England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
His Honour Judge Worsley QC
The Central Criminal Court

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/04/2015

Lord Justice Burnett :

1. At the conclusion of the hearing of this appeal we indicated that the appeal would be dismissed. These are our reasons for doing so.
2. The appellant, Emma Jayne Hall, was one of six co-accused who were indicted for the murder of Luke Harwood and other offences surrounding his death. They were tried at the Central Criminal Court before His Honour Judge Worsley QC and a jury between January and April 2013. On 17 April 2013 the appellant was convicted of murder. She was sentenced to imprisonment for life with a minimum term of fifteen years, subsequently increased to seventeen years on an Attorney-General's reference to this court. This is her appeal against conviction brought with leave of the full court on a single ground. It arises out of the treatment of the solicitor's attendance notes disclosed by her co-accused, Tony O'Toole, of the content of privileged conversations they had prior to his being interviewed by the police. The purpose of their disclosure was to rebut a suggestion of late fabrication in connection with small parts of his evidence. The solicitor was called by O'Toole for that purpose. The judge restricted the use of the attendance notes. He ruled that the solicitor could be asked questions relating only to the discrete topics which had been suggested were late fabrications, rather than allowing counsel for the appellant to range more widely through them in cross-examining the solicitor.
3. In addition to Tony O'Toole, the other co-accused were James Danby, Jovan Roberts, Billy Duggan and Khalid Hassan. The appellant, Danby, O'Toole and Roberts were charged with murder. Additionally they were charged with causing Luke Harwood grievous bodily harm with intent. The appellant, Danby, O'Toole and Duggan were charged with perverting the course of justice by burning Luke Harwood's clothing and belongings after he had been killed. The appellant, Danby, O'Toole, Duggan and Hassan were charged with conspiracy to pervert the course of justice by returning to the body with a view to dismembering it. We set out below in a table the details of the convictions that followed.

	Murder	GBH with Intent	Perverting the Course of Justice	Conspiracy to Pervert the Course of Justice
Appellant (Hall)	Guilty	Guilty	Guilty	Not Guilty
Danby	Guilty	Guilty	Guilty	Guilty
O'Toole	Guilty	Not Guilty	Guilty	Guilty
Duggan			Guilty	Guilty
Roberts	Not Guilty	Not Guilty
Hassan				Not Guilty

4. The appellant and her five co-accused lived at 72, Crow Lane, Romford. In was accommodation provided to them as homeless people. On 27 May 2012 Luke Harwood moved into that accommodation. On the evening on which he moved in, the appellant, Danby, O'Toole and Roberts were in the appellant's room with her younger sister, Alice Hall. Alice Hall had been staying for a few days. Luke Harwood walked past the door of the room. Alice Hall recognised him. Two years earlier she had made an allegation of rape against him which, following investigation by the police, was found to have no substance. Be that as it may, the evidence suggested that Alice Hall became upset and indicated the position to the appellant. The Crown's case was that the appellant was aware of the earlier allegation, although she denied that she knew who Luke was. There was also an issue about whether she or Alice told others, and in particular Danby, about it that evening.
5. Whatever may have been the precise chronology relating to knowledge of the allegation, Luke Harwood was brutally attacked and suffered serious injury within the house. Danby was the leading player in the attack. The Crown's case was that others were involved directly in the violence but put the case as a joint enterprise. It was these events that gave rise to the grievous bodily harm count on the indictment.
6. Having been severely beaten up, Luke Harwood was taken to the appellant's car. She drove him, together with Danby and O'Toole, to Woodford Green. She remained in the car whilst they took him to a secluded area near a stream. They killed him by beating him and stamping upon him. They left his body at the site roughly concealed by a mattress. They returned to the car and the appellant drove them back to 72, Crow Lane. Alice Hall had remained there. Various items of Luke Harwood's clothing and belongings were placed into the appellant's car. She drove the same group to a petrol station where they filled a canister with petrol. She drove them to a secluded country location where his belongings and clothing were burned. Once more they returned to 72, Crow Lane. Attempts were made to clean up Luke Harwood's room which was significantly blood-stained. The following day the appellant told her friend, Leanda Kelly, something of the attack on Luke Harwood. She admitted having punched him and that two of her housemates had to pull her off him. Leanda Kelly noticed grazes to the appellant's right knuckle.
7. That evening the appellant and other co-accused discussed going back to the site where Luke Harwood's body had been left and also the possibility that one of their number would "break" and give the game away. The appellant sent texts to a friend indicating that she was going to check on the body (using slang) and also indicating that someone had "sorted it", meaning killed him.
8. The appellant, Danby, O'Toole, Duggan and Hassan then went together in the appellant's car back to where Luke Harwood's body had been left. They decided to return again later to render the body unrecognisable. It was between those two visits that the appellant telephoned the police. She informed them of the killing in a way that was wholly exculpatory of her involvement in the events. She indicated that the group was returning to the scene. That they did with equipment to enable the body to be dismembered. All of that group were arrested there.
9. In her interviews the appellant lied about her own involvement in what had occurred. For example, she omitted to mention that she had been present when Luke Harwood had been attacked at 72, Crow Lane. At the time of these events she and O'Toole had been going out together. She lied about his involvement and heaped blame upon Danby, in particular.
10. At trial each of the defendants blamed the others. This was a classic case of "cut-throat" defences. The appellant's evidence incriminated Danby, O'Toole, Roberts and Duggan. She denied personal involvement in any of the violence inflicted upon Luke Harwood and denied any intention that he should be harmed. Her explanation for driving to and from Woodford Green and elsewhere on all the occasions was that she was forced by Danby to do so. Alice Hall gave evidence over the course of four days. Her evidence was deeply incriminating of her sister, the appellant. Alice Hall had said in her evidence that when she saw Luke Harwood and became upset the appellant "was fucking raving" and said "I'm going to fucking kill him" or "I'm going to kill the cunt". Danby gave similar evidence.
11. The appellant denied using that language or language to that effect at the outset of the events which led to Luke Harwood's murder. We note that the prosecution did not suggest that the words used evidenced an intention on the appellant's part to kill Luke Harwood. Rather, they evidenced her animus and willingness to cause him harm. The appellant was cross-examined by the Crown and on behalf of Danby about her use of those words. No questions were asked of her by counsel acting for O'Toole on that matter.
12. In the course of his evidence, O'Toole also said that the appellant had uttered those words at the outset. He also described in his evidence what happened after Luke Harwood's clothes had been burned. He indicated that he had asked the appellant whether she was alright. Her reply was "I'm OK, I'm a cold-hearted bitch anyway". That too had not been put to the appellant on behalf of O'Toole.
13. During the course of cross-examination of O'Toole on behalf of other co-accused, it was suggested to him that this aspect of his evidence was a late invention as were other aspects damaging to the cases of his co-accused. The parties had available to them an account from Mr O'Toole. He was interviewed twice. At the first interview he gave an outline account and at the second gave more details.
14. In answer to his own counsel in re-examination Mr O'Toole repeatedly said that the matter in issue was not a late fabrication (or adoption of someone else's evidence). He said that he had mentioned those matters to his solicitor.
15. His evidence came to an end. The next day his solicitor was called to deal with that issue. In anticipation of calling the solicitor, copies of the "Police Station Attendance Record" for both 29 May 2012 and 30 May 2012 were disclosed in their entirety to the Crown and all other co-accused. The document is a pro forma enabling all sorts of information and advice to be recorded. A section of the form is headed "instructions from client" and provides the space which enables the solicitor to record the client's account of events.
16. The judge was asked to rule on the scope of questioning that would be allowed of O'Toole's solicitor and also whether the evidence of anything said by O'Toole to the solicitor should be evidence of its truth or only evidence which went to O'Toole's credibility.
17. The Crown and various of the co-accused, including this appellant, argued that in disclosing the attendance notes in full, O'Toole had waived legal professional privilege in all their content. The judge concluded that despite providing the whole of the attendance notes, they were disclosed only for the purpose of establishing his consistency in his account of the various discrete disputed matters, including the two observations attributed by him to the appellant. In those circumstances, the judge ruled against the parties' application to enable them to cross-examine his solicitor for the purpose of eliciting any and all different accounts that there may be as compared with O'Toole's evidence in court. Mr Hill QC, who appeared at the trial as he does before us on behalf of the appellant, was recorded by the judge as advancing the following submissions:

"… Mr Hill submits that the police attendance records for 29 and 30 May in respect of Mr O'Toole's solicitors now having been disclosed to all parties in unredacted form, that in effect is open season and that it would be fair and appropriate for there to be cross-examination on all aspects of inconsistency revealed in those records.

Mr Hill says whether the court is with him or against him on those submissions that, in any event the jury should be told that that which solicitors say was communicated to them by Mr O'Toole is not the truth of what in fact happened or was said. It is simply the fact he has said it on an earlier occasion. It goes to consistency."

18. The judge accepted the last of those submissions from Mr Hill and gave the jury an appropriate direction in the course of his summing up.
19. It was common ground between the parties to the appeal that two issues fall to be considered:

i) Was the judge right to conclude that the waiver of legal professional privilege was limited for the purposes of establishing consistency between the oral evidence of O'Toole in a number of limited respects and the other accounts already in evidence?

ii) If it was not, did the appellant's inability to range more widely in cross-examining O'Toole's solicitor have any bearing on the safety of the conviction?

Issue 1 – the extent of waiver of privilege

20. It was common ground before us that the disclosure in full of the content of the attendance notes resulted in O'Toole waiving legal professional privilege in respect of everything found within them. That is not to say that legal professional privilege was waived in respect of any other communications between O'Toole and his solicitor, whether relating to the account of events given to the solicitor by O'Toole or advice given by the solicitor.
21. It is not uncommon in criminal trials for a defendant to assert, when it is suggested that his evidence is a recent fabrication, that he had earlier given a similar account to his legal advisors. Equally commonly, a defendant may give as an explanation for not answering questions at interview that he was advised not to by his solicitor and why. In giving that explanation, a defendant waives privilege in the communications in question. The practical implications arising in connection with such issues were fully discussed in the judgment of Hughes LJ in R v Seaton [2010] EWCA Crim 1980 : [2011] 1 Cr App Rep 2. A question necessarily arises in such cases concerning the extent of the waiver of privilege. Often, difficulties also arise about the extent to which a defendant may be questioned to ensure that a false picture is not presented.
22. In this case it would have been possible for O'Toole's solicitor to be called to give evidence and asked a series of discrete questions relating to the individual pieces of his evidence which it was suggested had been late fabrications. For example, as affects the appellant, the solicitor could have been asked whether O'Toole had given an account of anything said by the appellant at the relevant times and if so what that account was. However that was not the course followed. Instead, the attendance notes containing a more extended account from O'Toole were disclosed. In accordance with ordinary principles of waiver of legal professional privilege, summarised in paragraph 43 of the judgment in Seaton, privilege was undoubtedly waived in respect of the whole content of the attendance notes.
23. It follows, in our judgment, that the judge's conclusion that the waiver of privilege attached only to and discussion of the relatively few items of evidence upon which O'Toole had been challenged was in error. Thus, to arguments about the fairness to individual defendants of allowing wider cross-examination, to the extent that the attendance notes might have revealed inconsistencies in O'Toole's evidence, we consider that the co-accused could have explored those inconsistencies with O'Toole's solicitor.

Issue 2 – The effect of limiting cross-examination

24. Mr Hill has identified with particularity those parts of the notes which he wished to elicit from the solicitor. So far as the notes of 29 May 2012 are concerned, he points to the following passage:

"Sister was living there – she said to [Danby] that the boy had touched her when she was younger – I was sitting in the room when I heard this – I met him about two months ago he has not left.

26/27 years old – this [conversation] was in [the appellant's] bedroom – [my girlfriend] – total of five people three were women – Sarah [who left] [the appellant] Alice the sister – and [Roberts] – lives in area but not in our complex –

[Danby] was in room – he walked out into boys room – [Danby] is a head case – he [word indecipherable] in – first time Alice had actually been round – Harold Hill area is where she said she knew boy [possibly called Luke] – literally next door – he and [Roberts] started attacking the boy – everyone in the house."

25. Mr Hill contrasts that with the note made by the solicitor of what O'Toole said in interview a little later that day:

"Sunday – [Danby] drinking – boy came round at 9.30pm – recognised him as person who she made allegation against two years ago – Emma said what's wrong. [Danby] came in asking what was wrong. Present when this was going on – aware that Luke sexually assaulted her."

A complete account of that interview was before the jury. It was the appellant's case at trial that her sister, Alice, had made an allegation about Luke Harwood in the presence of the men, particularly Danby. Alice denied making any specific allegation at all. Thus, submits Mr Hill, O'Toole's initial account supports the appellant's case.

26. The notes for 30 May confirm the two observations attributed to the appellant by O'Toole during his evidence, albeit that the reference to her going to kill Luke Harwood is not accompanied by the expletive. Nothing turns on that difference. The general account given to his solicitor starts in this way:

"Me, [the appellant], Alice, [Roberts and Danby] and Sarah were in [the appellant's] room. I was on the laptop and we were chatting but [Danby] was drinking beer.

Luke was just moving into the property. It was his first day there when Alice who had been there since the Saturday night saw him. And became upset. She said oh my God, that's him, Emma said what, I'm gonna kill him. Emma was going out to confront him and [Roberts] held her back and asked what that was about. [The appellant] pulled away and went out. [Danby] followed her out. Emma told [Danby] only what it was about."

27. Mr Hill draws a contrast with the detail in the earlier privileged account we have set out.
28. It became apparent in the course of the submissions being advanced on behalf of the appellant, that the argument no longer related to a wish to expose inconsistencies between the various accounts given by O'Toole in his interviews, the instructions to his solicitor and his evidence. Rather, Mr Hill was seeking to rely on a handful of phrases in the course of relatively lengthy explanations as positively supporting the account given by the appellant of the circumstances in which individuals became aware of Alice Hall's underlying allegation. That would require the hearsay evidence of what O'Toole told his solicitor to have been admitted as evidence of its truth.
29. In our judgment, there was no possibility of that happening at this trial. No application was made on behalf of the appellant to recall O'Toole. Neither was any application made to admit the evidence as hearsay evidence for all purposes, as opposed to evidence of consistency and thus credibility. It was Mr Hill's submission before the judge that the evidence should not be available to the jury for any purpose other than to raise questions about the consistency of O'Toole's account. One can well see why. Aspects of the account given by O'Toole to his solicitor were deeply damaging not only to the appellant but also to the other co-accused. No feasible mechanism for admitting any of this evidence as evidence of its truth was identified in argument. We accept the submission on behalf of the Crown advanced by Mr Denison QC that the attempt in these proceedings to advance an argument that the account given by O'Toole to his solicitor could be used selectively to support the appellant's account of events is entirely at odds with the approach adopted below. For very obvious good reason Mr Hill (and others) wished to limit the scope of the use of this evidence before the jury. Even had Mr Hill applied to the judge to use the evidence in the way he now suggests, it is inconceivable that he would have succeeded. Mr Hill accepts that Mr O'Toole could not realistically have been recalled for further cross-examination – a course which would have been likely to do more damage to the case of his co-accused anyway. If an application had been made under the hearsay provisions of the Criminal Justice Act 2003 to admit the statement that application would have failed. No doubt, that is why it was not made. The co-accused would have resisted anything being admitted as the truth of its content because of its highly prejudicial nature. Furthermore, the appellant would have been faced with accepting an "all or nothing" approach to the hitherto privileged accounts as they related to her. As we have noted those accounts in part damage her position.
30. The limit of the use to which these accounts might have been put had cross-examination of the solicitor been allowed in a more expansive form would be to identify what to our minds were no more than minor further inconsistencies in the early accounts given by O'Toole. Differences between the accounts given by O'Toole in his first interview as compared with his second interview, and then further compared with his evidence were all in evidence. It is impossible to imagine that any significant further points could have been made on behalf of the appellant had cross-examination of the solicitor been more wide ranging. In any event, it must not be overlooked that O'Toole was convicted of murder. The jury did not accept the core of his account.
31. The way in which the judge limited the cross-examination of O'Toole's solicitor does not undermine the appellant's conviction.