Eccleston v R [2001] EWCA Crim. 1626

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
[2001] EWCA Crim 1626Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Tuesday 10 th July 2001
Between
EcclestonR
Before
Lord Justice PotterMr JUSTICE TOMLINSONMr JUSTICE McCOMBE
1. On the 21st August 2000 at the Wolverhampton Crown Court before His Honour K.S. Wilson-Mellor QC and a jury this appellant was convicted (by a majority verdict of 10-2) of wounding with intent to cause grievous bodily harm contrary to section 18 of the Offences Against the Person Act 1861 and was sentenced to 18 months imprisonment. He applied for leave to appeal against conviction together with an extension of time for such application. In the light of an application by the Attorney General for leave to refer the appellant's sentence under section 36 of the Criminal Justice Act 1988, both applications were referred to the full court and, at the outset of the hearing of the appellant's application, we granted the necessary leave and treated the hearing as the hearing of the appeal.2. The facts giving rise to the present appeal are as follows.3. At the time of the offence the appellant was lodging with a woman called Anita Rose with whose elder sister, Pat, he had formerly had a relationship. The complainant, Clifton Beckett, had a relationship with a further sister Angela Rose, by whom he has a child. On the day in question, Wednesday 8th December 1999 in the late afternoon, the appellant, Anita and Beckett were present at Anita's house. An argument developed between the appellant and Beckett as to what the latter considered to be the appellant's behaviour and advances towards his girl friend Angela Rose. Indeed, it seems that Beckett had gone to the house to remonstrate with the appellant about this. The two men gave conflicting evidence at trial about this argument. Each contended that the other had behaved in a threatening manner towards him. The appellant said that Beckett had pushed him over and threatened to cut his throat. What happened next was also in issue. Beckett said that he left the house before the appellant and he was supported in this by the evidence of Anita. The appellant said that he left the house first, leaving Beckett and Anita there. Beckett's account continued to the effect that he drove off to visit a friend and on his journey stopped to telephone Anita to apologise for the argument to which he had contributed. He said that, while he was in the kiosk, the appellant approached him, opened the kiosk door and struck him in the face with a pair of scissors, then ran back to his car on the other side of the road and drove off. In contrast, the appellant said that he left the house first, before Beckett, with the intention of driving straight home. He says he stopped to use the telephone. He says it was he who was in the phone box when Beckett arrived, opened the door and punched him more than once in the face causing injuries to his nose. His evidence was that he tried to get out of the box and panicked because he believed that Beckett had a knife and would use it. He said that he then took the scissors out of his jacket pocket and lashed out at Beckett in self-defence, running back to his car, followed by Beckett. The appellant acknowledged that he had armed himself with the scissors before leaving Anita's house, having taken them from Anita's own bedroom. He said that, after the incident at the phone box, he was pursued by Beckett on foot around a garage forecourt but that he had managed to escape. Two days after the incident on 10th December 1999, he reported to the police in Birmingham that he had been attacked. He found himself on that occasion arrested and was bailed to re-appear at Wolverhampton Police Station on the following day, 11th December 1999, when he was interviewed in the presence of his legal representative.4. On this appeal four grounds are relied upon in support of the submission that the appellant's conviction is unsafe. Those four grounds, ably argued by Mr Jackson on behalf of the appellant, are as follows.1. It is submitted that the prosecution failed properly to furnish the defence with details of the previous convictions of Anita Rose. Those apparently included convictions for loitering as a prostitute and possession of a controlled drug and certain convictions for theft some years previously. It is submitted that, if properly supplied to the defence, those convictions could have been used to support cross- examination of Anita going to her credibility, particularly on the issue as to whether the appellant or Beckett had left the house first.2. It is submitted that the police failed properly to follow-up forensic examination of the appellant's car, he having made a statement in interview that the car had become marked on the outside with Beckett's blood. It is submitted, that if Beckett's account had been true it would have been impossible for him to have been anywhere near the car. The police it is said, should have had the car examined.3. It is further contended that the appellant invited the police to view a video tape from the garage forecourt which would have depicted the latter part of the incident. Failure to do so timeously, it is said, renders the conviction unsafe on that ground also.4. Finally, it is submitted that the learned judge erred in failing to leave to the jury in his summing-up the possibility of the alternative offence under section 20 of the Offences Against the Person Act 1861.5. We address each of those submissions in turn.1. Anita Rose's convictions6. The failure to disclose the convictions occurred because the prosecuting authorities had been erroneously informed by the police that there was no criminal record to be found in respect of Anita Rose. It is not known how this error occurred. It is conceded, therefore, that defence counsel (who did not appear on this appeal) did not have this material to use in her cross-examination of Anita.7. The principal issue to which Anita's evidence related was the order in which the antagonists departed from her home. In this respect she supported Beckett's evidence and not that of the appellant. Her credibility, it is submitted, was capable of attack by the defence because of a further suggestion that Anita in the past had supplied Beckett with drugs. It is therefore argued that she had a possible motive to support Beckett's version of events. It is said the convictions were relevant to her credit. However it was not being suggested at trial that Anita had any bias or animus against this appellant. Nor, does it appear it was being suggested that Anita was lying about the order of events at the house or that she had colluded in any way with Beckett in composing her evidence. She had of course been sufficiently friendly towards the appellant to provide him with accommodation, and Beckett was the boyfriend of her sister. The evidence she gave was in accord with the witness statement she made within a few hours of the incident, well before any statement was made by Beckett himself. Counsel suggested to us that Beckett and Anita might possibly have agreed in advance the account that they would give to the police However, there is no evidence that this was so or even that they had contact between the victim's attendance at hospital after the incident and the time when Anita gave her statement. We see no support or valid reason for any suggestion that Anita's evidence had been fabricated in collusion with Beckett.8. Mr Jackson, for the appellant, has referred us to a series of cases in which, in varying circumstances, the past records of witnesses for the prosecution have not been known to the defence at trial and where, thereafter, appeals have been brought based upon that fact. These cases are R. v. Collister (1955) 39 Cr. App. R. p.100 ; R v. Hassan (1968) 52 Cr. Appeal R. p.291, R. v. Paraskeva (1982) 76 Cr.App.R. p.162, R v. Matthews (1975) 60 Cr.App. R p.292.9. Those cases seem to us to show that, while the circumstances are infinitely variable, the prime question for the court is to determine how relevant the missing information was to the defence of the accused. The view of the court is also likely to vary according to whether the non-disclosure relates to the complainant himself or a third party witness whose evidence is not central to the case. It is, we think, of some moment that a head-on attack on Anita Rose's truthfulness was not made at the trial. If, as the appellant suggested at his interview, the relevant part of Anita's statement was a lie it does not seem to have been put to her that this was so. Nor did her evidence go directly to the circumstances of the attack. The real issue, of course was what happened at the time of the ultimate confrontation. There were only two witnesses, to that, the appellant and Beckett. Moreover, the appellant had acknowledged that he had equipped himself with the scissors after the end of the first argument and before leaving the house.10. In all the circumstances, it seems to us that Anita's convictions were only of marginal relevance to the issue in this case and that, even if the jury had known of her earlier convictions, they scarcely assisted in showing any animus against the appellant or any reason to assist the victim by lying for him. We do not consider that, on this ground, the appellant's conviction is to be regarded as unsafe.2. Blood-staining on the car11. It is now suggested that the failure of the police to retain the appellant's car and cause it to be forensically examined should have given rise to an application to stay the indictment for abuse of process. That failure was raised by the appellant personally before the learned judge, notwithstanding that he was represented by counsel. It was not put as an abuse of process but more by way of general complaint. During the exchanges before the judge it was accepted from the defence that there was no dispute that the incident had in fact occurred in the vicinity of the telephone box and no application for a stay was made. The absence of forensic examination was raised by the defence, however, in the final speech to the jury.12. The circumstances relied on before us are these. The incident had taken place at about 5.00 pm on Wednesday the 8th December. The issue was raised by the appellant in his interview on Saturday, 11th December. The comment that appears in the record of the appellant's interview is as follows :
"Officer stated that Eccleston had mentioned there was some blood on the side door, outside of his car and explained when he ran towards his car Cliff was looking at his cut through the mirror of his car and thought this was how the blood got there."
13. That is the beginning and the end of the relevant passage in interview. The matter seems to have gone no further. There is no record of whether this comment was intended to mean that blood was still on the car at the time of the appellant's interview three days after the attack and no request by the appellant to the police to examine the car is recorded. It seems to us to be improbable that relevant traces of blood would have been available on the car three days after the event, when the car had been exposed to the winter elements in the meantime.14. It is argued nevertheless that the presence of blood should have been checked by the police and that the failure to do so amounted to a breach by them of paragraph 3.4 of the Code of Practice governing investigations, made under the Criminal Proceedings and Investigations Act 1996. That paragraph provides :
"In conducting an investigation, the investigator should pursue all reasonable lines of enquiry, whether these point towards or away from the suspect. What is reasonable in each case would depend on the particular circumstances."
15. It is submitted that the failure to follow up this suggestion in the interview rendered it impossible for this appellant to have a fair trial within the first of the two categories of case where the court's power to stay proceedings for abuse of process may arise : see R (on the application of Ebrahim) v. Feltham Magistrates' Court [2001] 1 All ER 831 , 848H. In summarising the court's conclusions as to the proper approach to applications to stay proceedings in a case where the police had failed to view videotape recordings in circumstances akin to these,

Lord Justice Brooke said, at paragraph 74 :

"We would suggest that in similar cases in the future, a court should structure its enquiries in the following way. (1) In the circumstances of a particular case, what was the nature and extent of the investigating authorities and the prosecutor's duty, if any to obtain and/or retain the video tape evidence in question? Recourse should be had in this context to the contents of the 1997 Code and the Attorney General's Guidelines. (2) If, in all the circumstances, there was no duty to obtain and/or retain that video tape evidence before the defence first sought its retention there can be no question of the subsequent trial being unfair on this ground. (3) If such evidence is not obtained and/or retained in breach of the obligations set out in the 1997 Code and/or the Guidelines, then the principles set out in paragraphs 25 and 28 of this judgment should generally be applied."
16. Paragraph 25 is also material in the present case. That paragraph reads as follows :
"Two well-known principles are frequently invoked in this context when a court is invited to stay proceedings for abuse of process. (i) The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness to both the defendant and the prosecution, because the fairness of a trial is not all one-sided ; it requires that those who are undoubtedly guilty should be convicted as well as those about whose guilt there is any reasonable doubt should be acquitted. (ii) The trial process itself is equipped to deal with the bulk of the complaints on which applications for a stay are founded."
17. Having regard to those principles, we have asked ourselves whether there was any relevant breach of the Code of Practice in following up the hint in interview about the blood on the car, and if so, whether that precluded the possibility of a fair trial. The extent of the duty of investigation has to be proportionate to the seriousness of the matter being investigated; per Lord Justice Brooke in the Feltham Magistrates' Court case at page 834H. Clearly this was a serious charge. However, the reasonableness or otherwise of a particular enquiry depends, as the Code itself says, on the particular circumstances. It seems to us that the police cannot be said to have been in breach of their duties under the Code in this case, where there was no clear request from either the appellant or his legal advisor that the car should be examined, particularly after the passage of almost three days in winter conditions in respect of blood said to be on the outside of the car. The police were certainly not being lackadaisical because they did pursue the appellant's suggestion that they examine video tape of the garage forecourt, which we consider below in relation to ground 3 of the appeal.18. As mentioned, there was no dispute as to the place where the relevant blow was struck i.e. in or beside the telephone box. That being the case, the presence or absence of some blood on the appellant's car was not in our view central to the issue to be tried. We reject the suggestion that it was not possible to have a fair trial of this matter as the result of any failure on the part of the police or that to continue the proceedings in those circumstances amounted to an abuse of process. We can see nothing unsafe in the conviction on that account.3. The Video Film19. The police did take up this issue and viewed the tape. However, it had by then been recorded over and, in any event, having regard to its quality and conditions on site, it was not adequate to provide proper visibility at night. Evidence on this point was given by a police officer who was cross-examined by defence counsel. He also gave evidence that the tapes were erased after 72 hours. Since the defendant did not raise any question about the video tape until the time of his interview, (i.e. almost three days after the relevant events), this complaint is devoid of substance, as Mr Jackson effectively acknowledged in the course of the appeal.4. The Alternative Offence20. Nor do we find substance in the complaint that the judge should have put the alternative offence under section 20 to the jury. The defence was that of reasonable force used in self-defence in the face of a feared knife attack, not one of accidental over-reaction. The nature of the blow would have precluded any suggestion of the absence of the required intent. The injury caused by the single blow with the scissors was horrific. The blow had pursued a downward motion, severing the victims top and bottom lips going down through the base of his mouth emerging under his chin and re-entering his neck at the Adam's apple. The judge made it clear with the consent of counsel that, in the absence of the relevant intent, the only verdict that could be returned was one of not guilty. This is apparent from various passages of his summing-up. First, at page 1E-F, he said as follows :
"The charge against this man is that he wounded the young man Clifton Beckett intending to cause Clifton Beckett really serious hurt. Unless counsel invites me to do so I don't propose to leave any alternative verdict to you and you haven't been addressed on the basis of such an alternative verdict so the only verdict that you can return is either guilty or not guilty."
21. Secondly, at page 2 between letters G and H

the judge said this :

"So, you have to be satisfied on two points at least. First of all, that the wound was caused by the deliberate act of the defendant, that is an act which was not accidental but deliberate. Next, you have to be sure that the act was an unlawful act, that means not done in reasonable self-defence. And thirdly you must be sure that when he did the act he intended to cause really serious hurt.

Only if you are sure of those three matters may you convict."

22. Finally, the judge returned to this matter at the end of his summing-up at pages 8E-9B where he said the following, having procured copies of the indictment to be given to the jury :
"You will see that it charges Mr Eccleston with wounding Mr Beckett unlawfully and maliciously - don't bother about maliciously ; it merely means deliberately - intending to cause him really serious hurt.
You remember the ingredients the matters the Crown has to prove. They must prove there was a deliberate act which was not accidental by the defendant which caused that wound. And that it was an unlawful act not done by Mr Eccleston in reasonable defence of himself against an attack which was occurring and which he believed to be imminent, and which he believed to be of such gravity that it called for defending himself with that implement.And if you are satisfied the act was done by the defendant and it was deliberate and unlawful in that sense, then you would convict him, if you are satisfied that he intended by what he did to cause really serious hurt. If you are not satisfied on any of those counts your verdict would be not guilty."23. It seems to us that the judge's directions made it absolutely clear that, even if the jury were sure that the appellant had not acted in lawful self-defence, they should not convict if they were not sure that the appellant had the relevant specific intent.24. In concluding his speech in the House of Lords in R. v. Maxwell (1990) 91 Cr.App.R. 61 at p.68 Lord Ackner said this :
"What is required in any particular case, where the judge fails to leave an alternative offence to the jury, is that the court, before interfering with the verdict, must be satisfied that the jury may have convicted out of a reluctance to see the defendant get clean away with what, on any view, was disgraceful conduct. If they are so satisfied then the conviction cannot be safe or satisfactory."
25. We are not so satisfied. The result is that this ground of appeal must also fail.26. We therefore conclude that this appeal must be dismissed.

Cited in 1 later judgment