England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Wolverhampton Crown Court
His Honour Judge Challinor
T20097139/20107030

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/05/2013

Lord Justice Treacy :

1. This is an application by the prosecution for leave to appeal pursuant to Section 58 of the Criminal Justice Act 2003. The decision under appeal is that of His Honour Judge Challinor on 4^th December 2012 at Wolverhampton Crown Court. The judge acceded to an application on behalf of the Respondent to stay the remaining counts on the indictment which the Respondent faced. He did so on the grounds that a continuation of the proceedings would be oppressive and unjust in that a further trial would not be fair to him.
2. The trial which was due to start on 4^th December 2012 would have been the third time the Respondent faced a trial. The Respondent's first trial started in May 2011. The Respondent was one of nine defendants on an indictment alleging a total of forty eight counts concerning the sexual exploitation of seven children or very young adults. Of those counts, the Respondent faced a single count of facilitating child prostitution involving a young woman, HS. He also faced two charges of sexual activity with a 14 year old girl (AL), alleged to have occurred between September 2007 and 2008. The Respondent was 17 at the time those offences were alleged to have been committed. He was 20 when he was arrested in 2010. He is now 23 years of age.
3. After four months of the first trial the jury was discharged at a stage when the Crown's case was still proceeding. The reason for discharge was that an important Crown witness, who had given evidence, told a police officer that she had lied in the course of her evidence. The Crown no longer felt able to rely on her as a witness of truth. This Respondent, amongst others, unsuccessfully urged the court to continue with the trial. By then HS had given evidence against the Respondent, but AL and LR, who provided support for AL's allegations, had not.
4. In November 2011 Flaux J ordered severance of the various defendants on the indictment. This Respondent's retrial was to take place after some of the other defendants. The retrial began early in October 2012 before His Honour Judge Challinor, who was well aware of the background and the preceding trial.
5. By now the indictment had been amended. There was still a single count relating to HS, but two pairs of alternatives relating to AL to cater for some evidential uncertainty as to the Respondent's age at the time of the alleged offence. After a trial lasting about three weeks, the Respondent was acquitted on the count concerning HS, but the jury could not agree on the counts relating to AL, and they were discharged.
6. LR had been called as a potentially supporting witness for AL. At the retrial she departed substantially from the account given in her ABE interviews, and was treated as a hostile witness. By early December 2012, LR had been arrested on suspicion of attempting to pervert the course of justice and perjury in relation to this case, and the Crown had informed the Respondent's representatives that it was not proposed to call her at any subsequent retrial.
7. One side-effect of this was that at the proposed retrial in January 2013, the Respondent would face only two counts relating to AL, as with the removal of LR from the case, the evidential uncertainty about the Respondent's age at the relevant time was removed.
8. On 2^nd November 2012 the Respondent was seen by a general practitioner and diagnosed as suffering from anxiety and depression. He was prescribed medication. He had scored 23/27 on a PH9Q questionnaire designed to assess mental state. The higher the score, the greater the concern. He was seen again on 29^th November 2012. It was recorded that there was no improvement in his symptoms of being withdrawn, not sleeping, and having palpitations and a tight chest. By now his PH9Q score was 26/27. He was referred to the Community Mental Health Team. The opinion of the general practitioner, Dr Choudhury, was that the Respondent was not fit to appear in court at present.
9. On 3^rd December Dr van Woerkom, a Consultant Psychiatrist, saw the Respondent at home. The Respondent was unresponsive to questions. He was described as very withdrawn. His mood appeared depressed and low. There was no inappropriate affect. He was described as effectively mute, driven by a depressive illness. Dr van Woerkom considered whether he was mute of malice, but rejected that, saying that it was due to a moderately severe depressive illness. He was not yet a psychiatric emergency, but he might begin to deteriorate rather more rapidly if he ceased drinking and became dehydrated. The opinion given was that the Respondent was not fit to stand trial at present, and that it would take at least six months before he would be sufficiently recovered to stand trial.
10. In coming to his conclusion, the judge took account of a combination of factors. He referred to the court's inherent power to stay proceedings in order to safeguard a defendant from oppression. He took account of the fact that a retrial would be, for all practical purposes, a third trial of the Respondent, and that this Respondent had been subjected to significant strain and pressure, both in relation to the first trial which attracted wide publicity, and then in relation to the retrial in October 2012. He described the process of prosecution as being "crushing" for this Respondent. He took account of the fact that he was of good character and had been 17 at the time of the alleged offence. It had been conceded by the Crown that he was said to be one of the least involved of the offenders before the court.
11. The judge considered the prosecution's submissions as to the public interest in having an offence of this nature determined by a jury alongside the considerable passage of time and further delay which would be bound to take place, and in a situation where the Respondent had been subject to a tagged curfew and conditional bail for a period approaching three years, nearly the equivalent of an eighteen month sentence. He had regard to the way in which the case against him had changed with the passage of time and to the verdict relating to HS. The Respondent was now no longer accused of being part of a gang preying on young girls. He faced two charges of sexual activity occurring on a single day between himself and AL. The much wider context in which he had originally appeared before the court no longer applied.
12. The judge also had regard to the situation with LR, who was now under investigation, and whom the defence now wished to call as a witness since she had given evidence on the first retrial that AL had told her on more than one occasion that no sexual intercourse had occurred between her and the Respondent. There was a social worker who could also give evidence to similar effect.
13. The judge said that the present case was not of the utmost seriousness; and it was neither a weak case nor a compelling case for the prosecution. There had been a great deal of delay in the case, and as a result of the proceedings the Respondent had become ill. To have a further trial would involve more delay and potentially a further threat to his mental health, the proceedings to date having caused his depression which made him unfit to stand trial.
14. Weighing those various matters and taking account that it was for the defence to establish oppression, the judge concluded that this had been demonstrated. He recognised that it would be a rare case where it could justifiably be said that a further trial would be oppressive and unjust, but he held that this was such a case.
15. The judge's ruling was given after a retirement to consider the position. His judgment itself shows the hallmarks of a reasoned and methodical approach to the issue. The Crown's appeal is not based on any asserted error of law. It is said that the factors found by the judge were insufficient cumulatively or individually to justify the court imposing a permanent stay of proceedings.
16. Section 67 of the Act provides that this court may not reverse a ruling on appeal unless it is satisfied that the ruling was wrong in law, or involved an error of law or principle or that the ruling was not reasonable for the judge to have made. The Crown's assertion is based not on any matter of law or principle, it is said that the ruling was unreasonable.
17. Mr Weekes, in his attractive submissions, took us through the various factors considered by the judge and made criticism of certain of them. He realistically recognised the danger of a "salami-slicing" approach, factor by factor, since the judge's decision was based on an accumulation of all the different factors. Nonetheless he was critical of the ultimate decision, stressing to us the public interest in pursuit of proceedings of this sort, and emphasising that the proposed retrial would be considerably shorter than the two earlier trials.
18. He was particularly critical of the judge's approach to the medical evidence. The Crown had applied for an adjournment so that it could have the Respondent examined and produce its own medical evidence. The judge had declined to do this and proceeded on the material from the general practitioner and the consultant psychiatrist. Mr Weekes argued that the report of Dr van Woerkom was not satisfactory in its methodology, with the result that the judge did not have satisfactory evidence upon which to make an important decision such as a stay of these proceedings.
19. Mr Kershaw's well-focussed response to these submissions was that this judge was familiar with the whole history of these proceedings. He had taken time and care over his decision, and that whilst there might be room for argument about the decision the judge had taken, it could not be said that no reasonable trial judge could have come to this conclusion.
20. Some time was spent in the written submissions of counsel, analysing the history of proceedings and whether or not it mattered that there had only been a single trial in which the jury had disagreed. In our view that argument was somewhat beside the point. What was under consideration was whether to embark on a third trial of this Respondent would in the circumstances which had arisen be oppressive and unjust. That decision did not depend on whether there had been one or two prior jury disagreements. There have been cases where this court has had to consider whether a third trial would be oppressive simply by reason of the fact that a jury had twice previously disagreed, but this is not such a case. There is in fact no principle that a third trial cannot take place after two prior jury disagreements, see R v Bell [2010] EWCA Crim 3. The stringent test which must be applied is set out at paragraph 46 of Bell, but does not arise in this case.
21. The judge considered Bell and cited paragraph 25, in which Lord Judge stated:

"The ultimate question for the judge was whether the interests of justice (which require a fair trial in circumstances which are neither oppressive nor unjust) justified a second retrial."

22. We have considered R v Henworth [2001] EWCA Crim 120. At paragraph 26 Kennedy LJ, having recognised the clear public interest in having a jury decide serious criminal allegations, said this:

"…we recognise the possibility that in any given case a time may come when it would be an abuse of process for the prosecution to try again. Whether that situation arises must depend on the facts of the case which include, first, the overall period of delay and the reasons for the delay; second, the results of previous trials; thirdly, the seriousness of the offence or offences under consideration; and, fourthly, possibly the extent to which the case now to be met has changed from that which was considered in previous trials."

23. It is to be noted that those four matters to be considered are not exclusive. Plainly the circumstances of the offender, his health and the effect of proceedings on his health are relevant considerations, as were other matters alluded to by the judge.
24. We have also noted the decision of the Supreme Court in R v Maxwell [2010] UKSC 48 (a case concerning this court's exercise of its discretion to order a retrial pursuant to Section 7(1) of the Criminal Appeal Act 1968), and in particular the observations of Lord Dyson at paragraph 19 where he said:

"The interests of justice is not a hard-edged concept. A decision as to what the interests of justice requires calls for an exercise of judgment in which a number of relevant factors have to be taken into account and weighed in the balance. In difficult borderline cases, there may be scope for legitimate differences of opinion."

25. It seems to us that the core question in this case relates to the issue of whether a further trial would be oppressive. In this context clearly the medical evidence was of importance. Mr Weekes was critical of Dr van Woerkom's report. However, the diagnosis was supported by that made by two different doctors within the general practice.
26. Moreover, Mr Weekes had put his criticisms of the medical evidence to the judge, who had considered them, and who was entitled to take account of the fact that Dr van Woerkom was "well known to this court as being a well established and highly regarded consultant forensic psychiatrist". His report had clearly considered the question of the genuineness of the Respondent's symptoms, and had come to the conclusion that they were due to a genuine depressive illness, so that the Respondent was not malingering. He was unfit for trial because of that illness and would be so for a considerable time to come.
27. It seems to us that the judge was entitled to rely on this evidence and to decline the prosecution's application for a further investigation in the exercise of his discretion. Some judges might have taken a different course, but we cannot characterise that decision as an unreasonable one. The medical evidence being accepted by the judge, he was entitled in circumstances where this Respondent had suffered from no previous psychiatric difficulties, to attribute it to the effect of the two previous trials of significant length and the prospect of a further trial. That evidence was plainly of considerable importance to the decision as to whether a further trial would be oppressive, and this judge was particularly well-placed to understand and consider all the different factors.
28. Our power under the Act to reverse the ruling is circumscribed by the provision that we should only do so where the judge's decision was not reasonable. It is clear that it is not for us to remake the decision or to substitute our own freshly conceived view of the merits. Our task is much more limited. This court in R v B [2008] EWCA Crim 1144 commented on exactly this issue at paragraph 19:

"When the judge has exercised his discretion or made his judgment for the purposes of and in the course of a criminal trial, the very fact that he has had carefully to balance conflicting considerations will almost inevitably mean that he might reasonably have reached a different, or the opposite conclusion to the one he did reach. Leave to appeal under Section 67 of the 2003 Act will not be given by this court unless it is seriously arguable, not that the discretionary jurisdiction might have been exercised differently, but that it was unreasonable for it to have been exercised in the way that it was….but the mere fact that the judge could reasonably have reached the opposite conclusion to the one he reached, and that he acknowledges that there were valid arguments which might have caused him to do so, does not begin to provide a basis for a success appeal…"

29. In our judgment, the Crown has failed to satisfy us, as it must, that it was not reasonable for the judge to rule as he did. In those circumstances we refuse leave to appeal and we confirm the judge's ruling. In accordance with Section 61(3) we order that the Respondent be acquitted of the offences which are the subject of the appeal.
30. The proceedings against Noshad Hussain having thus been terminated, there can be no objection to a reporting of the proceedings before this court or of this judgment. However, insofar as alleged victims of Hussain's conduct are concerned, namely HS and AL, there must in the usual way be no reporting of a sort which would be capable of revealing their identities.