England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		25th November 2014

1. THE VICE PRESIDENT: The applicant appeared at the Leeds Crown Court on Monday 26th July 2011, charged with allegations of rape and robbery. He was represented by solicitors and counsel until 1st August 2011, four days before the case was summed up to the jury by the trial judge, His Honour Judge Collier. On that day the applicant withdrew his instructions from counsel and solicitors. He declined the services of fresh solicitor and counsel who attended at court the next day to represent him. He chose to represent himself for what remained of the prosecution case and his defence until his conviction on 8th August 2011 for four offences of rape and two offences of robbery. He gave evidence but he did not make a closing speech. Prosecuting counsel did.
2. The applicant chose to be represented again for the purposes of sentencing, and on 29th September 2011 The Recorder of Leeds, His Honour Judge Collier QC, sentenced him to a term of imprisonment for public protection with a minimum term of eight years.
3. The applicant renews his application for an extension of time of two years and two months for leave to appeal against conviction.
4. A fourth barrister, Mr Weetch, now appears for the applicant. The explanation for the extended period of time required to advance this appeal is that the applicant received negative advice from his original legal representative. He sought a second opinion from his current representatives in May 2012. Funding was granted for that advice in December 2012 and grounds were lodged in December 2013.
5. We do not intend to identify the complainants, but it is important to note that the provisions of the Sexual Offences (Amendment) Act 1992 apply to this application.
6. The facts can be very briefly stated. Counts 1, 2 and 4 concerned the alleged rape and robbery of "C1" on 14th August 2010. Counts 4, 6 and 7 concerned the rape and robbery of "C2" on 16th January 2011. Both complainants were working prostitutes. In each case the applicant raped each orally and vaginally before robbing them of the money he had originally paid them for their services.
7. The grounds of appeal, as advanced by Mr Weetch, focus on the fact that the judge permitted the prosecution to make a closing speech in a case where the accused was unrepresented. In a second ground complaint is made about the fact the applicant was 'prevented' from calling character evidence.

8. First ground: P counsel's closing speech

8. Mr Weetch placed heavy reliance on observations of the court in R v Paul [2013] EWCA Crim 978. There was but one ground of appeal, the same issue as here, the fact that prosecuting counsel had made a closing speech. At paragraph 13 of Paul, MacDuff J, giving the judgment of the court, observed that:

"There is a high responsibility on trial judges and trial counsel to guard against breaching this convention. Although we call it 'a convention', it is in fact something more, and we need to consider the authorities."

The 'convention' to which he referred was the convention of prosecuting counsel not to make a speech where an accused is unrepresented.

9. He then considered the authorities, going back to Mondon 52 Cr App R 695, in which the accused had been unrepresented throughout the trial, yet the prosecution made a closing speech. The conviction in Mondon was quashed.
10. The leading modern authority is Stovell [2006] EWCA Crim 27, in which judgment was given by the then Vice President, Rose LJ. At paragraph 36, the Vice President said this:

"So far as the prosecution's second speech is concerned, in the light of the procedural and evidential changes which have taken place since the decision of this Court in Mondon, we are by no means satisfied that in all cases, particularly when a defendant has been represented substantially throughout the trial and there are issues arising during the defence upon which the jury would be assisted by comment from prosecuting counsel, it is necessarily inappropriate for prosecuting counsel to make a second speech. But it is unnecessary in the present case to reach a conclusion with regard to that matter, because, for the reasons which we have already given, even the old authorities would not, as it seems to us, lead to the quashing of this conviction."

11. Reference is also made in the Paul judgment to the later cases of Rabini [2008] EWCA Crim 2030, and Williams [2011] EWCA Crim 1739 in which the court was prepared to proceed on the basis it had been improper for prosecuting counsel to make a final speech and focussed solely on the question of safety of the conviction. The court in Paul did the same. In Paul the court considered that, despite any breach of a rule or 'convention', the verdicts were safe on the basis that the evidence against the appellant Paul had been overwhelming.
12. For our part, we share the doubts of the court in Paul as to whether there is still any rule that prosecuting counsel may not make a closing speech where the accused is unrepresented. As Rose LJ observed, law and practice has moved on considerably since the days when Mondon was decided. In any event, we are not prepared to contemplate a rule, the effect of which would be to enable an accused deliberately to dispense with the services of his representatives so as to prevent prosecuting counsel making a closing speech in an appropriate case.
13. We prefer to approach the matter as an issue of balance and fairness. It is the overriding duty of any trial judge to ensure that an accused has a fair trial. As part of that duty it would be incumbent upon a trial judge, faced with an unrepresented accused, to assess all the circumstances of the case and decide whether or not it would be fair to allow prosecuting counsel to make a speech.
14. The trial judge here, the Recorder of Leeds, had no doubt that a speech was appropriate. We are not surprised. The accused had been represented throughout the majority of the case, it was his choice to dispense with the services of his lawyers when it suited him and he refused the services of substitute lawyers for the purposes of his trial.
15. We also have no reason to doubt that prosecuting counsel was conscious of his own duties to act fairly and not as somebody attempting to get a conviction at all costs. A judge as experienced as His Honour Judge Collier would himself have been alert to the dangers of counsel straying beyond the proper bounds. Accordingly, we reject the criticisms of Judge Collier and the assertion that the fact of prosecuting counsel making a closing speech has impacted adversely on the fairness of the trial.
16. For the avoidance of doubt, we have considered the overall safety of the conviction. Mr Weetch contended that, unlike in the case of Paul, the evidence here could not be described as overwhelming. He highlighted the fact that the case turned substantially on the evidence of the two complainants: it was mostly their word against that of the appellant.
17. Mr Weetch maintained there were real question marks regarding the credibility of C1 in that there was sufficient evidence to suggest she may have made previous false allegations of rape, she was a drug user and she had admitted to taking heroin and crack cocaine on the day she was allegedly raped. Mr Weetch acknowledged there was some medical and DNA evidence to support her version of events and that of C2, but not enough, he suggested, to amount to a compelling case.
18. We disagree. The evidence of the two complainants, coupled with the scientific and medical evidence, combined to make a powerful case. Two independent women made very similar allegations of violence, forced sexual activity and robbery. Both bore the hallmarks of a beating and samples taken from C1 established the presence of the applicant's semen. C1 picked out the applicant on an identification parade. Blood, hair and an ear-ring from C2 were found in the applicant's car. The applicant admitted that he had had sexual intercourse with two women each of whom made similar allegations against him. In those circumstances, we have no cause to doubt the safety of the conviction on the first ground.

Character evidence

19. The second ground of appeal is based on the applicant's assertion that he wished to call character evidence. We have no statements from possible witnesses; we have no names of any witnesses. Mr Weetch was unable to help us. we cannot assess, therefore, the extent to which they may have assisted the applicant. In any event, when the applicant belatedly raised the question of character evidence, the judge wisely advised the applicant against calling any on the basis the prosecution would then be entitled to adduce evidence as to his past record. The applicant appears to have accepted that advice in that he did not pursue the matter.
20. Mr Weetch complains that the judge should not have given the advice. It was for the applicant to decide whether it was in his best interest to call character evidence. Mr Weetch acknowledged the applicant had previous matters recorded against him and a lawyer may not have advised calling character evidence, but he pointed out that the matters recorded did not relate to sexual offences or offences of robbery. Mr Weetch described them as relatively minor matters which he felt could have been explained satisfactorily to a jury.
21. There are a number of reasons why this ground is unarguable. First, it was the judge's duty to ensure as best he could that the applicant understood the consequences of any decision he took. The introduction of character evidence was likely to be to his detriment. Further, the application came too late and the applicant did not press any application. Finally, the judge's summing-up was a model of fairness and balance. In truth, without character evidence about him, the applicant had the best of all worlds: the jury were informed about the complainants' background but not about what the applicant had done in the past. We doubt the matters recorded would have been as easily explained as Mr Weetch maintained. He had on his record a reprimand for possessing a knife in his car, which in the context of C2's allegation was unfortunate to say the least. She alleged she had been in the applicant's car when he grabbed and threatened with a knife. The applicant had also admitted assaulting a woman for which he had been cautioned. There is, therefore, no cause whatsoever to complain about the judge's advice and the second ground is also rejected.
22. The applicant has made no representations as to why the full court should not direct that some time spent in custody as an applicant should not count towards sentence.
23. We have considered whether or not in the circumstances of this case to make a loss of time order. Given that there has been some doubt about the existence of a rule about prosecuting counsel making a speech, we shall give this applicant the benefit of the doubt and we shall not be making such an order.
24. Indebted as we are to Mr Weetch for his helpful submissions today, these applications, both for leave to appeal and for an extension of time, must be refused.