. We add to them the remarks that we have given a little earlier in this judgment. We consider that the judge dealt wholly appropriately with this matter at the time. He appears to have dealt with this matter indeed, subject to his ruling not to discharge the jury which was a matter of argument, in a manner which otherwise passed through the agreement of all counsel, and we are entirely satisfied that there is no arguable ground to go to appeal in this respect.
29. It is clear from the summing-up as a whole that Mr Nevers was constantly addressing remarks either to his counsel or to the judge or in general to the court. Whether those remarks heard throughout the trial by the jury assisted him is a matter that he took the risk of when he made those remarks. In this connection, it is submitted in respect of this second ground of appeal that he was prejudiced by the affair of the so-called outburst as indicated by the fact that one juror was heard to remark to another words to the effect of "Can't the defendant be controlled?" In the light of Mr Nevers' constant remarks in the court, we can understand why such a remark may have been made. It is suggested that such a remark might indicate bias or apparent bias on the part of the juror such as to lead to the need to discharge the jury. We consider that there is nothing arguable in that submission. Mr Nevers took the risk of making remarks in the hearing of the jury, which might have affected their view of him one way or the other, but that was entirely a matter for him.
30. The third ground of appeal in counsel's grounds is that it is submitted that the judge erred in declining to order that the Crown disclose the antecedent history, that is to say the previous convictions, of the man claimed by Mr Nevers to be the police informant in the case, an allegedly former friend of his, Peter Augustine.
31. The judge declined to order that disclosure, but at the direction of the judge the officer in the case disclosed in evidence that there was no informant in the case, and indeed there was detailed evidence led by the prosecution, in rebuttal to the defence that Mr Nevers had been set up by the machinations of an informer, by means of detailed evidence of exactly the way in which police suspicion came to focus on Mr Nevers. The evidence described how that suspicion led to him being put under surveillance, and ultimately, with the assistance of a CCTV photograph obtained at the time of the last robbery, the suspicions amounted to a case on the basis of which the police considered they had a right to search Mr Nevers' home and arrest him. So there was a full display before the jury of the circumstances in which the police came to suspect, arrest and charge Mr Nevers. The single judge commented as follows in respect of this third ground:

"As it was a central part of your case that an informant had wrongly identified you to the police as the robber, the judge took the unusual step of admitting evidence that there was no informant in this case. The judge's refusal to allow evidence of the previous convictions of the person you allege was the informant was justified. The prosecution was entitled to cross-examine you upon your case and the alleged "unfairness" and "potentially prejudicial effect" of the judge's rulings referred to in your grounds of appeal remain unclear."

32. We agree with those remarks. We consider that the criminal antecedents of Mr Augustine were of no relevance at all; that the defendant had full opportunity to put forward his defence of set-up and manipulation, which indeed went much wider than reference to Mr Augustine himself and embraced Police, Crown prosecution and indeed both prosecuting and his own defence counsel, and included references to a Freemasons' conspiracy; and that, in light of the evidence which the Crown led, the defence was put in a full position to cross-examine the prosecution witnesses on every aspect of the case which concerned the circumstances which had led the police to arrest Mr Nevers. There is nothing arguable in this ground.
33. In the course of many detailed letters which Mr Nevers has written to the Criminal Appeal Office, it is plain that Mr Nevers repudiates the grounds put forward on his behalf by leading and junior counsel, and is concerned that the only grounds which should go before the court are those of his own composition which he has addressed in his numerous and lengthy letters to the Criminal Appeal Office. Despite his repudiation of his counsel's grounds, we have nevertheless considered them in this judgment. We go on now to refer to the grounds of his own composition by reference to a certain number of detailed letters which he wrote.
34. The first letter which we consider is that dated 10 June 2008. There Mr Nevers alleges that his trial solicitors had deliberately undermined and destroyed his defence case in conjunction with trial counsel. He drew attention to press reports which show that there were other people committing similar street robberies in the same area. He criticised his trial counsel for not putting those reports into evidence. He drew attention to the description given in police statements by the complainant in count 2 and the complainant in count 6, which he submitted did not match his description. He submitted that the evidence of Detective Sergeant Lincoln that the nine robberies of which he was convicted followed a unique pattern was false, especially in light of other similar robberies which still continued, and that this was not properly tested by his defence team.
35. He alleged that there had been extensive police corruption at play and that the police lied when stating that Peter Augustine had not informed against him. He alleged that the trial judge was in collusion with trial counsel, both prosecution and defence, and solicitors and police, in a conspiracy against him. He referred to a "Freemason sting" to undermine his trial.
36. In a subsequent letter dated 24 July 2008, he attached a copy of his custody record and Police Information Report, newspaper articles and an E-fit picture relating to count 4. He asserted that the custody record, which includes the words "info received", supported his claim that police received information from an informant, namely Peter Augustine. He rejected the explanation given at trial by the police witnesses that it referred to an information report which was available to him about which evidence was given at trial from Detective Constable Pearse, which he claimed had been fabricated. He referred to an article from a newspaper dated 8 May 2008 which was said to be evidence that two men who pleaded guilty to carrying out similar robberies could have been responsible for the nine robberies of which he was convicted. He referred to another newspaper article dated 26 June 2008 which showed that a similar robbery was carried out by another man who he said could have been responsible for the nine robberies.
37. A third article dated 18 June 2008 was also relied on as showing an E-fit of a black man who carried out another robbery which he said could be said to resemble himself or indeed many other black men, and that person in that E-fit photo could, he said, have been responsible for the nine robberies. He continued to maintain that the E-fit picture of the man alleged by Miss Bordash to be responsible for count 4 did not particularly resemble him, but could be the same man as shown in the last newspaper article referred to.
38. In a letter dated 23 October 2008 Mr Nevers referred to earlier proceedings in 2000 and 2001 in which a decision of the trial judge, HHJ Bing, relating to bail was judicially reviewed and, as we understand it, overturned. He concludes from this that the trial judge was wrong to have sat as trial judge in the present matter on the basis of what is alleged to have been his "bloody nose experience". He made allegations of corruption and collusion against the judge, defence team, prosecution team and police on the basis, inter alia, that the judge was "headhunted", as he put it, as the trial judge by both police and prosecution. He alleged that the complainant in count 1 colluded with the prosecution to prevent his release at the expiry of custody time limits, and indeed suggested that the complainant in count 1 was a complete impostor as the alleged victim of any robbery.
39. In a still further letter dated 21 November 2008 Mr Nevers drew attention to elements of the evidence against him and surrounding circumstances which he considered cast doubt on the prosecution case. He enclosed still further newspaper cuttings showing that robberies had been committed in the same area by others. He enclosed a statement from Mark Lavender, a police support researcher, who had collated information on the nine robberies, and another robbery with which the appellant was not charged. He sought to draw the inference that the link between the nine robberies was not that they were similar in nature as the police suggested, but that they had all been the subject of information from an informant and that someone else could have committed them.
40. He referred to his previous conviction of 2001, but stated that there had been many similar robberies in that area over the years. He said he had instructed his counsel to apply for the dismissal of the charges against him because of the evidence of other similar crimes having been committed by others in the same area. As to those matters, the single judge commented as follows:

"I have read your numerous letters and enclosures. Much of what I have read has nothing to do with potential grounds of appeal against conviction. Other documents submitted by you contain generalised and unsubstantiated complaints about your legal representatives, the trial judge and some prosecution witnesses. None of these amounts to an arguable ground of appeal. In some passages of your letters you seek to argue points raised at trial which were the subject of proper directions from the judge and which the jury must have resolved against you.

None of the matters raised whether taken individually or together raise any doubt about the safety of your convictions. Had there been arguable grounds of appeal against your convictions I would have granted you the necessary extension of time with which to pursue those grounds. However, in the absence of any meritorious grounds, I refuse the requested extension of time within which to appeal against conviction."

41. We agree with those remarks. Since the matter was before the single judge, however, Mr Nevers has continued with his correspondence to the Criminal Appeal Office. Much of the material in those letters relates to his representation, so as to clarify reasons why he did not want to be represented by counsel who were available to represent him, both in respect of matters of conviction such as the advice that trial counsel had written for him, or in respect of sentence where he had been assigned fresh legal representatives. Otherwise, he repeated in increasingly generalised terms his allegations that the whole of his trial had been a product of a conspiracy which embraced not only police and the Crown Prosecution Service, but also prosecuting and defence counsel and the judge, and to that he now added the complicity of the single judge.
42. He added complaints that he had been "fitted-up" by the police in relation to the seizure of his mobile phone, albeit it was common ground at the trial that the mobile was his. He complained about the summary of the Criminal Appeal Office, and in general terms about the observations of the single judge. But, in general, his complaints became increasingly generalised.
43. We have considered all these grounds of his own composition, both those which were considered previously by the single judge and those which have emerged after the single judge had this case before him on the papers. We find nothing whatsoever in these grounds which would arguably be relevant to appeal. In general, the submissions relate to evidence and arguments and defences and submissions which were before the jury at trial, and on which the jury have rejected his account and, by their verdicts, expressed themselves as satisfied so that they are sure of the prosecution case.
44. It is relevant in this respect to observe that it was Mr Nevers' case already at trial that Miss Bordash, who of course gave significant evidence against him in relation to count 4, was not the victim of the robbery in the case, but was an impostor who had been brought forward and manipulated by the police, and all this on the basis that her evidence all arose out of an attempt to commit an insurance scam in respect of a valuable ring taken from her which she had in fact not lost. So all these matters were before the jury, as was his case that there were many other robberies committed in the area or outside it with which he was not charged, with the suggestion that other robbers, who may also have been black, were responsible for the nine robberies in this case.
45. The fact is that all of these allegations were either considered at trial and rejected and/or are of an entirely general nature and they present no basis for an appeal.
46. For all these reasons, therefore, we consider that there is nothing that could meritoriously go to an appeal, and in those circumstances we decline to extend time for this application, so that both on the merits of all of the complaints made, whether by counsel or of his own composition, but also on the ground that these matters were all out of time, we reject the applications.
47. We turn to the question of sentence upon which Mr Nevers has a limited appeal. Mr Nevers is now 43, having been born in 1966. He had 34 previous convictions for 60 offences, including convictions for robbery in 1984 and 1994, and for assault with intent to rob in 2001. In respect of that last conviction, he received a sentence of seven years' imprisonment. A pre-sentence report stated that he did not accept his guilt and would not discuss the present offences, albeit he accepted that robbery was wrong, which the author of the report said represented a shift in his thinking. He had cited his personal experience of racism and his belief that police and society were corrupt as a justification for his offending. He presented as dogmatic and rigid in his thinking, but not aggressive. He had a long and entrenched history of offending, which was undeterred by prison sentences or community disposal. He was assessed as posing a risk of re-conviction and of posing a very high risk of harm to the public and particularly towards women. The report writer concluded that there was nothing to rebut the presumption under section 229 of the Criminal Justice Act 2003 (as that Act then stood) that the appellant was a dangerous offender and that therefore an indeterminate sentence for public protection should be considered.
48. We also have a psychiatric report, albeit it appears from the sentencing remarks that that had not been read by the sentencing judge. In his report of 28 February 2008, Dr McEvedy reported that the appellant was not willing to be interviewed and therefore he was not interviewed as part of that report. Nevertheless, the report was based on speaking to a prison officer, and on probation reports, previous convictions and the prosecution opening note. Probation reports indicated that the appellant saw racism and police corruption as the reason for the majority of his convictions, and that he lived his life in response to these perceived injustices. The present offences showed a pattern of planning, increasing frequency and the targeting of vulnerable victims who were pregnant or who had young children with them. Prison officers had no concerns over the appellant's mental health. The report writer, Dr McEvedy, considered that the appellant's record of offending and his attitude to that offending indicated an anti-social personality disorder.
49. In his sentencing remarks, the judge referred to the previous convictions for robbery or assault with intent to rob in 1984, 1994 and 2001, and said that the court was therefore required to impose at least an indeterminate sentence of imprisonment for public protection, or possibly a sentence of life imprisonment unless it would be unreasonable in all the circumstances to do so. The judge formed the view that the appellant presented a real and significant danger to all women in North London and probably elsewhere who are on their own and wearing valuable jewellery. There was a significant risk of psychological harm or serious bodily injury to women, who might be attacked by the appellant in the future.
50. In deciding whether to impose life imprisonment or imprisonment for public protection, regard should be had to the Criminal Justice Act 2003, section 225(2)(b). In that respect, the judge considered that he should have regard to the distinction with respect to the period on parole licence as between the two sentences, whereby in respect to an IPP the Parole Board have a discretion to dispense with a further licence period after a prisoner has been released from prison and has continued for ten years on licence. The judge remarked that, having regard to the fact that Mr Nevers completely ignored the licence provisions of his last sentence and he refused to sign his licence, and had committed the first robbery whilst on licence, therefore the public, in the judge's view, could not be protected by anything else but a lifelong period of licence. Accordingly he considered there must be a sentence of life imprisonment for each of the offences.
51. As to those offences, the judge remarked that he had stalked and watched each of his victims and chose to attack them in a place where he thought that he would not be caught. He had avoided CCTV cameras and had struck swiftly and ferociously, using his physical strength to dominate and to instill fear into his victims such that two of them described the attacks as a violation and the third as a humiliation. His objective in each case was valuable rings, and he had no regard for his victims. He had deliberately selected pregnant women or women with small children as they would be less likely to offer resistance. The psychological impacts on the complainants, as revealed by their evidence or by their victim impact statements on counts 2, 3 and 4, had been very great. The complainant in count 2 was so frightened that she had moved out of the area, and the complainant in count 9 had also suffered physical injuries to her face and neck and she had suffered from headaches. This had caused her to suffer depression. She was permanently disabled in that her jaw would not close properly, which she described as painful, annoying and uncomfortable.
52. The judge identified five significant aggravating features: firstly, it was a campaign of robbery; secondly, the appellant was carrying a knife or threatening to use a knife in some of the attacks; thirdly, he targeted vulnerable women; fourthly, count 1 was committed whilst on licence for a similar offence and the remainder were committed whilst he was under supervision for another offence of violence; and fifthly, the high value and totality of the property taken and the personal sentimental loss of the rings to the victims.
53. The judge considered that the notional determinate term for each of these offences would be 12 years. Taking into account the time spent on remand, but disregarding time spent prior to 18 August 2007 in serving the remainder of his sentence of seven years imposed in 2001, the minimum term to be served was five years and 170 days. The judge said that, in making that calculation, he had given to Mr Nevers every benefit there was (in his view) of the time spent in question.
54. In the light of those remarks, we consider the ground of appeal before us, which is that the judge was wrong to have sentenced Mr Nevers to life imprisonment rather than imprisonment for public protection. In brief, we agree with that ground. As has been made clear in the case of Kehoe [2009] 1 Cr App R (S) 9, and the still more recent case in this court of Wilkinson, imprisonment for life should be reserved for circumstances where the culpability of the offender is particularly high or the offence itself is particularly grave. In Wilkinson, Lord Judge CJ indicated that in this connection a sentence of life imprisonment was really appropriate for those cases which needed a denunciatory element in the sentencing. It is clear from those cases, but indeed also from earlier cases prior to the 2003 Act where the courts were considering discretionary life sentences before the arrival of the indefinite sentence of imprisonment for public protection, that even campaigns of robbery of this kind and of this seriousness did not properly require a life sentence. If that was the case before the advent of the 2003 Act, then in the light of Kehoe and Wilkinson it is particularly the case now.
55. We have considered in this respect the judge's minimum period of five years and 170 days. That is not a ground of appeal for which the single judge has given leave to appeal, but we have nevertheless considered the extensive written submissions before us of Mr Nevers' own composition. He submits that the judge was wrong to consider that any of this offending required a determinate sentence of more than seven years, and thus a specified period for the purposes of an IPP of half of that. He submitted that the judge was wrong to sentence within the sentencing guidelines range of a top level robbery. We consider that there is nothing arguably worthy of an appeal in that submission.
56. This was a shocking campaign of robbery. The judge was right to consider that it was aggravated by the five aggravating features to which he referred. The victims were understandably distressed by what had happened to them. There was the use or threatened use of a knife on a number of occasions. These were vulnerable women, all the more vulnerable either because of their pregnant condition or because of their concern for children that were in their control.
57. We consider that if we had been the trial sentencing judge, we would have started off with a determinate period of more than 12 years for this campaign of robbery. Suffice it to say that it cannot arguably be said that a determinate starting point of 12 years is manifestly excessive.
58. As for the final period worked out by reference both to the period served under the outstanding 2001 conviction and otherwise to a period of remand, we consider that the judge plainly gave the benefit of any doubt in that respect to Mr Nevers so that his final period in his discretion of five years and 170 days is one about which no arguable complaint could be made. We therefore refuse to give leave to appeal in respect of those extra grounds of his own composition.
59. The result of the appeal against sentence which is before us is that that appeal is allowed. We quash the sentences of life imprisonment on each of the nine counts, and replace them with a sentence of imprisonment for public protection. There is no doubt that an indeterminate sentence of imprisonment for public protection is needed in this case, even without the presumption which in fact arose under section 229 of the 2003 Act. The circumstances of these offences make it absolutely plain that Mr Nevers is a dangerous man, in whose case there arises a significant risk of serious harm arising from the committing of further similar serious offences in the future.
60. Therefore, there must be an indeterminate sentence of imprisonment for public protection, and therefore, although the sentences of life imprisonment are quashed, we impose in their place on each of the nine counts a sentence of imprisonment for public protection and a minimum specified period of five years and 170 days in accordance with the judge's view of that matter.