England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Thursday, 16 November 2017

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1. LORD JUSTICE HOLROYDE: On 12th November 2010, in the Crown Court at Liverpool, this applicant, Colin Clarke, pleaded guilty to an offence of conspiracy to rob. On 15th March 2011, at the conclusion of the trial before the then Recorder of Liverpool (His Honour Judge Globe QC), he was convicted of murder. On 31st March 2011 the learned judge sentenced him to life imprisonment, on each charge, with a minimum term of 26 years for the offence of murder and of 3 years 3 months for the offence of conspiracy to rob.
2. The experienced counsel who had represented the applicant at his trial advised him that there were no grounds of appeal. The applicant subsequently instructed different legal representatives, and in March 2016 he applied for an extension of time of some 5 years to apply for leave to appeal against conviction. The application was refused by the single judge (Sweeney J) for the reasons which he gave. The application is now renewed to the Full Court.
3. The applicant has been represented before us by Mr Green of counsel, who we understand appears pro bono: we are very grateful to him for doing so.
4. The victim of the offences, Muneed Nasir, was a 21-year-old medical student living in shared student accommodation. He had unfortunately chosen to sell the drug known as MCAT, and he continued to do so when it became a controlled drug in April 2010. That made him a target for local criminals. This applicant and his co-accused conspired to rob him. To that end, a co-accused called Hirst made an arrangement by phone to meet Nasir at the student house, ostensibly to buy MCAT. When Hirst kept that appointment he was accompanied by this applicant and another co-accused, Johnson. A fourth defendant, Cleator, waited in a car outside and acted as lookout. The applicant and Johnson had been recruited because of their large physiques. Once in the bedroom of Muneed Nasir he was subjected to a terrible attack over a period of 23 minutes. He was bound with duct tape, beaten in a way which caused multiple bruises and haemorrhages, and stabbed first to the buttocks and then to the leg. The latter injury, inflicted using a knife with a blade some 12 centimetres in length, severed the femoral artery, and the unfortunate Mr Nasir bled to death. The applicant left the scene leaving Mr Nasir still bound and dying on the floor.
5. The prosecution case against all of the accused was they had been parties to a joint enterprise to murder. The prosecution relied, among other things, on the evidence of text messages between the accused, the duration and obvious nature of the attack upon the deceased and the nature of the two wounds inflicted upon him.
6. The applicant's fingerprints were on the duct tape recovered from the deceased's room and similar duct tape was found in a bag at the applicant's home. The applicant's fingerprints were inside the deceased's room, and he admitted that he had taken the deceased's mobile with him when he left. In the course of the trial a co-accused gave evidence that he had seen this applicant using the knife.
7. The applicant's account was that although he had been present for a time, he was involved only in a conspiracy to rob, had no involvement in any actual violence and had left the scene when he saw Johnson becoming aggressive. It was his case that Johnson was responsible for the stabbing.
8. At the conclusion of the prosecution evidence a submission of "no case to answer" was made by all the accused. It was rejected by the learned judge.
9. The defendants who had been present at the scene ran cut-throat defences. This applicant successfully applied to adduce bad character evidence in relation to Johnson. Johnson applied to adduce evidence that in 1996 the applicant, then aged 22, had been convicted, after a trial, of offences of rape of, and unlawful sexual intercourse with, a girl then aged 13. The application was opposed, on grounds including that it would be highly prejudicial for the jury to hear evidence of convictions of that nature.
10. In a careful ruling the learned judge refused the application in so far as it was based on the proposition that the 1996 conviction was capable of showing a propensity on the part of this applicant to be violent. The judge however allowed the application on the basis that that earlier conviction was capable of showing a propensity to be untruthful. At Volume II page 20D, he explained his decision, in these terms:

"By section 104(1) [of the Criminal Justice Act 2003] evidence which is relevant to the question whether the defendant had a propensity to be untruthful is admissible on the basis under Section 101(1)(e) only if the nature or conduct of his defence is such as to undermine the co-defendant's evidence. Here the cut-throat defence is central to the case. It is Alan Johnson's case that Colin Clarke had the knife in his hand and it was Colin Clarke who stabbed Muneed Nasir in the leg."

Then at the conclusion of his ruling at page 22A the learned judge said this:

"In relation to Alan Johnson's application to admit the rape conviction to establish a propensity for violence, I am not satisfied that the conviction has substantial probative value and rule that to be inadmissible. However, I am satisfied that the conviction is admissible for the purpose of seeking to establish a propensity to be untruthful. In my view his denials in interview in the rape case, the fact that the jury disbelieved him on his oath, and the conviction of him on the counts on the indictment are all matters that are of substantive probative value in relation to the cut-throat issue in this case, and it is admissible.

I add the following. Normally once bad character evidence is admitted it is admitted for all purposes. However, in the context of this conviction I intend to direct the jury that it is admissible solely for the purpose for which I have just permitted its admission, namely untruthfulness and not for any other purpose. Juries are expected to follow the direction of judges when given legal directions and that legal direction, in my view, will cure the risk of prejudice, feared by those representing Colin Clarke."

11. The trial was conducted, and the learned judge summed-up, on the basis of the law relating to joint enterprise as it was then understood. That understanding has subsequently been shown to be wrong by the decision of the Supreme Court in Jogee [2016] UKSC 8.
12. The grounds of the application for an extension of time are that the applicant was given oral advice against any appeal by the Queen's Counsel who represented him at trial but he did not receive the written advice that was sent to him. He was advised by his trial solicitors to contact new solicitors but had difficulty in finding solicitors to act for him. He initially contacted his present solicitors in early 2014. There was a further delay in obtaining instructions, funding and transcripts, with the result that counsel was not able to advise until July 2015. Further transcripts were then obtained in accordance with counsel's advice, and the advice and grounds of appeal were rapidly completed once that material was available. The application was submitted in early March 2016, shortly after the decision in Jogee in mid-February.
13. Initially, two grounds of appeal against conviction were put forward. One was based on the decision in Jogee. It is no longer pursued, the learned single judge having pointed out that the insuperable difficulty which the applicant faced in the light of the subsequent decision of this court in the case of R v Johnson & Ors [2016] EWCA Crim 1613.
14. The sole ground pursued by Mr Green is in these terms:

"In permitting evidence to be given about the applicant's conviction for rape of a 13-year-old girl the learned trial judge erred in that he allowed the jury to hear highly prejudicial facts which they should not have heard and which no subsequent direction could remedy."

16. The prosecution are not represented before us today, but we have read a written respondent's notice.
17. Mr Green submits that the nature of the previous convictions of the applicant were so scandalous as to give rise to prejudice which could not be prevented by any direction the judge could give. He submits that, since the judge had concluded that the only relevance of the previous convictions was that the applicant had lied both to the police and to the jury in relation those offences, it was not necessary for the jury trying him for murder to know the nature of the previous convictions. In his written advice Mr Green helpfully summarises the argument in this way:

"All that was required to give effect to the learned judge's ruling was for the jury to be told that Mr Clarke had been previously tried for an offence and that the jury in that case had, by its verdict, concluded that he had lied to the police in interview and to them on oath. This would have avoided the undoubted prejudice to Mr Clarke, resulting from the jury learning the toxic and irrelevant fact that the conviction was for raping a 13-year-old girl."

19. Developing the argument in his oral submissions, Mr Green points out that in a passage of cross-examination by counsel on behalf of Johnson, reference was made to the 1996 conviction. The applicant himself, in saying what had happened, used the words: "I was convicted of a serious crime". That, argues Mr Green, is all that was necessary to meet the ruling which the judge had given.
20. Mr Green complains that counsel then representing Johnson went on to cross-examine in terms expressly referring to an offence of rape of a 13-year-old girl. At one point in his submissions to us this morning Mr Green said that it was an inevitable part of his argument to say that counsel then representing the applicant should at that point, or at some later stage, have invited the learned judge to discharge the jury. Later in his oral submissions, Mr Green said that he was not seeking to criticise trial counsel. He sought to advance the point in order to demonstrate that all parties were put in difficulties because the learned judge, having admitted the evidence, did not closely define precisely how it should be treated.
21. We are not persuaded by these submissions. It is important to remember three things. First, this was an application by a co-accused in a case involving cut-throat defences, and in which the applicant himself had sought to adduce bad character evidence against the co-accused who was making an application against him. Secondly, Mr Green realistically acknowledges that the learned judge was entitled to conclude that the fact that the applicant had lied to the police and to the jury in 1996 was capable of showing a propensity for untruthfulness. Thirdly, no criticism is made of the terms in which the judge did direct the jury about the limited use they could make of this evidence. The argument is that, impeccable though that direction was, it could not in practice have been effective.
22. In our judgment, the judge's approach and decision cannot be faulted. We particularly endorse his observation that rulings are made in the expectation, borne out by experience, that juries will loyally follow and obey them. It is of course clear why it would have been advantageous from the applicant's point of view to have pared down the terms in which his previous conviction went before the jury in the manner for which Mr Green argues. But it would have been unjust, from Johnson's point of view, not to make it clear that the lies had been told in relation to a very serious allegation and one which would be likely to result in a significant custodial sentence in the event of conviction. Mr Green's response to that is to say that merely referring to "a serious offence" would have sufficed. But as the subsequent passage in the cross-examination to which we have referred shows, that too would have been unjust from the accused Johnson's point of view. The cross-examination shows that it was part of Johnson's case, in this vigorous cut-throat defence, not merely to say that the applicant had shown himself capable of lying to the police and a jury but also to say that the applicant had shown himself capable of lying to his friend, Johnson; for Johnson's case was that the applicant had never given him a truthful account of that conviction.
23. In those circumstances, it seems to us that the learned judge was entirely correct to reach the decision that he did. This sole remaining ground of appeal is, in our judgment, not one which is capable of being argued.
24. We add this. The explanation for the delay in making this application is wholly unsatisfactory. We acknowledge and take into account that a person serving a prison sentence, who wishes to obtain and instruct fresh legal representation, is likely to face a number of practical difficulties. But in the present case, whether he received the advice orally or in writing, the applicant knew within a short time of his conviction that his trial lawyers could see no ground for appeal. He knew he could consult other solicitors and he was in fact able to do so. Yet 5 years then passed before grounds of appeal were lodged with this court. Mere references in general terms to delays in obtaining funding or transcripts are simply insufficient. If we had felt there was any arguable merit in the grounds of appeal against conviction, we would have wished to hear a much fuller explanation of the delay and we would have given counsel an opportunity to provide that explanation. But it is not necessary for us do so because the ground of appeal is, as we have indicated, unarguable, and accordingly no purpose will be served by granting an extension of time.
25. For those reasons the renewed application fails and is refused.

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