England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Wednesday, 16 June 2010

1. LORD JUSTICE ELIAS: On 11 April 2006, in the Crown Court in Chelmsford before HHJ Ball QC following a nine-day trial, the appellant was acquitted of murder, but convicted of manslaughter and sentenced to imprisonment for public protection with a minimum term of five years. Time spent in custody was deducted.
2. Brendan Tedman, the co-accused, was convicted of assisting an offender by impeding his apprehension or prosecution and was sentenced to nine months' imprisonment. The appellant now appeals his conviction with the leave of the full court.
3. The background is as follows: on 23 July 2005, the appellant stabbed the victim, Peter Grimshaw, in the chest. Grimshaw was pronounced dead at 20.25. A postmortem examination revealed that he had died from a chest wound. Only moderate force would have been necessary to inflict it.
4. The appellant, the co-accused and the victim were drug users and they all had a number of previous convictions. The prosecution case was that the appellant murdered the victim. The evidence of a number of witnesses was relied upon as follows: those present at the victim's home stated that the appellant visited 105 Forest Road in the early evening of 23 July. An argument ensued between the appellant and the victim, which led to a physical fight outside the property. The appellant appeared very angry and aggressive. At one stage the victim returned to the property and was bleeding from what appeared to be a head injury. The appellant then picked up a bike and then a dustbin and he threw these at the window. The appellant was then seen to head towards a Panda motor vehicle and returned with a knife. He kicked the door down, entered the property and stabbed the victim.
5. Some of these witnesses stated that the victim also had a knife, but that he had not raised it towards the appellant. Other witnesses, such as a neighbour and passers-by, gave evidence in similar terms. One Mary Murphy said she thought the victim might have had a knife, but could not be sure and did not see one.
6. The appellant's mother gave evidence stating that the appellant visited her the day before the stabbing and did not seem right, as she put it. At about 7 o'clock the following day he returned to the house wearing bloodstained trousers and showed her a deep cut on the inside of his arm. She asked him to leave.
7. Michael Thoroughgood was a witness who was a flatmate of the co-accused, Tedman. He described Tedman as quiet and acting strangely on 24 July. The co-accused alluded to the fact that "something really bad had happened" the previous night. On arrest the appellant stated "Murder? I haven't murdered anyone.... I'm telling you he had a go at me and I had a go back". The appellant was taken to hospital to receive treatment to his arm and commented, "The bastard who did this to me, at least I'm not where he is now". In interview the appellant read out a prepared statement in which he claimed to have acted in self-defence, but thereafter he refused to answer any questions. In a later prepared statement he said that the co-accused had not been involved in the incident that led to the victim's death.
8. Tedman in his interview stated that he had driven the Fiat Panda motorcar, but that he had had no knowledge of why they were going to the victim's house. He went into the house and socialised with the persons there for a while. He left the house when the fight started and returned to the car. The appellant had left the victim, but he returned and began fighting with the victim after the victim had said that he had called the police. When the appellant returned to the car he had what appeared to be a stab wound to his arm. The appellant then told Tedman that he had stabbed the victim in the upper chest area two maybe three times. The appellant threw a knife out of the window of the car as they drove along.
9. When giving evidence at trial the appellant said he had known the victim for ten years and they had often had arguments and fights, but would then get on again. He described the victim as violent. He visited 105 Forest Road with the co-accused and an argument ensued between the appellant and victim and became a physical fight. The appellant left but the victim flagged down the car and the appellant got out. He noticed that the victim had a knife and the victim lunged at him, stabbing him in the arm and causing excruciating pain. The appellant fell but the victim came at him again and the appellant took a knife from his pocket. He tried to hold the victim back, but the victim lunged forward again and suddenly stopped. The appellant realised that the knife had gone into the victim's chest. It had been a life and death situation. He said that Tedman said to him "I will be a witness to you in court after what he just did".
10. The appellant said he threw the knife away because the co-accused, Tedman, had told him to. He did not go to hospital to have his wounds seen to at the time, not because he was afraid to answer questions but because he wanted to have a drink. He had not been conscious of stabbing the victim.
11. Tedman gave evidence. He said that he went to Forest Road, but did not know who they were visiting until they arrived. The victim and appellant went to another room and then he heard raised voices. He saw the victim lunge towards the appellant's thigh. A fight ensued and the appellant and co-accused then returned to the car. They drove off but the victim flagged them down and Tedman, the co-accused, pulled over. The appellant got out and then he saw that the victim had a knife in his hand. He saw the victim lunge at the appellant who fell and put his right arm up across his chest. The victim lunged forward again and the appellant appeared to be pushing him back. The victim then leant against the wall and the appellant returned to the car. Tedman told the appellant what he had seen, said that he would be a witness to the incident, and told the appellant to throw away the knife.
12. This account, of course, differed fundamentally from his earlier account, consistently given in his defence statement and in interview, and in the instructions which he had given to his counsel and which had provided the basis of his case put in cross-examination. It was a dramatic volte-face.
13. In cross-examination the Crown suggested, understandably enough in the circumstances, that he had tailored his evidence to fit in with the appellant's evidence and they sought to explore the discrepancies in the two accounts he had given. The co-accused accepted that there were major discrepancies and inconsistencies, but said he could not explain why he was changing his account in this way. He was pressed strongly as to whether he had been threatened or placed under any pressure, but he denied that he had.
14. After closing speeches had been given by counsel for the Crown and the appellant, Tedman, indicated that he wanted to give evidence and to change his account. He told his lawyers that he had given a perjured account in the witness box as a result of intimidation by the appellant. His lawyers had in fact been alerted to this by his mother, because he had told her that he had given a false testimony.
15. Submissions were made to the judge, who accepted an application from Tedman, contrary to the submissions of both counsel for the Crown and the appellant, that his case should be reopened and that he should be recalled to give further evidence. The judge in his ruling observed that he did not know whether or not the co-accused's new account contained the truth. It was not his province to decide that question. It was true that the co-accused had already had an opportunity to give his account, but the very purpose of putting someone in fear and terror of violence was to colour or change their evidence, and if that fear is effective it may achieve that purpose.
16. The relevant question, in his view, was whether the trial should conclude without the issue being resolved or at least explored before the jury. The judge thought that that would not be desirable. Had the issue been of little consequence, the application could not be countenanced. However, the significance of the co-accused's evidence was clear, as was the fact that it had varied so significantly in the way his case had been put up to that point. The judge then said this:

"The trial process is a remarkably robust and flexible instrument, and, in my judgment, it would be wrong to press on urgently to the finishing line of the trial knowing that this issue had been flagged up as something of significance for

Mr Tedman and, indeed, potentially, for Mr Reid.

There is a distinction to be drawn between this stage of the trial and a consideration of such an application post-trial, because we have not reached the finishing line; we can allow extra time in the trial to investigate this. We do not have the same public policy considerations that perhaps apply to the Court of Appeal when they might be confronted with someone who has lost the first leg and wants a replay and wants to try and change things in his favour. We have not got to that stage yet; and that is the fundamental difference.

It seems to me, the trial process being as robust and flexible as it is, that this significant issue can and should be explored before the jury. "

17. Accordingly leave was given to the co-accused for his case to be reopened and for him to adduce further evidence. The account could of course be tested by cross-examination, and as the judge observed, it was open to critical comment by the appellant's counsel in his closing speech.
18. When the co-accused, Tedman, gave his evidence he reverted to the account that he had given consistently throughout. The appellant was recalled. He strongly denied exerting any form of pressure over the co-accused and he said that he stood by his evidence.
19. The only ground of appeal now advanced is that the appellant's conviction is unsafe because the judge should not have allowed Tedman to be recalled to give his evidence. The appellant relies on a number of authorities in support of the submission that it was wrong for the judge to take this course. These authorities were not referred to the judge who therefore made his ruling in ignorance of them. Mr Katz QC, counsel for the appellant, submits that had the judge properly directed himself in the light of those authorities, then he could not properly have made the ruling which he did.
20. In R v Hakala [2002] EWCA Crim 730 the facts are somewhat complex. An appellant argued on appeal that evidence he had given at trial was false because he wished to conceal his previous convictions. Judge LJ, giving the judgment of the court, noted at paragraph 81 that the trial process is not a tactical game, and that in the normal way the opportunity for the defendant to give his evidence is to provide it at trial, and that is where he must take it. He could not seek to rely on different evidence on appeal.
21. In R v Cook [2005] EWCA Crim 2011 the appellant, Savvas Petri, was convicted of murder. He had allegedly killed a man called Harvey, whose body was found partially burnt in Cumbria. His two co-accused, his son Theo and a man named Cook, were convicted of assisting an offender to escape justice. When giving evidence Savvas had said that he knew nothing of the killing. He was aware that Harvey was in the north of England trying to obtain money in a drugs deal with which to repay a debt to Savvas. Those criminal associates must have killed Harvey.
22. When cross-examined by Cook's counsel it was put to him that he had told Cook that he had killed Harvey in London. The implication of further questions was that the appellant had taken the body north in his car to get rid of it. The son, Theo, gave evidence, which was totally different from the way in which his case had been put by his counsel in cross-examination. He gave evidence that his father had been compelled by threats by a vicious gang to take the body and dispose of it. He would not name the persons involved for fear of reprisals. He had assisted his father.
23. Following the son's evidence Savvas's counsel applied for leave to return to the witness box. He indicated that Savvas would give evidence in line with that given by the son. This would in fact have been a third and different account from the two he had given previously.
24. The judge refused the application. Savvas sought to challenge his conviction on the ground that the judge had erred in law. This court (Smith LJ and Nelson and Henriques JJ) dismissed the appeal. In doing so Smith LJ summarised the legal principles which apply when an application is made to recall a defendant as follows:

"1. The Judge has a discretionary power to allow the recall of a witness or a defendant at any stage of the trial subsequent to his initial evidence and prior to the summing up for the putting of such questions as the exigencies of justice require – see Sullivan [1922] 16 Cr. App. R.ep 121 and McKenna 40 Cr. App. R.ep 65.

2. Once a defendant has made himself a witness, he is liable, like any other witness, to be recalled for the purpose of answering such questions as the judge permits to be put to him.

3. A judge will permit a defendant to be recalled only to deal with matters which have arisen since he gave evidence if he could not reasonably have anticipated them and if it appears to be in the interests of justice that he should be recalled.

4. A judge should never permit a defendant to be recalled so that he may resile from evidence already given and advance a new version of events where that version was available to him when he was first in the witness box.

25. Both R v Hakala and R v Cook were considered in R v Ikram and Parveen [2008] EWCA Crim 586. In that case it was unclear which of two persons living together had inflicted injuries leading to the death of a young child. Ikram was the father and Parveen his partner. Both were originally charged with murder and with causing or allowing the death of a child under section 5 of the Domestic Violence, Crime and Victims Act 2004.
26. At the close of all the evidence they both indicated that they wanted to make submissions that there was no case to answer on the murder charge. (In cases of this kind the application cannot be made until all the evidence is heard by virtue of section 6(4) of the 2004 Act.) The Crown anticipated the application and decided not to proceed with the charge of murder against Ikram. Parveen's application was unsuccessful, although in fact she was subsequently acquitted by the jury.
27. After the decision had been taken not to pursue the murder/manslaughter charge against Ikram, Parveen indicated that she wished to give a new account of her relationship with Ikram, alleging that she had been an abused partner who had witnessed Ikram abusing the child. The judge refused to let her give evidence again, notwithstanding that it was contended that it made more sense of the medical evidence. One of the grounds of her appeal against her conviction under section 5 of the 2004 Act was that the judge was wrong to refuse to accede to this application. The Court ( The President of the QB Division, Igor Judge LJ, as he then was, and Gross and Blair JJ) rejected the argument. The President said this:

"51. ... Mr Davis submits that the decision was wrong, essentially on the basis that the interests of justice required that once Parveen had fully appreciated the implications of Ikram's evidence, she had been moved to tell the truth, and should be allowed to do so.

52. Again, we disagree. Although the defendant cannot be deprived of the opportunity to give evidence in her own defence, and to advance whatever case she wishes, the opportunity to give her full and complete account of relevant events is only available once. It is difficult to imagine circumstances – unless bizarre in the extreme - in which the defendant should be granted the privilege of giving evidence twice in order to advance contradictory defences at the same trial. Naturally, a judge may be inclined, as a matter of discretion and in the interest of justice, to allow a defendant to be recalled to clarify some feature of his evidence or to address a possible source of misunderstanding, or for example, to allow the first defendant, faced with new allegations by the second defendant which for one reason or another were not put to him when he was cross-examined, to be given the opportunity to answer such allegations. However the defendant cannot seek to be recalled after the conclusion of the evidence of the other defendant, or indeed after the close of the evidence, in order to give evidence in support of a new defence which contradicts the evidence he has already given. That would normally constitute an abuse of process.

53. In R v Hakala [2002] Cr. L.R578, EWCA Crim 730, addressing a reference by the Criminal Cases Review Commission, this court was in effect invited to assume that the appellant's evidence at trial 'was perjured, to avoid the potential tactical disadvantage created by his previous conviction'. The Court observed:

'the trial process is not a tactical game. Under the rules which govern every trial at any given stage in the evolution of the criminal justice process, forensic steps taken by one side, or the other, carry forensic consequences. None of the tactical decisions appropriate to meet contemporary rules are predicated on the basis that any witness, and in particular any defendant who chooses to exercise his right to give evidence, is somehow entitled to depart from the fundamental requirement that his evidence should be truthful evidence. As a corollary, the opportunity for the defendant to give his evidence is provided at his trial, and that is where he must take it. It follows that this court will only permit an appellant to present a factual case inconsistent with his instructions and sworn testimony at the trial at which he was convicted in the most exceptional circumstances.'

54. The situation here was analogous. Parveen gave one account of the facts: she was not permitted to give a second, contradictory account. Hakala gave one account at trial: the court was being invited to admit a contradictory account at the hearing of his appeal. The attention of the judge, and our attention, was drawn to R v Cook [2005] EWCA Crim 2011 where a situation indistinguishable from the present arose. Smith LJ summarised the principles relating to the discretionary power of the judge to allow the recall of a witness or a defendant after the conclusion of his evidence, and before the summing up, adding:

'3. A judge will permit a defendant to be recalled only to deal with matters which have arisen since he gave evidence if he could not reasonably have anticipated them and if it appears to be in the interests of justice that he should be recalled.

4. A judge should never permit a defendant to be recalled so that he may resile from evidence already given and advance a new version of events where that version was available to him when he was first in the witness box.'

55. With one small reservation, we respectfully agree. In the light of Hakala, and similar cases to which the attention of the Court was not apparently drawn, we doubt whether the judicial discretion identified in the passage cited in Cook can be subject to quite such an absolute and immutable fetter. Never is a long time, and when the exercise of a judicial discretion in a criminal trial is under consideration, "never say never" is a valuable working principle. That is what the court had in mind in Hakala when expressing itself as it did on the question whether a defendant should be allowed, in the language used in argument before us, a second bite at the cherry. In short, although like the court in Cook, we cannot presently imagine of a situation in which the interests of justice would permit a defendant to be recalled at his own trial, to advance a new account of the facts, contradicting his earlier evidence, it is impossible to be sure that a situation in which the interests of justice may require such an unusual course could never arise. However that may be, it certainly did not arise in this one."

28. The appellant contends that the principle is clear from these authorities: save in the most exceptional of circumstances, it would be wrong for a defendant to be recalled to give evidence which contradicts earlier evidence. There was no justification for departing from that principle here. It is important that defendants appreciate that they have to give their evidence once, and they give it on oath, and they must not be allowed to resile from it. There would be potentially many cases where applications of this kind would be made, particularly in cut-throat cases, if a defendant were allowed to give his evidence again, as in this case.
29. Furthermore, there was every opportunity for the co-accused, Tedman, to have told the jury when he was cross-examined on the first occasion that his story was false and had been given under pressure.
30. We see the force of those submissions. However, as Sir Igor Judge indicated, there may be exceptional circumstances where it will be permissible to allow a defendant to return to the witness box. We think this was such a case. Here there was a very difficult situation facing this judge. It is true that he did not direct himself in accordance with the authorities that we have identified (Ikram and Parveen in fact had not been decided at that stage), but we are satisfied that he exercised his discretion appropriately. We do not think the observations of the President, to the effect that it would normally be wrong to admit somebody to come back into the witness box and give evidence, were directed to a situation of this kind.
31. This case is far removed from the circumstances in either Cook or Ikram. In each of those cases the defendants wished to give a wholly new account of the events to the jury, tailoring their account in the light of evidence given by a co-defendant, so as to their case in a better light. That was not the position here. We think the judge was right to take the step he did for the following reasons. First, and in our judgment this is a most important consideration, this was not a case of a defendant seeking to give an entirely fresh or different account for the first time after having heard what another co-defendant had said. This was not a third account departing both from his interviews and his evidence before the jury. He was not simply seeking to contradict his original evidence or to tailor the evidence in the light of what emerged at trial. He had already provided contradictory accounts, albeit only one from the witness box, and that would have been plain to the jury. What he was seeking to do was to resolve that contradiction and to explain why it had occurred.
32. Second, it was not necessarily in his interest to revert to his original account. In supporting the appellant in the evidence that the appellant gave to the jury, Tedman was providing independent evidence in support of the defence of self-defence. Had that defence succeeded, then he would have been acquitted also since his conviction was of course dependent on the crime being committed by the appellant. For that reason we do not think that it can properly be said that this was a tactical decision of the kind that was referred to in the Hakala case.
33. Third, had he agreed during the course of his original cross-examination that he tailored his story as a result of intimidation and threats, then there could have been no question that the jury would have had to assess his differing accounts in essentially the same way as they did here.
34. The judge's job is to ensure that justice is achieved, but this includes ensuring that the guilty are convicted as well as that the innocent go free. As Mr Lodder QC submitted, judges should not, in these circumstances, be placed in a rigid straitjacket. If the co-accused had not been recalled there was a risk that evidence, perhaps distorted by intimidation, would have undermined the integrity of the trial. There was an evidential basis for believing that intimidation may have occurred here.
35. Whilst Ikram shows that a mere allegation or assertion of intimidation or abuse will not suffice to justify a defendant being recalled, there was here the fact that there was an initial change in account from interview, for no apparent reason, to a fresh account which mirrored that given by the appellant Reid. That provided an evidential basis for the submission being advanced by Tedman that he had been pressured into changing his story. It would have been highly unfortunate if the jury had been left with the apparent volte-face of Tedman unexplained when a potential explanation was to hand. Of course the judge properly recognised that it was for the jury to decide in the light of the shifting account given by Tedman whether they could safely accept anything that he said.
36. Accordingly we think that in what we emphasise are the highly unusual circumstances prevailing here, the judge was entitled to exercise his discretion in the way he did. Nothing in this judgment is intended to cast doubt on the almost universal principle enunciated in Ikram that defendants will not be allowed a second bite of the cherry. Furthermore, we would observe that if the co-accused had sought to have this evidence adduced on appeal by way of seeking to introduce fresh evidence on appeal, very different considerations would arise, as the judge himself noted. It follows that in our view this ground of appeal fails.
37. We also observe that there is no complaint about the way in which the judge dealt with the situation once he had agreed to allow the co-accused to return to the witness box. Mr Katz did raise some concerns about that, but it is not advanced as an independent head of challenge. We think that the judge was right in the very unusual circumstances to allow the application made to him, and he gave the appellant every opportunity to meet the new case.
38. Even if we are wrong in concluding that the judge properly acceded to this application, we would not have upheld this appeal in any event. We do not think that the ruling of the judge rendered the verdict unsafe.
39. Reid's defence rested on self-defence and intent. The jury must have believed him on intent because they found him guilty of manslaughter and not murder. When considering whether or not he was acting in self-defence they did have of course Reid's own evidence, as well as a number of witnesses who described the way in which the attack had taken place. Tedman was only one of a number of witnesses. His evidence was only part of that which the jury had to consider with respect to this incident.
40. Furthermore the jury would be bound to have been suspicious of his evidence, given the inexplicable change of story, and would inevitably have given greater weight to what other witnesses had said, even if he had not gone back into the witness box. Indeed the fact that the jury finally convicted Tedman suggests that they did not believe his evidence in any event. Moreover, the appellant had every opportunity to deal with the shift in Tedman's account and his counsel was able to make submissions about it.
41. In the circumstances, therefore, we do not think that the verdict was unsafe, even if the judge was in error in permitting Tedman's recall. For these reasons this appeal fails.
42. LORD JUSTICE ELIAS: Can I thank you both for your submissions.