England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		18th March 2015

THE LORD CHIEF JUSTICE: I shall ask Mr Justice Jeremy Baker to give the judgment of the court.

MR JUSTICE JEREMY BAKER:

1. On 1^st April 2014, following a trial at Lewes Crown Court (sitting at Hove) before His Honour Judge Lawson QC and a jury, Harvey Munford and Zac Cowdrey were convicted of murder (count 3). Simon Penton was acquitted of murder, but convicted of the alternative offence of manslaughter. Penton was also convicted of conspiracy to pervert the course of justice (count 4) – an offence to which Munford and Cowdrey had earlier pleaded guilty. Munford and Penton had also pleaded guilt to conspiracy to burgle (counts 1, 2, 5 and 6). Cowdrey had also pleaded guilty to count 2. They were sentenced as follows: Munford, on count 3, to life imprisonment, with a minimum term of 32 years under section 269 of the Criminal Justice Act 2003, together with concurrent terms of nine years' imprisonment on counts 1, 2, 5 and 6 (no separate penalty was imposed on count 4); Cowdrey, on count 3, to life imprisonment with a minimum term of 32 years under section 269 of the 2003 Act, and no separate penalty on counts 2 and 4; Penton, on count 3, to life imprisonment, with a minimum term of 13 years specified under section 82A of the Powers of Criminal Courts (Sentencing) Act 2000, together with concurrent terms of nine years' imprisonment on counts 1, 2, 5 and 6, with no separate penalty on count 4.
2. Munford and Cowdrey now renew their applications for leave to appeal against their conviction on count 3 following refusal by the single judge. Cowdrey and Penton renew their application for leave to appeal against sentence on count 3, following refusal by the single judge. Munford appeals against sentence by leave of the single judge on the sole ground that the judge had omitted to deduct the period he had spent on remand under section 269(3)(b) of the 2003 Act, namely 292 days. Although this issue was not raised as a ground of appeal in relation to Cowdrey and Penton, it also applies to them. To that limited extent we will in due course grant them leave to appeal. The relevant period in relation to Cowdrey is 61 days under the 2003 Act, and in relation to Penton, 291 days under section 82A(3)(b) of the 2000 Act.
3. Penton is 44 years of age and a career burglar of domestic premises. Munford is 24 years of age (23 at the time of the offences); he has previous convictions for offences of burglary of domestic premises. Cowdrey is 25 years of age (24 at the time of the offences), and he too has previous convictions for offences including burglary of domestic premises and assault occasioning actual bodily harm.
4. Between January and May 2013 Penton and Munford planned and carried out a series of burglaries of domestic premises. The properties targeted were substantial homes in the South of England occupied by elderly persons who at the time were asleep in their beds. The properties yielded items of significant value, including silverware and antiques. The exception to this was the home of Michael Griffiths, a man in his mid-50s who lived alone in a more modest home in Fernhurst, West Sussex. Mr Griffiths was a jeweller. He worked from a workshop in his home in which he had a safe for the storage of the valuable items of jewellery upon which he was working. Indeed, at the time when his home was targeted – as was common knowledge in the locality – he had two diamonds in his safe worth in excess of £40,000. In order to operate the safe, not only did it require the use of a key which was secreted elsewhere in the house, but also the opening of a combination lock. It was the prosecution case that in order for those burgling his house to be enabled to have access to the safe and its contents, Mr Griffiths' presence and co-operation would be required, and this co-operation was to be obtained through the application of violence upon him.
5. In order to carry out the burglary of Mr Griffiths' home, Penton decided to enlist the services of a third party, namely Cowdrey, in order physically to carry out the burglary with Munford, whilst Penton remained elsewhere directing operations, including the provision of transport by others.
6. On the evening of 22^nd January 2013 two individuals, who it was later conceded were Munford and Cowdrey, visited Mr Griffiths' home. They wore high-visibility jackets and pretended to be police officers wishing to speak to him. Mr Griffiths was a cautious man. He questioned them through a window. Appreciating that he did not propose to allow them access to his home, the two of them made off, pretending that it was all a joke. Mr Griffiths was concerned about this visit and contacted the police about it, but the matter was taken no further at that stage.
7. At about 11.20pm the following day Mr Griffiths returned to his home after an evening visiting a friend. It is apparent that by then Munford and Cowdrey had already broken into his home and were lying in wait for him. The precise order of events which thereafter took place is unknown. However, it would seem that at a relatively early stage Mr Griffiths was tied up and attacked by the two of them, as a result of which he suffered injuries from which he later died.
8. At some point Munford and Cowdrey left the house and returned to Penton. It was then decided that Munford and Cowdrey would return to Mr Griffiths' home in order to set light to it so that the evidence of what had taken place would be destroyed. Therefore the two of them, after having purchased petrol, returned to the house at about 7am, entered the property and set light to it with the use of the accelerant. The fire quickly took hold. It was not discovered until about 20 minutes later, when Mr and Mrs Young, who lived in the adjoining house, became aware of a strong smell of smoke and alerted the fire brigade who attended shortly thereafter. When they did so, they found the house on fire and Mr Griffiths' body behind the door. It was clear that he had suffered a number of injuries and had been "hog tied" with his hands trussed up behind his back.
9. A subsequent post-mortem examination disclosed that he had suffered a number of blunt-force injuries to his head and body. His ribs had been fractured. It was the opinion of the pathologist that whilst the blows had not been the direct cause of his death, it was likely that they had rendered him unconscious, and thereafter Mr Griffith has suffered an asphyxial death. There was reflux of his gastric contents within his windpipe and signs of neck compression probably with the use of his own handkerchief.
10. Although a forensic examination of the premises failed to detect any items from which those responsible for the death of Mr Griffiths could be traced, it did reveal that there were a number of different sites of blood-staining within the property, indicating that Mr Griffiths had been moved whilst bleeding.
11. The police carried out extensive mobile telephone and ANPR camera enquiries and were able to connect the various accused, including Munford, Cowdrey and Penton to the offences. They were arrested in June 2013. In interview none of them made any comment. When Munford's computer was forensically examined, material was found on it which indicated that both before and after the burglary of Mr Griffiths' home Munford had been searching the internet in relation to matters including martial arts, violence and sexual pornography, including references to killing, killers and strangulation. In particular, at 4.26am on 22^nd January 2013 there was a You-Tube search using the words "best way to hurt someone?" There was also a nude image of Munford stored on his computer.
12. Prior to the trial, Munford had pleaded guilty to counts 1, 2, 4, 5 and 6. He had also entered a plea of guilty to an offence of manslaughter in relation to count 3, which had been rejected by the prosecution. Prior to trial, Cowdrey had pleaded not guilty to all of the counts which he faced on the indictment, and his defence statement provided details of an alibi. However, on the tenth day of the trial, after evidence in support of his alibi had been given, he was re-arraigned and pleaded guilty to counts 2 and 4. He also entered a plea of guilty to the alternative offence of manslaughter in relation to count 3, which was similarly rejected by the prosecution.
13. At the beginning of the trial an application was made by Munford that the evidence relating to the results of the forensic search of his computer should be excluded from the jury's consideration. In this regard the prosecution were not minded to argue that the post-offence material, including the nude image of Munford, should go before the jury. However, they did wish to rely upon the 4.26am You-Tube search for supporting their case that the infliction of violence was envisaged by those taking part in the burglary at Mr Griffiths' home prior to it taking place. The trial judge ruled that the evidence was admissible and that it would not be unfair for it to be admitted. This ruling founds the first ground of appeal on behalf of Munford. In the light of the ruling Munford decided to place before the jury a schedule which suggested that he was in the habit of searching the internet in relation to martial arts material because he had a general interest in it, no doubt in order to seek to dilute the potential significance of his 4.26am search.
14. The second ground of appeal advanced on behalf of Munford, and supported by Cowdrey, relates to what occurred during the course of the jury's deliberations. As the prosecution had not sought to argue that the post-offence material found on Munford's computer should be considered by the jury, the proposed jury bundles had been edited in order to remove this material, together with his nude image, prior to the commencement of the trial. However, on the morning of the second day of the jury's deliberations it came to the court's attention that the nude image of Munford had been left in one of the six jury bundles. Following discussion with counsel, it was decided that the jury should be invited to return to court, that it should be explained that this was an error, and that the only reason why the image had originally been placed in the bundle was to seek to connect Munford with the computer, which was not now in dispute, and that they should ignore the image. That was done, and no complaint is made about this part of the procedure. However, later that morning it was realised that if that image remained in the jury's bundle it was possible that the other post-offence material may have remained in the jury's bundle. The jury bundles were checked and it was found that in the same jury bundle this was the case. The material was removed. At that stage the jury were sent home in order that the parties and the judge could consider what if anything should be done about the situation which had arisen.
15. In the jury's absence it was submitted on behalf of the prosecution that the first step which should be taken was for the two jurors whose bundle was the subject of the error should be invited separately to answer a series of questions concerning their knowledge of the material and any dissemination of the material to the other jurors. This course was opposed by counsel on behalf of Munford who argued that the situation required the whole jury immediately to be discharge. That stance was supported by those representing, amongst others, Cowdrey and Penton.
16. The judge ruled that he would not discharge the jury at that point; rather, it was appropriate for further consideration to be given to the issue once the two jurors had been questioned in the manner submitted on behalf of the prosecution. This ruling founds the second ground of appear on behalf of Munford and Cowdrey.
17. The judge then invited the jury to return to court. He explained to them that there was some material contained in one of the jury bundles which ought not to have been included within it, and explained that he would initially be asking some questions of the two jurors concerned, following which he would make a decision as to what he should do about it.
18. Thereafter, the two jurors were questioned separately in open court in the absence of the other one. The first of the two jurors said that he had only noticed the presence of the nude image of Munford in the bundle when the jury commenced their deliberations and decided to go through the jury bundles in order to refresh their memories of the contents. He said that whilst doing this, although he appreciated that there was some other material behind the image, he had not read it, but had merely flicked through it and assumed it was simply further material of a similar nature to that which they had already received in the trial, namely, the schedule relating to Munford's martial-arts-based searches. He said that he had not discussed this further material with any of the other jurors. The second of the two jurors gave a similar account.
19. At the conclusion of this procedure, and in the absence of the jury, the defence maintained their submission that the jury as a whole should be discharged. This was opposed by the prosecution, and the judge ruled that the jury would not be discharged. He stated that he was satisfied that a fair-minded and informed observer would conclude, even on the most prejudicial interpretation of what had happened, that a jury would not be prejudiced against any of the applicants. This ruling founds the third ground of appeal by Munford and Cowdrey.
20. Thereafter, the trial judge invited the jury to continue with their deliberations, and in due course they returned their verdicts.
21. These grounds of appeal can be taken shortly. In relation to the first ground, the defence ultimately presented by each of the applicants was that they were practised burglars who avoided disturbing the occupiers of the homes which they burgled, and therefore would not have contemplated, let alone intended, any harm to Mr Griffiths. On the contrary, when he returned home, Munford and Cowdrey were surprised by the arrival of Mr Griffiths and simply acted in self-defence to the violence which he showed towards them.
22. In these circumstances we do not consider that there can be any justifiable argument as to the very real relevance of Munford's 4.26am You-Tube search carried out in the period between the abortive visit to Mr Griffiths' home on 22^nd January and their fatal visit on the following day. The jury were clearly entitled to infer that, far from violence not being contemplated, Munford's 4.26am search supported the prosecution's case that violence was precisely what was being not only contemplated, but indeed intended to be carried out by the applicants in order to seek to persuade Mr Griffiths to offer up access to his safe. It was on this basis that the trial judge ruled the evidence admissible, as he was properly entitled to do. There can be no question that any unfairness resulted from its admission in the trial.
23. In relation to the second ground, the procedure adopted by the trial judge when it was discovered that material had inadvertently been left in one of the jury bundles was entirely in accordance with the protocol issued by the President of the Queen's Bench Division in November 2012, as consolidated in the Criminal Practice Directions at PD60. It would have been quite wrong for the trial judge to have acceded to the defence application summarily to discharge the jury at that stage without relevant enquiries being made of them. The procedure, which was carried out properly and fairly, enabled those enquiries to be made.
24. In relation to the third ground, as a result of the adoption of that procedure it was discovered that the material which was of concern had not been read by any of the jurors. The most which had occurred was that the two jurors in whose bundle the material had remained had, at a very late stage of the trial, simply flicked through the material rather than read it in any detail. Moreover, the impression which they had gained from this was that it was simply more of the same favourable material which the defence had chosen to place before the jury in order to seek to dilute the effect of the admission of the 4.26am You-Tube search.
25. In these circumstances, and bearing in mind what was said by this court in R v Lawson [2007] 1 Cr App R 20, we are quite satisfied that there was in reality no prejudice to any of the applicants as a result of what occurred.
26. On behalf of Cowdrey three further grounds of appeal against conviction were raised: first, that the trial judge should not have admitted the evidence of his previous conviction for assault occasioning actual bodily harm; secondly, that having done so, he misdirected the jury in relation to it; and thirdly, that he misdirected the jury in relation to the issue of his lies.
27. Originally, the prosecution sought to place before the jury evidence of three previous convictions which Cowdrey had for burglary in order to seek to establish that he had a propensity to burgle, under section 101(1)(d) of the 2003 Act. However, the matter had not been resolved and the convictions had not been admitted in evidence prior to the time when Cowdrey decided to abandon his defence of alibi and had joined in the defence being run by his co-accused, namely, that he had not contemplated any violence and had only acted in self-defence when he and Munford had been surprised by the arrival of Mr Griffiths. In these circumstances the prosecution no longer sought to place the burglary convictions before the jury (or indeed any other of his convictions). What appears from the transcript to have occurred, as is now properly conceded by Mr Mendelle QC who appears on behalf of him, is that those acting on behalf of Cowdrey raised with the judge their intention to place his burglary convictions before the jury, presumably in order to support his new defence that he was a practised burglar and would not have anticipated being disturbed by Mr Griffiths, whereupon the prosecution submitted that, in the absence of a wider knowledge of his previous convictions, including his conviction for assault, the jury were at risk of being misled. This submission does not appear to have been opposed by the defence, it no doubt being appreciated that there was a risk of the jury being otherwise misled in that manner. Therefore, as Mr Mendelle realistically and appropriately appreciates, that ground disappears.
28. However, the defence, having chosen to proceed in this manner, complain about the directions which the judge gave to the jury as to the relevance, if any, of those convictions. The judge gave those directions at two points in his summing-up: first, at volume II, page 28, where he told the jury that the convictions were merely part of the background – a direction in respect of which no complaint is made; and secondly, at volume II(a), page 21. We have read this direction and do not share the concerns evinced on behalf of Cowdrey. Although the judge said that it goes to show what the accused was capable of (in the case of Cowdrey burglary and assault), he made it clear that this could not provide any proof of what was being alleged in this case. In this regard it is of note that the only issue which remained for the jury to determine was the issue of intent. Accordingly, this direction sufficiently indicated to the jury that Cowdrey's bad character was incapable of assisting the jury upon that issue.
29. The main aspect of the lies told by Cowdrey was in relation to the false alibi in which he had persisted until a relatively late point in the trial. Complaint is made that in the course of the summing-up the judge reminded the jury about this aspect of his lies on more than one occasion, without specifically directing them at those points that an accused may lie for innocent reasons, and although a lie made adversely affect his credibility, it cannot in the present case assist in the determination of the issue with which the jury were faced, namely, that of intent.
30. It is clear that in accordance with authorities such as R v Bullen [2008] 2 Cr App R 25, it was necessary for the judge to give such a direction to the jury. It is equally clear that he did so in the course of his written directions, where he said in terms:

"Those lies cannot resolve whether he committed murder or manslaughter."

Indeed he went on to direct them:

"You will no doubt treat his evidence with the greatest care. He has given an explanation of why he lied. If you accept that to be an honest explanation justifying the lies, then you will obviously not allow it to damage his credibility."

In our judgment, having given a clear and appropriate written direction to the jury as to the limited potential relevance of Cowdrey's lies, the trial judge was not required to repeat this direction on the subsequent occasions when he referred to them. We do not consider that there was anything wrong with the use of the word "justification" in the context in which it was used in this case. If anything, this aspect of the direction was generous to the applicant in that the trial judge effectively suggested to the jury that his lies would not adversely affect his credibility.

31. We have ourselves considered with care the summing-up. We are satisfied not only that the grounds raised are unarguable for the reasons that we have provided but that there is no reason to question the safety of the convictions in this case.
32. We turn to consider the sentences passed on the applicants. Munford and Cowdrey were both convicted of murder and it followed that mandatory sentences of life imprisonment were obliged to be passed upon each of them. However, complaint is made as to the length of the minimum term. It is common ground that the starting point under Schedule 21 to the 2003 Act was 30 years as the result of the murder having been committed in the course of a burglary and therefore done for gain. That was the starting point used by the judge in this case. In the course of his sentencing remarks the judge indicated that he proposed to reduce the terms in respect of Munford and Cowdrey to reflect both their youth and because he had formed the view that neither of them had intended to kill.
33. Criticism has been made about the use of the terminology by the judge in the course of his sentencing remarks, namely, that the applicants did not intend "immediately to kill". Although we accept that the matter could have been better expressed, we have read the sentencing remarks as a whole and it is quite clear to us, as was implicit from Penton's conviction for manslaughter, that the judge properly approached his sentencing task on the basis that he accepted that it was a mitigating factor that there was no intention to kill.
34. However, the judge also indicated that he would increase the terms to reflect the aggravating factors, which included the significant degree of planning, the degradation and humiliation of the victim, and the attempt to destroy the evidence.
35. The complaint which is made on behalf of the applicants is that, in determining that the appropriate minimum term was 32 years, the judge failed properly to balance the competing mitigating and aggravating factors which resulted in an excessive minimum term.
36. We disagree. In our view the minimum term in the case of both Munford and Cowdrey was amply justified. We consider that it was, if anything, generous for the trial judge to give any weight to the age of either of the applicants. They were 23 and 24 years of age respectively. The planning involved in the offence was not just that of an ordinary burglary. It was one, as the judge correctly found, which involved the necessary infliction of violence in order to seek to persuade the victim to divulge the means of opening his safe. The degree of both mental and physical suffering inflicted upon the victim was substantial. The victim was alone in his home at the time and the setting of a fire with the use of an accelerant which quickly took a firm hold involved a substantial risk to the lives of the neighbours.
37. In these circumstances, and save in relation to the one matter to which we have already referred, there are no arguable grounds concerning either of the minimum terms.
38. In the case of Penton complaint is made both as to the nature of the sentence, namely one of life imprisonment, and of the length of the minimum term. In the course of his sentencing remarks the judge did not indicate whether the sentence of life imprisonment was passed under section 225 of the 2003 Act, or whether he was imposing a discretionary life sentence, as explained in R v Burinskas [2014] EWCA Crim 334. However, we consider, for the reasons given by the judge, that under either regime a sentence of life imprisonment was justified.
39. Dealing with the matter under section 225, which we understand to be the provision under which the sentence was imposed, it is apparent that the court was dealing with a "serious offence" as defined in the 2003 Act. Moreover, given the deliberate planning of the offence, which involved the intention that some degree of harm would be caused to the victim, with the concomitant risk, as occurred, that matters could get out of hand and more serious harm could occur, we are satisfied that there is a significant risk to members of the public of serious harm occasioned by the commission by Penton of further specified offences.
40. Insofar as the minimum term is concerned, this was based on a notional period of 26 years, which is argued to be excessive. In this regard we note, as did the judge, that Penton was the main organiser, not only of the series of carefully planned offences of high value burglaries committed between January and May 2013, but was the organiser of the fatal burglary at Mr Griffiths' home.
41. Penton was 44 years of age and had had a lifetime's experience of being a career burglar. As we have observed, not only did he intend that some degree of harm should befall Mr Griffiths, but he was instrumental in the return of his co-accused to carry out the highly-dangerous act of arson at his home which was intended to, and did indeed, destroy any relevant evidence which might connect either of his two co-accused, and implicitly himself, to the commission of that offence.
42. In these circumstances we are satisfied that there are no arguable grounds either that the nature of the sentence was wrong in principle or that the minimum term was manifestly excessive.
43. Accordingly, save for the one matter in relation to the applications in respect of their sentences, we refuse leave to appeal against both conviction and sentence. The exception is the omission by the judge to deduct from the minimum terms the periods which each applicant spent in custody on remand. Such a deduction ought to have been made and we will now rectify that omission such that, upon this single point, we grant leave to appeal against sentence and allow those appeals to this extent only: in the case of Munford the minimum term will be 31 years and 73 days; in the case of Cowdrey the minimum term will be 31 years and 304 days; and in the case of Penton the minimum term will be 12 years and 74 days.
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