England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Lewes Crown Court
HHJ Scott-Gall
T20117183
T20117274

		201202953 B3 201202902 B3 201202900 B3 Royal Courts of Justice Strand, London, WC2A 2LL
		13/09/2013

Lord Justice Treacy:

1. This appeal by leave of the Single Judge is concerned with the question of the liability of burglars to be convicted of manslaughter where the death of a property owner occurs during the course of a burglary.
2. On 10^th April 2012 in the Crown Court at Lewes after a lengthy trial these four appellants were convicted of Count 1 – conspiracy to commit burglary, Count 2 – manslaughter and Count 3 – conspiracy to pervert the course of justice. Two other defendants, Leek and Payne, were convicted on Counts 1 and 3. Payne was acquitted on Count 2, manslaughter. The jury could not agree in Leek's case on Count 2; it was then ordered to lie on the file.
3. Terrence and Marcus Bristow, whom the judge regarded as the prime movers, were each sentenced to a total of eleven years imprisonment, made up of six years on Count 1, nine years concurrent on Count 2, and two years consecutive on Count 3. The appellants Delay and Dunn were each sentenced to a total of seven years imprisonment, represented by four years on Count 1, five years concurrent on Count 2, and two years consecutive on Count 3.
4. In the case of the Bristow brothers there is an application for leave to appeal against sentence, essentially on disparity grounds, before the court.

The Offences

5. The deceased, Julian Gardner, ran an off-road vehicle repair business from premises at Bush Barn Farm, Silverhill, East Sussex. At any time a large number of vehicles would be stored there, together with numerous valuable tools and spare parts. Mr Gardner lived on the farm, about a hundred yards from the workshops in a building known as Lower Barn. The workshops lay between the main farmhouse and that building, which was screened by trees.
6. There were certain features of the geography upon which the Crown placed particular reliance in seeking to make its case on manslaughter. The only vehicular access point to the scene was via a secluded track coming off the main A21 road. That track initially passed a residential property near to the junction occupied by a witness, Jean Maddox. Further down the track was the farmhouse, a very substantial property occupied by the mother of the deceased and two lodgers. Still further down that track, towards the workshops, there was the locked metal gate. The burglars in making their way to the workshops where the burglary took place, bypassed the metal gate by driving through a ditch to the side of it in a four wheel drive Cherokee Jeep, which the Crown alleged had been purchased with a view to committing the offence.
7. The only escape route from the scene of the burglary would be via the single track. The burglary would involve the use of heavy vehicles, either brought to and/or removed from the scene, at night in poorly lit conditions, driving from the workshops at the far end of the track. At the workshops, the vehicles would have to manoeuvre in a confined space. Those matters are not in dispute.
8. On leaving the workshops by way of escape, the burglars simply drove into and through the metal gate, in contrast, so the Crown alleged, to the bypassing of the gate on entry which must have been done to avoid arousing the attention of anyone.
9. The primary defence of these appellants was that they were not involved in any burglary on the night in question, and so were not guilty of any count. The Bristow brothers, unlike the other accused, gave evidence to the effect that they had not been at the scene. Clearly those denials and alibis were rejected by the jury, but the question arises as to whether there was sufficient evidence of manslaughter in the case of these appellants to be left to the jury, and whether directions given by the judge in summing-up were appropriate. Those issues were extensively canvassed at trial alongside the primary defence, which was that some other criminal gang must have committed the burglary and allied offences.
10. The Single Judge confined leave to appeal to Count 2, manslaughter. There is no renewed application before us in relation to Counts 1 and 3. We therefore proceed on the basis that these appellants were guilty of those offences. In relation to Count 1, conspiracy to burgle, the judge had specifically directed the jury only to convict a defendant if he was present and participating in the burglary.
11. The burglary at the workshops took place on the night of 10^th to 11^th October 2010. It is clear that a team of at least six burglars was involved. They arrived in at least two vehicles and left in a minimum of three vehicles, the third vehicle being a Land Rover taken from the workshops. It is clear that a number of events took place simultaneously during the course of the burglary. They included trying to force a strong room containing expensive tools, moving two Land Rovers and a trailer, loading a trailer with quad bikes removed from a storage container, and moving tyres from a workshop. The overwhelming likelihood is that Mr Gardner intervened while the burglary was taking place.
12. His body was found by a friend the following morning on the forecourt outside the workshops. The post mortem showed very extensive injuries, including fractures of the pelvic bone, both cheekbones, both jaws, a number of ribs, a vertebra in the neck, and an extensive skull fracture. The pathologist's conclusion was that death had been caused by the deceased being struck and/or run over by one or more of the motor vehicles at the scene. DNA in a blood stain found on a wing mirror from the Cherokee Jeep matched that of the deceased, and glass recovered from his head was consistent with having come from the same vehicle.
13. Mr Hill, a forensic examiner, also found evidence at the scene consistent with a collision between the jeep and Mr Gardner's Land Rover, and signs of dragging on the body more likely to have been caused by the Land Rover than the Jeep. He was not able to identify a definitive scenario leading to Mr Gardner's death. He could not say which of the two vehicles, or indeed whether a combination of them, had caused death. However, his evidence taken together with that of the pathologist, attributed death to a collision as the most likely scenario. The pathologist suggested that there were two impacts: one when Mr Gardner was standing and knocked to the ground (the fractured neck vertebra indicated this), and the second when a vehicle passed over him whilst he was on the ground. All the injuries could possibly have been caused by one vehicle, but it could not be ruled out that they had been caused by two. The evidence showed that the Land Rover and the Cherokee Jeep were the only two vehicles to leave the workshop area.
14. There was no evidence as to who was the driver of either vehicle or indeed as to who was an occupant of either vehicle at the time of the fatal incident. There was no eye witness evidence, and the defence involved a complete denial of presence at the scene.
15. As already indicated, there was sufficient evidence against each appellant to implicate him in the burglary by being present at it, and also in the cover up which took place immediately after the escape from the farm by burning out vehicles and stealing a lorry.

The Crown's Case

16. The prosecution case on Count 2 was one of unlawful act manslaughter. The unlawful act was alleged to be the burglary of the farm, which was committed as a joint enterprise. Although the Crown could not say who was driving the vehicle or vehicles that had struck Mr Gardner, they asserted that each appellant took part in the burglary and in doing so, in the particular circumstances, foresaw a real possibility that somebody intervening at the scene might suffer harm as a result of the carrying out of the burglary, including harm caused during their escape from the scene. The presence of residential farm buildings would have alerted the appellants to the risk of being caught in the act of burglary, which would result in the need to escape promptly from the scene in vehicles along the single track.
17. In those circumstances a reasonable bystander would, the Crown submitted, recognise the risk of some harm being caused to a person intervening at night, in the dark, in a relatively confined space, where powerful vehicles were involved, and there was only one route of escape from the workshops. In this context, it is worth recording that the jury went on a view of the scene as well as having many still images provided.

The Judge's ruling and directions

18. At the close of the Crown's case submissions of no case to answer were made to the judge. He rejected them, holding that there was sufficient evidence to go to the jury. In so holding, he held that there was sufficient evidence for the jury to find that the burglary was carefully planned and that there must have been a reconnaissance which had enabled the burglars on the night promptly to find items of value in different places. The burglary could be regarded as an ongoing offence at the time of Mr Gardner's appearance on the scene, and a jury could safely conclude that the burglars, on being confronted, shared an immediate intention to escape as planned. A jury could conclude that if necessary the escape should be achieved at speed and with determination irrespective of any obstacle. In the circumstances there was a risk of harm being caused to a person trying to intervene or prevent escape.
19. At that stage the judge was considering that it was open to the jury to conclude that that was in the mind of each member of the team; a test in fact more favourable to the appellants than that required by law. Accordingly, the submissions were rejected.
20. When the judge came to sum up, he assisted the jury by providing a steps to verdict document which represented his core directions. It was in these terms:

"Steps to Verdict

Counts 1 & 2:

1. Are you sure that the defendant whose case you are considering was present at Bush Barn Farm and took part in the burglary?

If yes guilty on Count 1, and go on to consider question 2.

If no, Not guilty of either Count 1 or Count 2.

2. Are you sure that the burglary was a 'dangerous act?' In the circumstances of this case, this means you must be sure in relation to the defendant whose case you are considering:

A) That prior to embarking upon the burglary, he foresaw or contemplated the possibility that someone might try to intervene in order to prevent or stop the burglary or prevent their escape

AND

B) Prior to the burglary taking place, all sober and reasonable people would inevitably have recognised that such intervention must subject such a person to the risk of some physical harm resulting from the burglary and/or escape

AND

C) Julian Gardner did indeed get hurt in those circumstances and as a result died from his injuries.

If Yes, go on to consider Question 3.

If no, Not guilty of Count 2.

3. Are you sure that the manner in which the injuries were sustained, from which Julian Gardner died, was within the contemplation of all those involved (i.e not a freak accident)

If Yes, go on to consider Question 4.

If no, Not guilty of Count 2.

4. Are you sure that the person who actually caused the injuries to Julian Gardner, from which he died, was acting within the scope of what had been foreseen or contemplated by the defendant whose case you are considering and had not gone beyond the scope of what had been foreseen or contemplated?

If Yes, guilty of Count 2.

If no, not guilty."

Mr Nelson's argument

21. At the hearing before us Mr Nelson QC represented Marcus Bristow, Lee Delay and Paul Dunn. He presented an argument common to all three of them. Terrence Bristow had previously dispensed with Mr Nelson's services and represented himself on appeal. We treat the arguments made by Mr Nelson as applying also in the case of Terrence Bristow, the reality being that all four appellants' cases stood or fell together in relation to the points taken. As will be seen, we permitted Terrence Bristow to present a series of discrete points to us in additional support of his own appeal.
22. At the start of his submissions Mr Nelson conceded that on reflection he would not pursue a point in his written grounds that by the time of the fatal incident, the offence of burglary was complete, and that what had happened could not be said to be part of the burglary. Thus he conceded that the unlawful act of burglary was still proceeding at the time when the fatal incident took place.
23. We consider that this concession was realistically made. The evidence clearly demonstrated that the burglars had been interrupted. It would have been pure sophistry to argue that the burglary was complete once the burglars entered the workshops with intent to steal. The venture was plainly a continuing one as Mr Gardner's Land Rover and other property were removed from the premises after the fatal collision. Moreover, R v Watson [1989] 89 Cr App R 211 and R v Willet & Willet [2010] EWCA Crim 1620 (at paragraph 33) support such an analysis. In our view, escape from burgled premises can often be viewed as part and parcel of the crime.
24. Mr Nelson also no longer relied on a submission that the actions of the deceased in intervening in the burglary represented activity which broke the chain of causation. Again, we consider that this concession was realistically made.
25. Whilst accepting that the precise mechanism by which Mr Gardner met his death was not strictly relevant to the issues before the court, he argued that it was critical that there was no evidence as to who had been the driver of either vehicle or who had been present in or by those vehicles at the time of the fatal incident. That being so, the court should approach the matter on the basis of considering each defendant as a secondary party who might not even have been present in, or with, the vehicles at the relevant time. The judge, we observe, in summing-up had treated all defendants as secondary parties in relation to the allegation of manslaughter in the absence of evidence as to who was the driver or of positive encouragement to the driver by any other person.
26. Mr Nelson argued that the arrival of Mr Gardner did not render the burglary dangerous in the sense contemplated in R v Church [1965] 49 Cr App R 206. It was what happened after that point that mattered; no reasonable jury could conclude that the burglary was dangerous in the Church sense until after Mr Gardner had appeared and a defendant began driving a vehicle. The judge had been wrong to focus on the risk of harm prior to the burglary. The burglary had not become dangerous until the later stage identified by Mr Nelson, by which point the presence of others would be insufficient to render them liable for manslaughter as it would be speculative to assume at that point that any defendant had encouraged the driver or drivers or foresaw that driving of a dangerous sort would take place at that point. It was, said Mr Nelson, at least as likely that the defendants thought that they would be able to drive off from the burglary undisturbed.
27. In support of his argument Mr Nelson referred to Watson and R v Dawson [1985] 81 Cr App R 150. Those are well known decisions considering liability for manslaughter where an occupier of premises apparently dies of shock induced by the burglary or robbery. He submitted that they demonstrate that a burglary or robbery did not become dangerous until the offender acquires knowledge representing evidence of a risk of physical harm. He submitted that, by analogy, this burglary did not become dangerous until the point he had identified. In those circumstances the offence did not become dangerous until a car began to be driven dangerously, and since there was no evidence that any appellant was inside any offending vehicle or was encouraging the driving, there was no case to go to a jury. Once the case was left to the jury, the direction given was a misdirection. It should have focussed on the point when Mr Gardner arrived and a car or cars started to drive.
28. In addition, Mr Nelson submitted that if the driver of a vehicle, in seeking to escape, drove with an intention to kill or do grievous bodily harm, that went outside the scope of the joint enterprise so that the other appellants could not in any event be found guilty. In summing-up the judge had told the jury that if a defendant instead of trying to escape drove deliberately and needlessly out of his way intending to run down and kill Mr Gardner, that would be outside the scope of a joint venture, he had misdirected the jury because that exception only applied if the driver was not trying to escape.

The Crown's Response

29. Ms Laing QC, for the Crown, maintained that the Crown's approach and the judge's ruling and directions in summing-up were appropriate in the circumstances of this particular burglary. She was not seeking to suggest that what applied in this case would necessarily apply to every burglary or every escape from a burglary. In the case of this crime the risk was obvious from the outset of the burglary because of the nature of the premises and their geography (including means of access and egress), and because of the means by which the burglary was to be carried out. It made no difference whether Mr Gardner was hit by a vehicle or vehicles part way through the burglary or as the burglars made their escape from the workshops.
30. In the circumstances there was a clear possibility of intervention by someone living in the residential part of the farm, and the circumstances were such that a jury could find that a risk of danger of causing some injury was created. It did not matter who was the driver on the night in question, the use of vehicles in connection with the burglary was an integral part of the burglary. The judge was correct to hold that a jury could be sure that the appellants foresaw the possibility of intervention and that a reasonable bystander would have recognised that the situation was potentially dangerous, at least to the extent of some physical harm being caused to a person intervening.
31. The court had to look at the scope of the enterprise which the appellants had joined. It was the risk of intervention, the use of vehicles and the nature and geography of the site that made the burglary dangerous. The jury needed to focus on whether a burglary in those circumstances was dangerous from the outset. In the circumstances it could not be said that this burglary only became dangerous at a point after Mr Gardner appeared. The jury had properly been enabled to consider the sort of point that Mr Nelson had made, but, she argued, the judge's directions had accurately set out the steps to verdict.

Discussion

32. The crime of unlawful act manslaughter comprises (a) an unlawful act intentionally performed (b) in circumstances rendering it a dangerous act (c) causing death.
33. The test as to what is a dangerous act is that propounded in R v Church [1966] 1 QB 59 and approved by the House of Lords in DPP v Newbury [1976] 62 Cr App R 291.

"An unlawful act causing the death of another cannot, simply because it is an unlawful act, render a manslaughter verdict inevitable. For such a verdict inexorably to follow, the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting there from albeit not serious harm."

34. This is not a case like Dawson or Watson where the circumstances demonstrating the risk of harm to the occupier of property did not arise until a point during the burglary or at all. Whilst burglary of itself is not a dangerous crime, a particular burglary may be dangerous because of the circumstances surrounding its commission. We consider that the features identified by the Crown, as set out earlier in this judgment, were capable of making this burglary dangerous when coupled with foresight of the risk of intervention to prevent escape.
35. In those circumstances we consider that the features of this crime were sufficient for the burglary to be capable of being an unlawful act which a reasonable bystander would inevitably realise must subject any person intervening to the risk of some harm resulting. In passing we observe that in R v JM & SM [2012] EWCA Crim 2293 Lord Judge CJ ruled out any requirement that the reasonable bystander must also realise that there was a risk that the unlawful act would cause the sort of physical harm as a result of which the victim died.
36. Mr Gardner died because the pre-existing risk came to pass when he foreseeably intervened and suffered fatal injury as a result of the appellants seeking to make their escape as part of the burglary. The concession made by Mr Nelson that the burglary was a continuing offence at the time that Mr Gardner met his death was not only correct, but important. It means that the focus of the court's attention was on the crime of burglary and those who were participants in it. The factual questions for the jury, given that the appellants were involved in the unlawful act of burglary, were whether each appellant foresaw the risk of intervention by a third party, and whether the reasonable bystander would consider the venture dangerous in the Church sense.
37. Since the crime to be focussed on was the burglary, we reject Mr Nelson's submission as to the point at which foresight and danger were to be assessed. We consider that on the facts of this case the judge was correct to focus the jury's attention on the period up to the inception of the burglary. It is that question which lies at the very heart of the submissions made on behalf of the appellants, namely the point in time at which foresight and recognition of danger arose. What needed to be considered was the foresight of the participants as they embarked upon the crime, and what, if anything a reasonable bystander would inevitably have recognised as a risk of physical harm to any person intervening.
38. The judge's conclusion after the half time submission was:

"…the jury could safely conclude that the team, on being confronted by JG, shared an immediate intention to get away, as planned, and carried that intention forward. It is open for the jury therefore, to conclude that each burglar intended the vehicular escape, should it arise in those circumstances, that that escape should be achieved at speed and with determination and, if necessary with no respect for property or person that might get in the way. On the evidence it is open for the jury to conclude that that intention was in the mind of each member of the team, each having the foresight to realise the risk of harm to a person who was trying to prevent the escape."

39. Although those observations essentially conflate the role of the reasonable bystander and that of a burglar, it does not do any injustice to the appellants, (nor was it contended that it did). We are satisfied that the judge's ruling that there was a case to answer was correct.
40. Turning to the judge's directions in summing-up, the same result must follow in the light of our rejection of Mr Nelson's argument as to the point in time at which the matter should be analysed. For the reasons given above, we are satisfied that the judge's directions in steps 2A and 2B (see paragraph 20 above) that the jury should focus on a point prior to the inception of the burglary were correct.
41. As to Mr Nelson's additional point relating to an asserted misdirection concerning a driver who in the course of escape drove the vehicle with murderous intent, we reject it. The decisions of this court in R v Carpenter [2011] EWCA Crim 2568 (a case of manslaughter), and of the House of Lords in R v Rahman & Others [2009] 1 Cr App R 1 (a case of murder), demonstrate that the test of an accessory's liability is one of foresight, namely foresight of what the principal might do, rather than foresight of the intention with which the principal might perform such acts. Accordingly, the argument advanced by Mr Nelson against conviction must fail in the case of all appellants, including Terrence Bristow, who is equally affected by it.
42. There was a faint submission in the written materials suggesting that the directions given to the jury were confusing. Having considered the summing-up and the steps to verdict document, we disagree. Indeed we note that the defendant Payne was acquitted on Count 2. His case is of some interest in this context because evidence had been given on his behalf of a previous head injury which had left him with a continuing cognitive deficit which left him with impaired memory and ability to consider the consequences of actions.
43. The verdict in his case suggests strongly to us that the jury in considering Payne's case must have followed step 2A of the steps to verdict document faithfully. If that be right, it is a powerful rebuttal of any suggestion of scope for confusion.

Terrence Bristow's Separate Points

44. Mr Bristow sought to raise a series of points in support of an application against conviction. They had not been raised previously on his behalf and no notice of them had been given to the court or the Crown. Nonetheless we permitted Mr Bristow to advance his points.
45. Put briefly they involved allegations that a police officer had lied in relation to checks made into other crimes or another individual; phone records had been wrongly altered; the involvement of Kent Police had been suppressed at trial; the purchase of a similar crowbar to one used in the crime had not been properly in evidence; there was a general conspiracy to convict Mr Bristow; he had not been adequately represented; the forensic scientific evidence needed to be reconsidered; he had not had a fair trial.
46. We can summarise matters by saying that many of the matters complained of represented generalisations with no underlying supporting evidence or else they raised matters which the Crown was satisfactorily able to explain even at short notice, or they represented information available at trial, or were irrelevant to Count 2. Neither individually or cumulatively could any of the matters raised by Terrence Bristow begin to provide proper grounds for an appeal, and we reject them.
47. These appeals against conviction for manslaughter are dismissed.

Applications concerning Sentence

48. The applications for both Bristow brothers to appeal against their sentences were referred to the Full Court by the Single Judge. We grant permission.
49. It is important to note that the sentencing judge was a highly experienced trial judge who had dealt with this case over many weeks, and who had seen both Bristow brothers give what the jury must have found to be perjured evidence. The judge found that the two brothers were the prime movers in this criminal enterprise.
50. Terrence Bristow is 43. He has very many convictions, some sixty-six offences recorded on thirty-four occasions. The judge described him as a determined and persistent re-offender whom he regarded as of irrevocable bad character. Marcus Bristow is 33. He has been convicted of twenty offences on eleven previous occasions. His convictions include three cases of non-domestic burglary, as well as other offences of dishonesty. The judge noted that although he was more lightly convicted than his brother, he had been involved in more burglaries, and there was a clear and continuing pattern of dishonesty. The judge regarded their records as increasing the seriousness of the offences and noted that neither had shown any remorse whatsoever.
51. Mr Fitzgerald submitted that because the Bristows fell to be sentenced as secondary parties since the Crown could not say who drove the vehicles responsible for Mr Gardner's death, a sentence of nine years was too long for Count 2. Moreover, there was an unjustifiable disparity with the sentences of five years imposed upon Delay and Paul Dunn, even taking account of the Bristows' greater role and worse criminal records.
52. Mr Fitzgerald argued that the Bristows received fifty percent more for the manslaughter than they did for the burglary, whereas Delay and Paul Dunn received twenty-five percent more. He submitted that there was no justification for the difference. In addition, although it was accepted that in principle the judge was entitled to pass a consecutive sentence in respect of Count 3, it was argued that a sentence of two years was too long. Moreover, in relation to Count 3, the judge had imposed a longer sentence on some defendants than on others (Leek, Paul Dunn and Payne whose sentence was made concurrent).
53. It was also submitted on behalf of Marcus Bristow that he should have had a lesser sentence than his brother since he has fewer previous convictions.
54. The only ground which we regard as having any substance relates to the apparent discrepancy between the manslaughter sentences imposed on the Bristows on the one hand and those on Delay and Paul Dunn on the other. True it is that the facts relating to the offences were the same for all four defendants as secondary parties in a joint enterprise. However, there are significant differentiating features in that the Bristows were the prime movers and by reason of their criminal records which were regarded as a serious aggravating feature. Delay and Paul Dunn were much less heavily convicted and the judge did not regard their previous convictions as increasing the gravity of the offences.
55. What has to be looked at is the totality of the offending which led the judge to arrive at a sentence of nine years when passing concurrent sentences for the manslaughter and the burglary. It was the Bristows who were the prime movers in a burglary which was dangerous, carried a risk of harm, and ultimately resulted in a death. It is clear from the authorities that nine years is not an excessive sentence for offending of this seriousness. There was a marked difference in the role and records of the Bristows and the others. As prime movers they must bear primary responsibility for the tragic consequences of the enterprise.
56. In all the circumstances we are unpersuaded that the disparity was so great as to warrant intervention by this court. An appropriate overall sentence was passed. It maybe that the judge was slightly generous to Paul Dunn and Delay, but he had an opportunity to assess them in a way denied to us.
57. As to the sentence on Count 3, this was a serious case of conspiracy to pervert the course of justice. The appellants were seeking to cover up a substantial planned burglary, grossly aggravated by conduct which had left an innocent man dead. As the judge observed, the defendants realised the consequences of the burglary, namely that they had unlawfully killed a person at the scene, and they had done their very best to destroy any evidence that would link them to that offence. There was nothing at all wrong with the two year term imposed consecutively on the Bristow brothers.
58. As to lesser terms imposed on some of the others, Leek was not convicted on Count 2, and had been treated at trial as a person of positive good character. Payne was acquitted on Count 2 and was still suffering from the effects of a serious head injury sustained in a car crash, and Terrence Dunn was only indicted on Count 3, so that he was not involved in Counts 1 and 2. In our judgment, the lesser sentences imposed on these defendants in relation to Count 3 were entirely within the proper discretion of the judge.
59. For these reasons we dismiss the appeals against sentence.