MccArtney & Ors, R. v [2003] EWCA Crim 1372

Case No 200002775Z4, 200002904Z4, 200002912Z4 & 200002949Z4

[2003] EWCA Crim 1372

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM HIS HONOUR JUDGE FAWCUS

Venue AT MANCHESTER CROWN COURT, Royal Courts of Justice, Strand, London, WC2A 2LL

Date Date: 16 MAY 2003

Before

LORD JUSTICE MANTELL

MRS JUSTICE RAFFERTY

MR JUSTICE GRIGSON

Between

MccArtney & OrsDefendant

RCrown

Hearing Hearing dates: 31 st March, 2 nd, 3 rd and 4 th April

REGINA- v -ALAN MICHAEL MCCARTNEY PETER JOHN HAMLETT LEE BEDDOW And MICHAEL DAVID HULME

Mr J A Price QC (instructed by the Registrar) for the appellant McCartney

Mr J Wood QC & Miss T J Mylvaganam (instructed by Registrar) for the appellant Hamlett

Mr J M Shorrock QC (instructed by Registrar) for the appellant Beddow

Mr D A Martin-Sperry (instructed by Patterson & Co) for the appellant Hulme

Mr R L Marks QC & Mr A J M O’Byrne (instructed by CPS) for the Crown

JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

[1]On 20 April 2000 after a trial lasting over seven weeks in the Manchester Crown Court Peter Hamlett, Lee Beddow, Alan McCartney and Michael Hulme were convicted of conspiracy to rob, and on 20 April sentenced, as follows: Peter Hamlett Count 1: 19 years imprisonment. Lee Beddow Count 2 (10-1): 17 years imprisonment. Alan McCartney Count 2 (10-1) 11 years imprisonment to be served consecutively to his current sentence of 8 years. Michael Hulme Counts 1 and 2: 22 years imprisonment on each, concurrent

Peter Hamlett

[2]LeeTaylor and JohnWallace were acquitted on Count 1. AnthonyVincent was acquitted on Count 2.

[3]McCartney, Beddow and Hulme appeal against conviction by leave of the single judge, Hulme appeals against sentence by leave of the Full Court.

[4]Hamlett’s application was referred to the Full Court by the Registrar.

Facts:

[5]Twenty armed robberies or attempted armed robberies were committed in the Manchester area between 1 September 1996 and 28 October 1998. A team of two or three robbers was from time to time augmented by others. Count one covered 1 September 1996 to 5 September 1997, count two 1 September 1997 to 28 October 1998.

[6]The case for the Crown centred upon the evidence of RaymondLally, then aged 38, named in both counts as a conspirator and a man who admitted his guilt as to all but the first offence in time, which was committed whilst he was in prison. He gave evidence against all the defendants, alleging the involvement of each of them in one or more of the offences. Hulme was said to have been involved (generally as the getaway driver) in all twenty; Hamlett in nine, between December 1996 and September 1997; Beddow in seven, between October 1997 and September 1998; McCartney in two, in July and August 1997; Wallace in two, in December 1996 and January 1997; and Taylor and Vincent in one each, in July 1997 and September 1998 respectively. There was no suggestion that Lally was mistaken in his identification of those who had taken part. Hamlett was his half brother, Vincent his brother, Hulme a close friend, and the others people he knew well. He was either truthful or he was not.

[7]His previous convictions dated back to 1974, when he was thirteen, and included one for carrying a firearm in a public place. In July 1988 he was sentenced to ten years imprisonment for two offences of robbery. We shall for convenience refer to this latter conviction as “ the Bolton Crown Court robberies”.

[8]On 28 October 1998 he was arrested with Hulme as they were about to commit a robbery in Cadishead, Greater Manchester. Paul Kelso, also alleged to have been involved, was arrested later, named in the indictment as a conspirator, but absconded before the trial.

[9]Lally’s evidence was that after some weeks in custody he reviewed his situation, and decided to admit all the offences in which he had been involved so as to make a clean break with his past. He was debriefed in intelligence interviews and then made a series of witness statements, dealing with some one hundred offences. He asked the court to take into consideration a total of 39 offences mostly but not exclusively robberies and attempted robberies. 10 of them echoed the robberies and the attempted robbery reflected in Counts 1 and 2. He agreed he was a prime mover in the robberies and attempted robberies before the jury within the conspiracy counts, and generally he had carried a firearm. His motive in helping the police and giving evidence for the Crown was self-serving, in that he hoped to receive a lesser sentence. He was a heavy user of cocaine and when under its influence his temper could be uncontrollable and he was sometimes violent. He refuted his brothers' allegations that he had fired a gun at them and though conceding some turbulence in his family background, disputed the extent suggested by the defence, or that it formed part of his motive for giving evidence.

[10]Evidence of the twenty robberies and attempted robberies committed in the course of the two conspiracies came from him and a number of eyewitnesses. The jury knew that Lally was six feet two and thirteen stones; Mr Hamlett five feet seven/eight and twelve stones; Beddow six feet three and thirteen and a half stones; McCartney five feet four and "tubby"; Mr Hulme six feet two and twelve stones. Vincent was five feet ten and Taylor six feet five. No description of Wallace or Kelso is available. The Crown’s case was that sometimes disguises such as wigs and moustaches were used.

Offence 1

[11]Hulme and Kelso were said to be responsible for a robbery outside Midland Bank at Bradford on 5 September 1996. Mr Mordecai a Brinks security guard described a possibly coloured quite large man aged 28 to 30 with a handgun with a second shorter and possibly coloured man. The Brinks driver Mr Hewson thought the gunman five feet seven or eight, dark and aged twenty to thirty. Other witnesses variously described the gunman as white, five feet ten, twenty to thirty five and wearing a black cycle helmet, or fairly portly, and in his twenties, and the second man as white or possibly Asian, slightly smaller and thinner, in his early twenties, of similar height and build, carrying a baseball bat and wearing a bright baseball cap. They drove off in a stolen Ford Sierra with false number plates. Kelso and Hulme appeared with that car in a police surveillance video filmed the day before at a warehouse in Reddish.

Offence 2

[12]This was a robbery of Mr Donaldson a Securicor guard making a delivery at the Pioneer store in Gorton on 14 December 1996, which Lally said that he carried out with Hulme, Hamlett and Wallace.

[13]A well built masked man about six feet two ordered Mr Donaldson to hand over the box, hitting him hard on the shoulder. The driver and other witnesses described the gunman variously as wearing a balaclava mask or with a black scarf across the lower part of his face, a pistol in his right hand, five feet eight, or ten, or eleven, or about six feet tall, and heavily or strongly built, and a second masked man with a baseball bat, five feet tall and of thin build, one or possibly two others behind them. £15,000 in cash was stolen; a bag of cheques and a pickaxe handle were recovered nearby later that day.

[14]Lally described a preliminary survey and then the four of them driving to the scene in a white Escort belonging to Hulme, who carried a gun, and a purple Astra belonging to Hamlett, who carried a stick. They also had bolt cutters. Wallace took the cheques and was going to burn the bags.

Offence 3

[15]This was a robbery of Mr Donovan a Securicor guard outside Kwiksave at Glodwick, Oldham on 25 January 1997, in which Lally said that he Hulme and Wallace had been recruited by Hamlett. The getaway car was taken to the scene by Hulme before the event. They then went there in Hulme's Escort and Hamlett's Calibra. Lally had a metal rounders bat and stood at the front of the van. Hamlett had the cutters, and Wallace was at the rear of the van to stop the guard getting back to the shop. £9000 was taken. A white man in his late teens, about five feet ten tall and of medium build with blond or streaked hair demanded the security box, two others wore balaclavas. During a struggle Mr Donovan threw the box to the robbers but even so was beaten with baseball bats. Mr Waite, in the van, described the first man as about five feet ten, well built, in his twenties and wearing a black mask. One of the other two, who both wore balaclavas, was also about five feet ten, and well built. An eyewitness thought one slim with short dark hair and under thirty, and another to be red headed under a crash helmet. Yet another man had bolt cutters. All three, driven off by a fourth, got into a gold coloured Granada which, it turned out, had been sold earlier that day to a man who was possibly of mixed race.

Offence 4

[16]Lally said he, Hamlett and Hulme (who had each reconnoitred and suggested the offence) were involved. On 7 February 1997 Mr Kincade a Cashco employee had just collected money for delivery to post offices from the NatWest in Leeds when he was confronted by a white male, about five feet eleven and in his late twenties or early thirties holding a wooden handle. A second man, clean-shaven and possibly in his thirties was a few feet away holding a wooden implement about three or four feet in length. Both were wearing dark woollen hats. As instructed he dropped the box. £35,000 was stolen. Witnesses variously described white men ranging in height from five feet six to five feet eight up to six feet tall, and seeing bolt croppers, and a piece of wood. The getaway car, stolen the previous month, was later found abandoned.

Offence 5

[17]Lally, Hamlett, Kelso and Hulme were said to have robbed Mr Garghan, a Royal Mail employee, of £25,000 outside the NatWest bank at Bradford University on 27 February 1997. The four were said to have carried out the reconnaissance. Confronted by three men who took the box of money he had just collected, Mr Garghan saw one with a baseball bat, one with a pistol and one with wire cutters. They escaped in a car like a Sierra. He followed and saw two of them get into a BMW. One, about five feet eleven, well built, with short gingerish hair (as was Lally's) dropped a baseball cap. The other, white, slightly shorter and stockier, might have had the pistol, and the third, masked, had been behind the others.

[18]Eye witnesses described one as being between thirty and forty, five feet eight to ten, stocky, white, with light ginger hair wearing a red or orange baseball cap, a second as mid thirties to mid forties, white, five feet seven up to five feet ten, slim to medium to average build, dark wavy hair, and the third as five feet eleven to six feet, medium build and white.

[19]An off-duty police officer followed in a car as they drove off, and saw two men he thought he would recognise throwing clothing into a BMW and a red baseball cap onto the ground. The BMW, stolen by Kelso and left in a pub car park in advance, had previously been seen outside Kelso's address. Kelso had a gun, which Lally knew to be loaded.

Offence 6

[20]This was a robbery of Mr Beckles, a security guard, outside the Co-op Pioneers store in Littleborough on 3 May 1997, said to have been carried out by Lally (who admitted he carried a gun, probably loaded), Hamlett and Hulme. The robbers also had bolt cutters and a stick. Confronted by a man with a baseball bat and a second man with a handgun, as bidden Mr. Beckles dropped the box of money he had just collected, which Hamlett was said to have picked up. Both were about twenty five, five feet ten to six feet, medium build. They were driven off at speed in an Audi car (stolen some months previously) by a third, said to be Hulme. £9000 was taken.

Offence 7

[21]This took place outside the Aldi shop in Openshaw on 14 June 1997 and was said to involve Lally and Hulme. Mr Cannon, a security guard, had just collected a box of money when a man in a balaclava ran towards him pointing a gun. Mr Cannon was knocked to the ground, he thought by the gunman, who picked up the box. Two men ran off. Eyewitnesses variously described the gunman as five feet nine, average build and white, the second man as possibly a little shorter and younger, in his late twenties or early thirties. An off duty policeman saw a man of about five feet ten, pulling down a balaclava, and a second slightly smaller. He followed, found a balaclava a DNA sample from which was found to match that of Lally, and saw the two again in changed clothing going into Greer Street. Hamlett, who owned properties at 3, 5 and 9 Greer Street, was seen nearby with his van "before 4p.m.", by an officer who knew him, and had exchanged a few words. An anonymous telephone call to police at 4.07p.m, from a telephone kiosk about six minutes' drive from Greer Street reported two men seen in the area of the Clayton Aniline chemical works, some three hundred yards from Greer Street. Lally said that he had the balaclava and gun. They went on foot back to Greer Street and forced an entry into number 9, where Hulme was living. Since they could hear police activity, and had seen Hamlett in the street, he suggested Hulme should telephone Hamlett and instruct him to make such a telephone call. The schedule of telephone calls showed two from the landline at 9 Greer Street to Hamlett's mobile, at 1543 and 1546 that day. Lally said that they made £7000 from this robbery of which £1000 was given to Hamlett, who had been angry because the robbery was so near his home. Offence eight.

[22]Lally, Hamlett, Hulme, McCartney and Taylor were said to have been involved in an attempted robbery by four men in balaclavas on 16 July 1997 at the Co-op and post office at Glossop. Lally said that he, Hulme, Hamlett, McCartney and Lee Taylor were involved in this offence (although in an interview in January 1999 he had not mentioned Lee Taylor, naming Lee McCartney, son of Alan McCartney, as the fifth person). Shots were fired into the reinforced internal door without effect. One of those present was described as fair and was about six feet tall though in evidence the witness said that she had been too shocked to pay much attention to height. A customer thought one was black, six feet three or taller, very broad and had been carrying a gun. Four men were seen to get into a green Vauxhall Astra, driven by a white male of average height and build, with short fair to sandy hair. One witness saw a man in his late thirties or early forties, and holding a handgun in one hand and a wig in the other, get out of a blue Vauxhall Astra. He was five feet ten.

[23]CCTV footage from the Co-op was viewed in January 1999 by DS Garvey who identified Hulme, as a man he knew well. The jury was shown the film together with another, which showed Hulme coming out of Kelso's shop.

[24]Lally said that they had tested the gun on a piece of wood two days before at Jackson’s Fold Farm near Bury. Hulme, wearing a baseball cap, had previously left a stolen car ready at the scene and whilst he stayed outside the rest, in balaclavas, went in. When the plan failed Taylor ran off, and Hulme got rid of the stolen car, a wig and a cap, and according to Lally he said that he had been seen as he did so. Lally, who himself had a gun, identified Hulme, Hamlett and McCartney (with a pump action shotgun) in photographs from the shop. He thought the person behind himself was Lee Taylor. No Afro-Caribbean man was involved on this occasion.

Offence 9

[25]Lally, Hamlett and Hulme were said to be involved on 8 August 1997 in a robbery at Hancocks, West Gorton of Mr Davies, a Securicor guard, taking a box containing some £15,000. He and the Securicor driver described two men in balaclavas holding handguns, one five feet ten, medium build, white, and wearing shorts, the other taller, possibly six feet, save that Mr Davies thought him of medium build and the driver thought him slim. They were driven off by a man with black hair. The manager described one as five feet eight to ten, very slim, white, in his mid twenties, and wearing baggy shorts, the other six feet or more, similar age and build, and white. Lally said he and Hamlett, who was in shorts, were the men in balaclavas with guns. Hulme in a stolen car was the driver.

Offence 10

[26]Lally said that on 13 August 1997 he, Hulme, Hamlett, Kelso and McCartney were involved in an attempted robbery on a Brinks security van at Pudsey, West Yorkshire. Mr. Waterman was outside the van, felt someone on his back, and was told not to close the van door. In the course of a struggle he and his colleague managed to close it leaving Mr Waterman on the outside. Four men got out of a small red van, three of whom punched and kicked him whilst the fourth stood to one side. A pistol was put before his face as one of the men threatened to shoot him if the door were not opened. A shot was fired, but he was not hit. Mr Waterman grasped the gun, which was dropped, and the gunman sprayed a gas canister in his face. As he walked away he was hit on the back of the head. A witness saw the smallest man, an Afro-Caribbean, in his early twenties, five feet six to eight and stocky, try to hit Mr Waterman over the head with the butt of a revolver. Mr Waterman described a man about twenty-five, five feet eight to ten, medium build, and dark haired. Mr Waterman himself was six feet five, and strongly built. A colleague could say only that one was tanned and five feet three to four.

[27]Witnesses described hearing a shot, hearing car doors slamming, and two white men running away. Various descriptions were given.

[28]Kelso was said by Lally to have provided the red van, and McCartney a Volvo. Lally sprayed the CS gas, but said that he neither had nor fired the gun. One of the others had told him that McCartney had fired it.

Offence 11

[29]Lally said that in September 1997 he, the gunman, Hamlett, with an ammonia spray, and Hulme the getaway driver in a stolen vehicle positioned earlier, robbed Mr McNamara, a Securicor guard, as he was making a delivery to Hollins Road Post Office in Hollinwood Oldham. He was attacked by two men, one of whom shouted to him to hand over the box, and sprayed something under his visor. He felt a thud on the back of his helmet, saw a young man holding a gun, and threw the box as far as he could. The first man was white, eighteen to twenty three, five feet ten, slim, and with short blond hair, the other slim, in his twenties, five feet ten to six feet. Mr McNamara attended two identification parades. He was unable to identify his attackers. None of these appellants stood on either parade. Two witnesses described the gunman as white, fair eye browed, in his late twenties or early thirties, slim, and about six feet tall.

Offence 12

[30]Lally, Beddow and Hulme were said to have robbed Mr Nyland a Securicor guard of about £3000 at the “Shopping Giant” at Droylsden, on 29 October 1997. The Securicor driver saw a red car pull up blocking the van's path. Mr Nyland saw a white man, about six feet tall and average build, running away and a red car (stolen two months previously, and later abandoned) driving off. The front passenger was of medium build and six feet tall and the rear passenger slightly smaller with light very short hair, holding an object like a baseball bat. A witness thought the rear passenger was white, chubby, five feet eight to nine. Ms Broadhurst recognised the second of the two running to the car, who was in her sight for about five seconds from a distance of fifteen to twenty feet, as Craig Turner, whom she had known for twenty years. Craig Turner was arrested but had an alibi and was not charged. Lally said Hamlett, having had an argument with Hulme, was now no longer involved. Beddow, who had a rounders bat and had wrestled Mr Nyland to the ground, became Hamlett’s replacement for this and the following six robberies. He was tasked to put the box in the canal. Lally had a gas pellet gun and was the front seat passenger.

Offence 13

[31]Lally said that on 18 November 1997 he, Beddow and Hulme robbed Mr Webb a Securicor guard of £15,000 outside the Aldi supermarket at Bolton. Mr Webb described two men, one five feet eight to ten and slimmish, with a double-barrelled shotgun. Knocked to the ground he felt three or four blows to his back, he thought from the gunman's companion. His driver said the gunman, white, twenty one or two and about six feet, kicked Mr Webb while he was on the ground. The second man was white, of similar age and slightly smaller. They were driven off in a red car. A security guard at Aldi described the gunman as five feet ten, another witness described the attacker as five feet ten to six feet, medium build, with short dark brown hair.

[32]Lally said that having selected this target, the three of them went there in his Rover (he had changed cars) and an Escort. Beddow had arranged a stolen car for the getaway. He, Lally, had the gun, Beddow, who kicked Mr. Webb, had CS gas. They had cutters and a scanner, and opened the Securicor box at Hulme's house.

Offence 14

[33]Lally said that on 9 January 1998 he Beddow and Hulme robbed Mr Wilkinson a Securicor guard of £25,000 at the Yorkshire Bank in Shaw, Oldham. Mr Wilkinson described two men, one who pointed a sawn-off shotgun at his head, as white with a hat and scarf obscuring his face, six feet tall, of proportionate build, and in his mid twenties. Witnesses described the gunman, who ran away with the Securicor box, as white and slim. Descriptions ranged from five feet to six feet, slim to medium build, shaven- headed in one case and hatted in another.

[34]According to Lally, Beddow was the gunman and had taken the box. Hulme and Beddow had delivered the stolen car to the scene in advance. On the day the robbers had also used Lally’s Escort and Beddow's red Orion.

Offence 15

[35]Lally said in March 1998 he, Beddow and Hulme planned and executed the robbery of Mr Burton, a Securicor driver, at Barclays Bank in Failsworth. Mr Burton saw two men, one six feet, and slim, wearing a dark hat pointing a shotgun at him, the other fatter with blond hair flat as if wet. His colleague saw the gunman, six feet and slim, and a second man five feet six or seven, with brown collar length hair. Seen by another witness standing by the driver's door of a Ford Escort (stolen in January 1998 and on false plates) in which were front and rear passengers was a man of six feet, slim to medium build, with fair close cropped hair a round face, and aged twenty to twenty five. They used the Escort, the Rover and the Orion to get there. Lally took and handed to Beddow the box containing £25,000.

Offence 16

[36]Lally said that on 14 May 1998 he, Beddow and Hulme at Barclay’s Bank Hyde robbed Mr Coleman, a Securicor guard, of £25,000. One of two men held a sawn-off shotgun about two inches from Mr Coleman’s face, before running off to a red car. Lally was the gunman, Beddow the second man and Hulme the getaway driver.

Offence 17

[37]Lally said he, Beddow and Hulme carried out a robbery at the Trustee Savings Bank in Bolton. The victim was Mr Stewart, a security guard. Afterwards a man over six feet tall, dark haired, possibly of mixed race, in his late twenties or early thirties together with another was seen to run to a red Ford Escort, stolen two days previously and later found abandoned.

[38]A Mercedes van driver saw two men attack the guard and then get into an Escort which was moving slowly forward with two doors open. One was about twenty, five feet eleven to six feet, slim, of mixed race, carrying the Securicor box and a baseball bat and he got into the front passenger seat. The other, who slipped as he got into the rear of the car, was white, aged about twenty, five feet eight and stocky. The Mercedes driver turned into the path of the Escort, which mounted the pavement. Witnesses variously described the gunman as white, five feet ten to six feet to six feet two, slightly taller than the other, slimmish, broad shouldered, stocky, with short blond hair, twenty one to thirty three, and the other as white, smaller than the gunman, forty, five feet seven, or six feet, slim, and light haired and dark haired. Lally said he slipped as he ran to the stolen Escort taken there the night before by a friend of Beddow's. Beddow took the box. They were rammed and so drove onto the pavement, saw a police car, got the money out, threw the box away, and escaped in their own cars.

Offence 18

[39]Lally said that on 4 September 1998 he, Beddow, Kelso and Hulme took part in a robbery at the post office in Audenshaw. There had been a delivery of cash at the post office at 11:30 am. A stolen Vauxhall Corsa had been parked in front of the rear door early that morning, and at 11:45 a.m. a witness saw a man of five feet eight or nine break its window and pull it back, then drive a blue car (also stolen) into the door. Lally said the first manoeuvre was his but the second Beddow’s. The brothers who ran the post office heard a loud bang, before being attacked by a man five feet eight and stocky wielding a baseball bat, whom Lally was to say was Kelso. Two others, one about six feet one, with a sawn off shotgun, and the other with a club were seen later to get into a burgundy Vauxhall Cavalier. The attacker was described as white, twenty to thirty, and five feet ten to eleven and stocky. The gunman, who wore a balaclava, was white, and taller than the third man. A Ms Edwards saw two men running off, one quite big and tall, in a balaclava and carrying a bat, the second, in checked shirt and carrying a bat, about two inches shorter. He pulled off his balaclava, revealing a roundish pale face, very short light hair, a "Van Dyck moustache and beard" and he looked nineteen or twenty. Lally said all joined in the planning. He had the gun and Beddow went in with him.

Offence 19

[40]This was a robbery by two men, one with a gun, on 17 September 1998 at the Trustee Savings Bank in Denton. The victims were the same Securicor employees as in offence 16, and they said that the robbers were the same two previously described. The Crown’s case, however, was that the robbers were Lally and Vincent, with Hulme as the getaway driver. Two men attacked the guard one holding a long object to the guard's neck, both aged twenty to thirty, the second with dark receding hair. A photo-fit of the first was compiled by a witness who thought she would recognise him again, but who at an identification parade in July picked out a volunteer. Another witness, who said the gunman was about six feet two and slim, and the other six feet and slim, failed to pick out anyone at the identification parade.

[41]The robbers were collected in a VW Golf, stolen six days previously. It turned into a car park, men jumped out and ran to an Escort. Two passengers were white, in their thirties, one six feet with light hair, the other two inches shorter with dark hair. The number of the Escort was that of Hulme's car. At 11 o'clock that day Sergeant Astley saw a white Ford Escort K848 GTW with two men in it driving very slowly. The driver had short sandy hair. Lally was the passenger.

[42]Lally said that he and Hulme recruited Vincent for this robbery, as Beddow had become unreliable. Hulme having heard the registration number of his car come across on his scanner disposed of the car shortly afterwards. He and Lally both went on holiday.

Offence 20

[43]On 28 October 1998 this was an attempted robbery of a Securicor van outside Barclay’s Bank in Cadishead, Greater Manchester. An officer in Cadishead, suspicious of three men in a black Volvo, prompted observations over a three-week period in anticipation of a robbery. Lally and Hulme were arrested as they were about to carry it out. Hulme had a scanner in his pocket tuned to the local police frequency, and in the car was a walkie-talkie on the same wavelength as one abandoned by Kelso who threw away a wig as he escaped. Later arrested and charged, he absconded before trial.

[44]Kelso featured prominently during the observations, in particular on 21 October, in the vicinity of his home and of the delivery van. On 28 October DC Taylor, keeping observation on Liverpool Road going towards Cadishead, saw him in a white Mercedes, Hulme in a maroon Mazda and Lally in a bronze Rover, all driving in convoy.

[45]Hulme, identified as the driver on some but not all the sightings, owned a Ford Escort seen on a number of occasions, none directly connected to any of the robberies, but consistent with use during the reconnoitres for suitable targets which Lally said had been carried out. Only Hulme was so identified. On 24 April opposite a row of banks in Rusholme, Manchester, the Escort, equipped with two interior mirrors, had been seen parked with two men crouched and looking towards the rear. It drove off at speed. On 28 April it was seen again on a double yellow line in Oldham. The two occupants were watching NatWest Bank where a security van was unloading. It drove off, returned, and drove off again. Flagged down by the police the driver identified himself as Hulme, and said that he had stopped to use his mobile. The passenger, Lally, gave his name as Raymond Hamlett.

[46]In support of Lally the Crown relied on telephone calls, as set out in a schedule, and invited inferences from the relationship of the calls to the robberies. During 1997 there were about 500 calls from the home of Lally and his wife to Hamlett's mobile. These were accepted as being domestic and not significant. Two calls to Hamlett's mobile from the landline at 9 Greer Street were said to be connected with the robbery in Openshaw on 14th June 1997, offence 7. As to offence 8, the robbery at the Co-op in Glossop on 16th July 1997, on 1 July 1997 a call went from a number associated with Taylor to one marginally different from Hamlett's mobile, said to be a misdial; on 11th July a call from the telephone of Hamlett's girlfriend to McCartney's home number; on 16th July, an hour after the robbery, a call from Hulme's landline to Hamlett's mobile and, a minute later, from McCartney's home number to Hamlett's girlfriend. In relation to offence 10, the attempted robbery of Brink’s in Pudsey on 13th August 1997, two calls on 11 August 1997 went from Hamlett's mobile to McCartney's landline. As to the other seven offences in which Hamlett was said to have been involved other telephone evidence was led.

[47]As regards McCartney, the Crown relied on six calls. In relation to offence 8, on 1 July there were two calls from his landline. First, to a number so closely resembling one used by Hamlett as probably to be a misdial, and, second, one to the landline at Jackson’s Fold Farm, where Lally said he and McCartney test-fired the gun into a piece of wood. On 16 July, an hour after the robbery, a call went from McCartney's home number to that of Hamlett's girlfriend. In relation to offence 10, on 5 August a call from Hulme's landline went to that of McCartney, and on 11 August two followed the same route.

[48]As to Beddow, no telephone evidence linked him to any co-defendant save between 16 April and 8 September 1998, covering offences 16, 17 and 18, when eighty five connections were made between lines associated with Hulme and Beddow's pager or mobile. They ceased shortly after offence 18, when Lally said that Beddow was dropped from the team.

[49]As to Hulme, the Crown pointed to significant telephone contact between his number and that of Lally at the time of offence 19, the robbery at TSB Denton on 17th September 1998, and to a number of calls between him and Kelso on 7 and 13 October 1998.

[50]Of the three acquitted defendants, as to Wallace the Crown relied on one call the day before offence 3, robbery at Kwiksave Oldham on 15th January 1997, to his landline from Hulme's landline. As to Vincent it relied on seven calls, four in the three days before offence 19, robbery at TSB Denton on 17th September 1998, to his number from Hulme's, and three shortly afterwards, to his mobile from Lally's mobile. As to Taylor, it relied on four calls from the home of his girlfriend, two on 1 July 1997, one to Hulme's landline, one presented as a misdial to Hamlett's mobile, and two on 9 July, shortly before offence 8, the attempted robbery in Glossop, one to Hulme's and one to Lally's mobiles.

Defence Case

[51]Lally was challenged as unreliable. He agreed his motive in helping the police was self-serving, so as to derive maximum benefit. He denied that for whatever reason, possibly to protect people, he had wrongly named the defendants. Other evidence contradicted his account of the individual offences, and the telephone evidence was neutral. Generally there was no evidence of maker or receiver, and the telephones, mobiles or landlines, were of friends, family or innocent acquaintances.

[52]Save for McCartney and Taylor all the defendants gave evidence.

[53]Hamlett spoke of his previous convictions, including one for robbery twenty-two years earlier, when he was sentenced to five years imprisonment. Since 1982 he had none for dishonesty. He denied involvement in any of the offences. Lally, his brother, irrational, violent, and addicted to cocaine, had lied about him because of the bad blood between them. There had been unremitting family conflict and their father had evicted Lally, of whom Hamlett was frightened, from the family home. After Lally was involved in a robbery at Booth Hall children's hospital Hamlett wanted nothing more to do with him. Lally suspected his wife and Hamlett of having an affair during Lally’s last prison sentence. When Hamlett found him taking cocaine at one of his, Hamlett’s, properties in Greer Street Lally had fired a gun at him. Their brother David Hamlett, who was serving a life sentence, gave evidence confirming the bad relationship between the two, and described Lally having lost his temper with him and having shot him in the hand.

[54]Hulme was his tenant at 9 Greer Street, with daughters of the same age they got on well, and there was frequent telephone contact between the households. He was good friends with McCartney and often spoke to him over the telephone. Though he knew Kelso he did not associate with him. He knew Wallace only as a tenant, and did not know Taylor.

[55]On 14th June 1997, offence 7, the robbery at Aldi Openshaw, he drew up behind police vehicles in Greer Street and an officer told him about the robbery. He went into 3 and 5 Greer Street to see if anyone were there. He neither saw nor received a call from Lally that day asking him to make a 999 call, and any such call was nothing to do with him. He doubted he had his mobile with him. As to offence 9, the robbery on August 8th 1997 at West Gorton when Lally described him as the robber in shorts, he had an obvious tattoo on one leg, which none of the witnesses had mentioned.

[56]Interviewed under caution, being unaware of all that was being said about him, he was silent about his bad relationship with Lally. On the advice of his solicitor he answered no questions. In the twelve month period of his alleged involvement in the conspiracy there were, he accepted, some five hundred telephone calls from the Lallys' address to his mobile, and twenty to that landline from his mobile, but this was not exceptional. Mrs Lally frequently telephoned him for support. No telephone evidence was relied on in seven out of the nine offences in which he was said to have been involved.

[57]Hulme had previous convictions but had always pleaded guilty. When unemployed, he sold counterfeit clothing. He denied involvement in any of the robberies save for offence 20, the attempted robbery in Cadishead 28th October 1998, and as to that his defence was duress. He had known Hamlett for ten to fifteen years. Kelso was a good friend. Taylor and Beddow were acquaintances from whom he sometimes bought cannabis. Taylor also sold counterfeit clothing with him. He knew Wallace and McCartney slightly, and had not spoken to Vincent for ten years.

[58]He had known Lally for about eighteen years, but by 1997 was seeing him less often, although they spoke on the telephone. He moved out of Greer Street after Lally and Hamlett’s row and the firing of the gun. Lally's increased use of cocaine affected his mind and made him more violent. In November 1997 when Hulme moved to Gordon Street Lally visited almost daily, and often used the telephone in Hulme's absence. Hulme’s white Escort was registered in a false name as an insurance deception on acquisition in 1996, its two rear mirrors an aid to teaching his stepdaughter to drive. Stopped by a police officer on 28 April 1998, he had given Lally a lift and had paused to use his mobile. He denied that he was in the car when it was seen on other occasions. Others, Lally and Kelso for example, often borrowed it. He sold it in September 1998 to repay £1000 of the £2000 he owed to Lally.

[59]On 27 October 1998, the night before offence 20, the attempted robbery at Cadishead, Lally, under the influence of cocaine, ranting and raving and threatening him with a gun, demanded the balance. He insisted Hulme should join in a robbery the following day. Hulme, terrified, agreed. His role was restricted to waiting in the car whilst Lally snatched the box, and then to driving off. The third robber was not Kelso.

[60]On the advice of his solicitor, he made no comment in interviews save for during the third, when he denied involvement in any robbery. He did not want to tell of Lally's threats and then face him on remand in prison.

[61]He denied involvement in offence 8, the attempted robbery in Glossop on 16th July 1997, and called Mr Harrow of Callogate Imagery Bureau to question the accuracy of the evidence from DS Garvey that it was he on the video. As to offence 19, the robbery at TSB Denton on 17th September 1998, he was at home. Lally had taken his car. The false moustaches found at his and Lally's addresses had been acquired by Lally for use in a play at the children's school.

[62]Rostron, a shirt maker, gave alibi evidence for Kelso, as to Kelso’s alleged involvement on 4 September 1998 in offence 18, robbery in Audenshaw, thus casting doubt on Lally’s reliability as to that occasion and generally.

[63]Beddow set out his previous convictions and said that he had always pleaded guilty. Arrested on 20 May 1999, on the advice of his solicitor he made no comment in interview. He denied involvement in any of the offences, and there was nothing that he could have said, since he did not know, at interview or at trial, where he was on any of the germane dates.

[64]He had never met Kelso. A small-scale cannabis dealer, he met Hulme in 1998 and became his supplier, hence the telephone calls from Hulme over four and a half months. Beddow's calls as a whole were more consistent with regular drug dealing than with involvement in the robberies. There was none relevant at or close to the first four offences in which he was said to have been involved. In April 1998 in a pub Lally offered him cocaine at this their first meeting, again a few weeks later, and again on a third occasion, when Beddow took some. Lally then became violent, made him drive him to a dealer, and thereafter Beddow was in fear of him. Lally began to demand lifts or money, and in August, accompanied by a black man, threatened Beddow with a gun and forced him to hand over the keys to his Ford Orion. The black man drove it away and Beddow never saw it again. Lally confirmed that he took the Orion but only because it had been identified on one of the robberies. As to offence 12, the robbery in Droylesden on 29th October 1997, the second man, said by Lally to have been Beddow, was identified by a witness who knew him well as Craig Turner. As to offence 14, robbery at the Yorkshire Bank on 9 January 1998, its previous owner gave evidence that Beddow did not have the red Orion until 13 February 1998, the month after the robbery.

[65]McCartney did not give evidence. Mr Price QC submitted that there was nothing in the telephone evidence to elevate it above normal day-to-day contact.

[66]Vincent and Wallace gave evidence and were acquitted.

[67]Vincent had changed his name by deed poll in 1990 to distance himself from Lally. He had previous convictions but none since 1989. Arrested in May 1999 he had had no idea of his whereabouts on 17 September 1998, the date of offence 19, the only one in which his name featured, and he answered no questions in interview for that reason. He had since remembered that he was with his friend Ryan Jones, whose car was being fitted with an alarm system, which Ryan Jones confirmed in evidence. On 15 July he stood on an identification parade attended by witnesses as to offence 19, and was not picked out.

[68]Wallace repeated what he had said in interview, namely that he was unable to remember his whereabouts when offences 2 and 3 were committed. He knew Hulme, Hamlett, and Lally, although he had had little contact and no trouble with the latter. He was mystified by these allegations. Nothing in the telephone evidence supported Lally's account.

[69]He was not picked out as the buyer of the red van by Mr Kirwin who had sold it the day before offence 10.

[70]Taylor did not give evidence and had answered no questions in interview. Not having been asked until nearly two years after the date of the one offence in which he featured, it was unsurprising that he could not remember. The telephone calls relied on were made several days before the offence. Evidence from respectable civilians as to description did not accord with his appearance.

[71]The jury retired at 1.02p.m. on 13 April and separated at 4.31p.m. It retired again at 10.03a.m. on 14 April, and at 3p.m was separated again. It retired again at 10.02a.m. on 17 April. At 2.01p.m. it returned unanimous verdicts of guilty on Hamlett (count 1) and Hulme (counts 1 and 2). It was given a majority direction, retired again at 2.03p.m. and separated at 4p.m. On 18 April a juror became ill, and the others were sent home. On 19 April they retired at 10.01a.m. and at 4.07p.m. returned a verdict of guilty by majority 10-1 on McCartney and a verdict of not guilty on Taylor. They were separated. On 20 April they retired at 10.06a.m., returning at 12.07p.m.with a verdict of not guilty on Wallace. Finally, they returned a verdict of guilty by majority 10-1 on Beddow and of not guilty on Vincent. Grounds of appeal. Hamlett.

[72]Inconsistency of verdicts.

[73]Errors in the summing up as to the drawing of adverse inferences and as to identification.

[74]The jury should have been discharged on the 27th March 1997.

[75]The unsafety of a conviction based upon the uncorroborated evidence of Lally.

[76]Material non-and late disclosure. Beddow.

[77]Beddow’s conviction depended wholly on the credibility of Raymond Lally whom the jury found to be unreliable in respect of other defendants who were acquitted.

[78]The independent eye witness evidence available in Beddow’s case tended to undermine rather than to support Lally’s evidence. The judge failed in his summing up to highlight the differences between those witnesses’ descriptions of the man alleged to be Beddow and his actual appearance.

[79]Telephone evidence relied on by the Crown did not support Lally’s evidence and was no more cogent than in the case of defendants who were acquitted.

[80]Having rejected Lally’s evidence in the case of three defendants, there was no logical or safe reason why the jury should have accepted it in the case of Beddow.

[81]The judge erred in directing the jury that it could draw an adverse inference from Beddow’s failure to mention in interview that he had not met Lally until April 1998. Consequently Beddow’s trial was unfair within the meaning of

Article 6(1) ECHR

. Condron and Another v. United Kingdom 2000 CLR 679. McCartney.

[82]McCartney’s conviction depended wholly on the evidence of Raymond Lally, whom the jury found to be unreliable in respect of the defendants acquitted.

[83]The independent evidence available from eye witnesses in the case of McCartney tended to undermine rather than to support Lally’s evidence.

[84]The telephone evidence relied on by the Crown did not in fact support Lally’s evidence and was no more cogent in McCartney’s case than in the case of those defendants who were acquitted.

[85]Having rejected Lally’s evidence in the case of three of the seven defendants, there was no logical and safe reason why the jury should have accepted it in the case of McCartney. Hulme – as to conviction.

[86]The judge erred in rejecting an application to discharge the jury after a juror complained of intimidation.

[87]The judge erred in rejecting an application to discharge the jury following further disclosure of information about Lally’s activities and dealings with the police. Sentence.

[88]There was undue disparity between the sentence imposed on Hulme and the sentences imposed on the co-accused. Late and Non-Disclosure.

[89]Mr Wood QC’s submissions for Hamlett were adopted on behalf of all other appellants. Mr Wood puts this ground in two ways. First, as to non-disclosure, the prison file relating to Raymond Lally, a draft “text”, and the accurate factual basis for TIC 19 was in each case known to the Crown but not disclosed. The consequent disadvantage of which he complains is the diluted effect of cross-examination advanced to establish the relationship of Lally to the police in the late 1980s and the early 1990s, Lally’s malicious desire to implicate Hamlett, and his initial willingness, later withdrawn, to give evidence against Hamlett on an earlier occasion. In 1987 a robbery occurred at Royal Bank of Scotland, Hyde, in which there featured a “lollipop” stick used by school crossing attendants. In 1988 Hamlett was tried and acquitted. Lally gave information to the police about him, and was initially though not ultimately willing to give evidence against him.

[90]At trial Mr Timothy Horgan counsel for Hulme in cross-examination pursued what he suggested was Lally’s status as a Participating Informant. Before us the term was used to mean not a man who on notice to the police took part in an offence, was allowed to escape or was “written out of the script”, but rather one who enjoyed a corrupt relationship with police officers, to their knowledge taking part in offences for profit. Not only it is submitted would there have been a qualitative if not quantitative difference to that cross-examination, but Mr Cosgrove QC, counsel for Hamlett, would have been certain to take the same tack.

[91]Second, as to late disclosure, the complaint is that on or about 27th March 2000, four weeks into the trial, long after Raymond Lally had completed his evidence, and as the case for the Crown was about to reach its conclusion, Mr Marks QC realised that ever since, during the trial, they had had custody and control of Lally, police officers had been in possession of his prison file.

[92]On the 30th March 2000 Mr O’Byrne in a PII application placed before the judge two letters extracted from Lally’s prison file from him to the prison Governor, four documents retrieved from the “Holmes” computer programme, and what was called the “Burton Copeland” witness statement of the 24th March 1999 made by Lally.

[93]That witness statement reads in part as follows:

“In this statement I wish to detail my dealings with solicitor Mike Mackey and his firm Burton Copeland Solicitors, Manchester. Burtons are presently representing my brother Peter Hamlett who, as I understand, is presently charged with two attempt armed robberies as a direct result of the evidence I have previously statemented…. On 16th July or June 1988 I was sentenced at Bolton Crown Court to a ten and four year sentence to run concurrently in respect of two offences of robbery. Initially, leading up to trial I was represented by Mr Mackey for both matters. Whilst on remand and without Mr Mackey’s knowledge, I assisted the police in the recovery of a quantity of firearms and a lollypop stick that had been used in a few robberies involving Peter Hamlett, Paul Duffy, Andy Vassal and a lad called Glen, a lad called Kingsley and Dave Gorton. At that time Peter Hamlett owed me £1,000 that I’d lent him previously. He ended up being arrested and interviewed about the robberies that were connected to the firearms and lollypop stick that I’d put the police onto. When he got out I was asking him for my money back…. I was interviewed by the police over a few days during which they questioned me about numerous armed robberies over a two-year period. The way the questioning was going I started to review my life and the mess I was in. I even started to think that Mike Hulme was talking to the police. Prior to my arrest at Cadishead I’d made a sub conscious decision to stop doing armed robberies. This was not at the front of my mind and I began to consider my situation and felt that it would be best for me to make a clean break and to admit to the police everything I had ever done criminally. By doing this I thought, at the time, that I may get a reduction in sentence, albeit I accept that I’m looking at an automatic life sentence. Having served a life sentence I would never again have been allowed to contact my criminal associates many of whom were family members. Thinking a bit deeper I realised that over the years I’d been used by Peter Hamlett and others and had always been put forward as the front man, usually with a gun in my hand. However, I do accept totally that I committed each robbery willingly, because of the lifestyle it gave me. I was eventually remanded in custody to Strangeways and started to think of the way to approach the matter….”

[94]Thus it is said counsel for Hamlett was denied material to which he was entitled and, therefore, was inhibited from making informed decisions. When he elected not to seek the recall of Lally, he did so without an adequate opportunity to investigate what, had it been available to him, he would inevitably have deployed in cross-examination.

[95]As to the prison file, the defence had sought it from the Crown, who had passed the request on to the prison authorities, who declined to disclose it until relevance and particularity had been established. This was conveyed to the defence, the Crown took the view that the ball was in their court, and the matter was not further pursued by any party. No one thought to subpoena the Home Office so as to secure its production. The Crown seeks to distinguish the position here from that in Hickey and Molloy (Unreported transcript dated 30th July 1997)in whichthe relevant information was a cell confession, whereas Lally was what is commonly known as a “supergrass”. This is a distinction without a difference. In our judgment in a case such as this when pivotal evidence comes from a man with a known prison record the Crown should at an early stage in its preparation equip itself with his prison records for all the obvious reasons. Not only might they include matters prejudicial to its case and disclosable to the defence, but also the Crown might find its case strengthened.

[96]What was not disclosed included an entry dated 3rd September 1996 recording the release of Lally on compassionate leave from 1300 hours to 1330 hours on 5th September 1996 so as to attend an outpatient clinic in Rochdale Infirmary. This was the day of robbery number one, committed at 1150 hours. Mr Cosgrove had assumed Lally to be in prison. Mr Wood contends that at least available for cross-examination was the potential for Lally to commit the robbery before returning to prison. Mr Marks QC handed up to us documents from the files, which establish not only that Lally’s leave was restricted to half an hour well after the robbery but also that he was to be accompanied by a prison custody officer. The point has no merit.

[97]An entry by a prison officer dated 2nd November 1998 appears on its face to disclose information from Lally, not known to the police, as to Hulme and Kelso, said to be involved with him in seven armed robberies and a conspiracy. Cross-examination arising from it might have explored whether there had been yet more contact with prison staff, the point going to Lally’s status and/or effectiveness as an informant. Mr Wood suggests that other entries for 1995 and 1996 show clear hypocrisy on the part of Lally as he tailored his reactions so as to progress toward the earliest possible release. We find nothing in these points. If on the material before the jury he was not already established as a man who had his own interests firmly at the forefront of his mind, it is difficult to see how these documents might have made a difference.

[98]Mr Marks cross-examined Hamlett on two Visiting Orders, to suggest that Hamlett had visited Lally in April, July and August 1996 on four occasions. Mr Wood relied upon Phillipson

(1990) 91 Cr.App.R 226

as establishing the unfairness of that course. However, Mr Cosgrove had led the topic of whether there had been such a visit or visits and, the matter having been raised, Mr Marks was in our view entitled to deal with it in cross-examination by showing to Hamlett documents which appeared to make the position plain. In any event Hamlett did not deny having visited Lally, conceding that had he been specifically asked to visit by Lally him he may well have done so, and was not helped to recall the position by sight of the Orders. There is little, if anything, of substance in the point.

[99]When sentenced on 2 May 2000 Lally sought to have taken into consideration a total of 39 offences, principally though not exclusively robberies and attempted robberies. Save for those echoed in the indictment not a single document exists in respect of any such offence, all having been lost or destroyed. On the TIC form dated 27th April 1999 and signed by Lally, offence no. 19 is recited as a robbery at Barclay’s Bank, Trafford, Manchester, but is said by Mr Wood and by the Crown to be misdescribed, and that in truth this was a robbery at the Royal Bank of Scotland (“RBS”) in Stretford. We read a letter dated 7 December 2000 from RBS establishing that in about July 1990, rewards in respect of bank raids at its Stretford Branch were paid out to the Chief Constable of the Greater Manchester Police, and to two named civilians. Nowhere is there a written suggestion that the monies went in whole or part to Lally, who is not named. It is not in issue that Lally did not participate in the “lollipop” robbery, of RBS not in Stretford but Hyde, of which in 1988 Hamlett had been acquitted, and as to which a £2,500 reward was paid, as the witness statement of the 28th February 2000 of DCI Gardner makes plain.

[100]The so-called concession as to misdescription was made not by Lally, but by the Crown. The point of this ground, which Mr Wood conceded is a minor matter, is that if it were right that TIC 19 should have reflected not Barclay’s but RBS Stretford then Lally was effectively securing a reward in respect of a robbery he had committed and as to which he also gave information. Disclosure would have prompted cross-examination on the double profit he made from his informing and the depths to which he was prepared to sink for gain.

[101]Whether or not the Crown sought to concede a “misdescription”, the evidence was that Lally admitted robbery not of RBS but of Barclay’s Bank Trafford. The TIC Form is Lally’s document, constitutes an admission, and we were referred to no material sufficient to fortify the point as to double profit which Mr Wood seeks to make. We reject it.

[102]On the 14th July 1988 in the Crown Court sitting at Bolton, Lally was sentenced to 10 years imprisonment for robbery, concurrent with a term of four years which he was already serving, also for robbery. By February 1989 he had been re-categorised as a category B prisoner and transferred to HMP Garth. In fact he had been remanded in custody since 20th July 1987, a period of some three years, and was in the normal course of events approaching the earliest date for consideration of parole.

[103]Between 1990 and 1992, in each case whilst on Home Leave, Lally committed two armed robberies (TICs 26 and 27). On the 6th August 1990 his wife received the £2,500 reward. In a letter to the CPS of 16th February 2000 a member of the National Crime Squad wrote where relevant:

“Lally was first registered as an Informant on the 27th April 1990 by Detective Chief Inspector Gardner, …. The first recorded payment to Lally was on the 6th August 1990 for an amount of £2,500.00. The second recorded payment was on the 11th October 1990 for an amount of £20.00, the third and final recorded payment was on the 3rd January 1991 for an amount of £20.00. At the time these payments were made, the current Informant Handling Procedures were not in place. …there is no other supporting documentation regarding Lally’s involvement as an informant.” …there is no other supporting documentation regarding Lally’s involvement as an informant.”

[104]This document was served on the defence on 6th March 2000, just before the trial began. We compared it with the witness statement of DCI Gardner who there set out his recollection of seeing Lally three times whilst he was in custody and twice whilst he was on Home Leave.

[105]On 9th August Lally was granted day parole from which he absconded. This was recorded as compassionate leave, his son having fractures of both arm and leg. Before the jury an Admission read :

“On the 9th August 1990 Raymond Lally was granted Home Leave for family reasons. He failed to return and was re-arrested on the 15th March 1991.”

Based upon the draft text, in which Lally described his son as perfectly well when seen, and said that DCI Gardner had apparently arranged the Home Leave via his contacts in the prison, the compassionate leave is now said to have been a device. Not only does the qualifying “apparently” significantly weaken any possible point, but if that were not enough to dispose of it, documentation from the prison file shows that three members of the Probation Service also refer to the boy’s health. DCI Gardner wrote “…at no time did I ever engineer Home Visits for Raymond Francis Lally.” Thus, for the appellant to fortify his assertion that for an unknown motive DCI Gardner had been complicit in the temporary release of Lally, based upon deceit, it must follow that the three Probation Officers were parties to the deception. There is nothing in the point.

[106]Lally was not recaptured until the 14th or 15th March 1991, although from 8th March he had been in police custody in Oldham.

[107]For some 7 months whilst unlawfully at large, on the 11th October 1990 and on the 3rd January 1991 he received payments from police of £20, was granted Home Release from 24th to the 27th January 1992, this time returning, and by May 1992 had been re-categorised to D status and transferred to HMP Rudgate. On the 23rd October 1992 he was given more Home Leave, absconded, and committed TICs 13, 18 and 37, that is two attempted robberies and one robbery. He was re-arrested in October 1994 having spent some 744 days unlawfully at large.

[108]This, submits Mr Wood, is a surprising prison record for a man prepared, as was Lally, to flout the rules. It is his contention that Lally was a Participating Informant, defined as we have earlier set out. He took us to passages in Lally’s debrief of the 21st December 1998 which read where relevant as follows:

“No I came out on Home Leave, and I was away for two years, I was on my toes for two years, and I come out first time for six months and then times I was, that’s what it is, it you get into Trevor Gardner, Crime Squad. There is others what he asked me about I had to put over to him cause. “ In a later debrief interview “…. Then it come to Peter, Dave Gorton, they brought me on a bank job and there was Alan and I think of the other name now, I give these names before… to, Trevor Gardner, who come in when I was going to get well when I was on a robbery for Blackpool and he shown me some photographs and I picked out Alan I don’t know his second name a scouse lad, Alan, Gary, Gary the scouse lad as well I can’t think of the second names, they was on a bank job with me Peter er and Dave Gorton…. Later, “no, Trevor Gardner knows who they was cause he asked me to get the photos out and I picked them out because I wasn’t sure of their names, the second names. They was on the Hyde bank job with Peter. That was Peter, Dave Gorton, Gary, Alan, and I think I am not a 100% but I think Alan McCartney was on that one as well.”

[109]At trial Mr Cosgrove for Hamlett, confronted with the late disclosure we have rehearsed, had to make a tactical decision whether to cross-examine as to Lally’s earlier offending history and contact with police, or whether, as he did, lightly to touch upon but not to pursue it in the depth explored by Mr Horgan for Hulme. Lally’s abscondings having been led, Mr Cosgrove cross-examined about DCI Gardner, and Lally agreed that in the 1980s Gardner made plain that the police were interested in Hamlett. Mr Horgan, on the other hand, challenged Lally as to detail. Lally claimed that he provided Gardner with information about the criminal activities of others, was rewarded by him for information received, and the £2,500 reward authorised by Gardner was paid to Lally’s family whilst Lally was unlawfully at large as Lally said Gardner knew him to be. He denied that he had been informing to Gardner before he was convicted in 1987 of the Bolton Crown Court robbery, in respect of which in July 1988 he received a concurrent sentence of 10 years despite it having been committed whilst he was on bail for another robbery.

[110]Available to the Crown during the currency of the trial was what has been termed a “draft text”, a title that has puzzled us. So far from being a text in the accepted sense of the word, that is, information to a judge supplied and signed by the officer giving it, this appears to be a statement made by Lally himself. It is headed “Raymond Francis Lally. Schedule of Information Given to Police and Subsequent Results. (Draft)” and was the subject of a public interest immunity application on 28th October 1999. It was subsequently echoed and enlarged, though not significantly, in a document which the Crown did not have at trial, headed as before save for the substitution for “(Draft)” of “Information and Assistance to Police at or about the Time of Arrest in 1987.”

[111]In the Draft Lally wrote:

“After sentence at Bolton, I went to Strangeways, and remained there for 12 months; I was in fact with Peter Hamlett, David Gorton and Shaun Flannagan. They themselves had been remanded by this stage following investigation by the police and with the assistance of my information. The lads suspected that there was a ‘grass’ and although they did not implicate me in this, it was a stressful time for me. I was then allocated to Garth, and whilst I was there I then asked to see the Police, and the second officer, whose name I cannot now recall, came to see me. I wanted to know why nothing had been mentioned to the judge at the time of my sentence and I was also considering an appeal and wanted to know if they could be of any assistance. He was accompanied by a second officer, whose name I cannot now recall. The officers said that they couldn’t comment about the judge not being told about the assistance I had provided. They asked me if I was prepared to give evidence against Peter Hamlett, Dave Gorton and Shaun Flannagan who were awaiting trial on bank robberies and other robberies. I told them that I was not prepared to assist to that extent. However, I did provide information about drugs and alcohol going into the prison via prison officers, about a gun that was in the prison. I do know that the prison was searched a couple of times as a result of the officers contacting the prison authority. The officers came to see me again, this time the second officer but accompanied by a new officer whom I recall had white hair. I got the impression that he was a senior officer. He was again asking me if I was prepared to give evidence and in fact become a supergrass. At this stage there were all sorts of rumours flying around me and I was getting worried. The second officer with white hair, came to see me again, in fact I saw him in the security area of the prison, he said he knew the security officers, and he told me that he would be able to introduce me to the Solicitor who represented Lenny Pilot, who I knew had been a supergrass. This white haired officer in fact took me out of the prison and they took me to a police station in Lancashire and I met this Solicitor. In fact it was arranged that Philomena would be at present at this meeting. I don’t know which police station I was taken to but I was left in a room alone with Philomena and we had the opportunity of talking together, and then the police returned with the Solicitor. He explained the role of a supergrass, I said that I would think about it, and I was returned to Garth. The rumours were still flying around the prison, and a Security Governor saw me, and I was moved to the block. After a couple of days I asked to go back on the wing. The white haired officer who was with a young officer again saw me, and I asked to be moved but they said that they couldn’t assist me. That was the last time I ever saw him. Basically I was blanked by a lot of people after that because it got around that I had been seeing officers in prison. I was transferred to Kirkham in 1991/2 because of the Strangeways riots. There was no space and therefore a lot of us were reallocated to Cat D. At Kirkham I was visited by the probation officer that told me that my son had been in an accident and I was to be allowed compassionate leave. I saw my son, there was nothing wrong with him, but Trevor Gardner had been in touch with Phil prior to me getting out and asked Phil to ask me if I would meet him on the service station on my return to Kirkham. Trevor had apparently arranged the leave with his contacts in the prison and probation. I met Trevor Gardner, I was late, and he asked me to follow him to another police station, I don’t know which one now, but I went upstairs. I was with Phil at the time and he wanted me to admit to a Post Office robbery and the Rochdale robbery. He was trying to persuade me to admit these as prison right off’s rather than be gate arrested. Micky Wallace had been arrested and in fact admitted these offences. I told Trevor Gardner that I would think about it. I was at this stage late returning to the prison, and I knew that if I were late I would be moved back to Garth. Trevor Gardner offered to ring the Kirkham for me, but I knew that would only fly round the prison, when I got to the gates I just turned round and drove home. I was at large for six months. A police officer got in touch with Phil and gave Phil his house number, and I contacted him. He said that we would not arrest me and that he wanted information on Peter Hamlett. I got into his car, and he drove towards Oldham, and we talked about Peter and his associates and what they had done. I was obviously still not happy about not having a “text” in Bolton and he said that was not down to him but to the other officers. At this stage the officer gave me as alias of Arthur, and said that if I ever wanted to contact him to use that name. I was subsequently arrested by the Serious Crime Squad at 8 Edmonton Road, Newton Heath. Phil was pregnant with Portia at the time; she was born on the 16th June 1993. I was taken to Longsight Police Station but transferred to Oldham where I am visited by Trevor Gardner and another officer who was concerned about Peter Hamlett accompanied him and he was seeking further information. He also wanted me to admit to the Post Office and builders yard in Rochdale. I told him that I was expecting a visit from Phil and he arranged that I had an open visit with Phil.”

[112]Cross-examined by Mr Horgan, DCI Gardner accepted he had seen Lally probably six or seven times in total and that one of those meetings was during a Home Leave when Gardner, Lally being late for his return to prison, telephoned the prison to explain the situation, (although Lally later absconded). He denied that Lally was allowed by the police to commit offences with impunity because he was providing information or that at any stage when they met he was aware that Lally was unlawfully at large.

[113]All of these answers, submits Mr Wood, are inconsistent with the Draft.

[114]In a PII hearing of 29th October 1999, Mr O’Byrne’s stance was that it should not be in the public domain but in due course, perhaps for sentence, should be before the court. The judge decided that it need not be disclosed, that he would have it to hand during the trial, and, were anything in it apparently contradicted, said it might well be that it should then be disclosed. The Crown undertook to compare it with what Lally had said and might say. Both approach and ruling were in error. The document could never properly have been subject to PII, proclaiming as it does on its face potential assistance to the defence and revealing a version of events different from the account given by Lally in the Burton Copeland witness statement. Even if it were subject to PII, cross-examination by Mr Horgan in which he challenged Lally should have alerted the Crown, and the judge, to its potential effect. Mr Cosgrove it is suggested would have deployed it and taken a different tack in cross-examination, and Mr Horgan would have been fortified in the cross-examination he did advance. Made available to counsel in June 2002 consequent upon a hearing in this Division of the Court of Appeal, it was immediately plain that it would have put flesh on the bones of cross-examination. Those, in summary, were the arguments as advanced by the appellants.

[115]Those matters identified by Mr Wood as discrepant with Lally’s words on other occasions or with the evidence of others are advanced as novel or as follows:(i) that Gardner met Lally for the first time in the cells at Fleetwood Magistrates’ Court, whereas Gardner says in his witness statement that first meeting was some two months later and in prison. In cross-examination Gardner said they met “ in Fleetwood”:

(ii) that the officers visiting him in the cells were interested in Hamlett. This is plain from the interviews of Lally, and could not have come as a surprise to those defending Hamlett:

(iii) that Lally gave to police information about six people whilst in interview he spoke of “ about four”:

(iv) his assertion that he gave information about firearms and as to the lollipop robbery. naming Hamlett, McCartney, Gorton and Scouse Alan. All those names he had already given in interview:

(v) he recorded his refusal to give evidence against Hamlett, Gorton and a man named Flannagan. In Admissions before the jury his intention to give information as to firearms was set out, but so also was his willingness to give evidence, the only area of difference thus being his expressed willingness or unwillingness.

[116]It is plain that the contention Mr Wood advanced that this was “new and different” is not made out. Whether Gardner promised not to arrest Lally and wanted information on Hamlett, both Lally and Gardner had dealt with this in evidence. Finally, Mr Wood reminded us of the evidence of Supt Smith, the Senior Investigating Officer, who refuted any suggestion that because he was giving information about armed robberies Lally received special treatment, that is that he was not arrested for known offences. The draft was said to have provided the ammunition to “demolish” Supt Smith.

[117]In our judgment the totality of topics from the draft which can be shown as novel or discrepant is small and even taken compendiously cannot be said at its highest to advance the case for Hamlett. We do not accept, in the context of the case, that a self-serving document such as this might have “tipped the balance”.

[118]The subsequent text, supplied by the Registrar of Criminal Appeals, is said by Mr Wood to contain elements of pure fantasy. Lally describes a move to HMP Strangeways which coincided with the beginning of his help to Gardner as to problems in the prison. He claimed knowledge of inmates as well as prison officers, that he met Gardner in the prison and presented him with a package of information and intelligence, and that as a result the prison was thoroughly searched at least three times, drugs and ammunition recovered, and inmates reacted so as to provoke the well-known prison riots. This we were told would have been deployed at trial within the cross-examination of Gardner, who is not accepted by Mr Wood as a witness of truth, and of Lally.

[119]Disclosed after Lally had completed his evidence were documents derived from the “Holmes” computer programme. On their face they showed Lally implicating Hamlett, McCartney and others in robberies, and other named men in drugs-related offences. The complaint is that had disclosure been timeous its content would have been deployed in cross-examination, and the decision not to seek the recall of Lally is one Mr Cosgrave would not have made.

[120]Mr Wood complained initially that there had previously been disclosed to him a letter of 24/6/2002 from the National Crime Squad to the CPS which suggests that a robbery at McBride’s in Middleton, in respect of which Lally gave information about Hamlett, was committed in 1988 whilst Hamlett was remanded in custody. However, on Friday 27th March 2003, Mr Marks showed Mr Wood previously undisclosed intelligence, which makes plain that there was also a robbery at McBride’s in 1987. The point has fallen away.

[121]It is said that Lally can be shown to have lied in respect of the “lollipop” robbery when he claimed to have assisted police officers in the recovery of the lollipop stick. Statements available from Mrs Newton, the lollipop lady, and from a Mr Smith, taken together suggest that the lollipop had been found in an abandoned van on an occasion different from that identified by Lally. Had the defence been aware of it, cross-examination of Lally could have challenged whether he had given any assistance to the police at all. It is difficult to see how this point advances the case for Hamlett.

[122]Mr Marks challenged Mr Wood to nominate any document disclosed late during or after the trial which, as he put it, would if disclosed timeously have provided the bullets to make it worth Mr Cosgrove’s while risking the recall of Lally. We are satisfied that none has been identified.

[123]Mr Marks concedes that all the material we have considered should have been provided in advance of trial, though he reminds us that the Crown was unaware of some of it at the time.

[124]As to the three areas of late disclosure, that is the Burton Copeland witness statement, the intelligence material, and the extract from the prison file, and of the two disclosed after the trial, that is the text and the prison file in extenso, a useful test is: is it likely that the material, if provided earlier, would have been the subject of cross-examination which would or might materially have affected the jury’s view of Lally’s credibility?

[125]He was cross-examined over days by seven leading counsel. When in his January 2001 Note to the Registrar Mr Cosgrove posed the rhetorical question “ what was left to be attacked?” and described Lally as “as destroyed as he was ever likely to be”, he was ignorant of the text and of the prison file, and thus of Lally’s eight days in police custody at Oldham, of his progress towards recategorisation, and of the payment of the £2,500 reward. Would knowledge have prompted him to revisit with Hamlett his original instructions to pursue Lally’s status as informer? If he did, would the same decision have been reached?

[126]The disclosed documents are potentially relevant in three ways. First, as to information about Hamlett’s alleged offending in the 1980’s, second as to Lally’s dealings with the police in the late 1980’s, going to whether he were a participating informant, and third as to his credit.

[127]Mr Cosgrove made a tactical decision to eschew cross-examination of Hamlett’s 1980’s alleged offending. It could have gone only to Lally’s credit, and succeeded only if Lally were shown to have lied in information he had given about Hamlett. Mr Cosgrove was aware of Lally’s informing in respect of the lollipop acquittal well before the PII hearing of 30th March. The witness statement of Gardner and the interviews of Lally made the point clear. We remind ourselves, too, that the one person guaranteed to know what there was to be known about the lollipop trial was Hamlett, who had all the trial papers at his home. As Mr Cosgrove said in his Note, as a balancing exercise it was not a close decision. It is not hard to understand the risk that the jury might, to the detriment of Hamlett, fail to distinguish acquittal from innocence, concluding that notwithstanding the verdict Lally had given accurate information. This was Hamlett’s view as well as that of Mr Cosgrove. It was a classic double-edged sword, the type of decision with which counsel with their professional and lay clients are regularly confronted, and not one open to criticism. Mr Cosgrove had instructions not to deal with the acquittal of his lay client on the lollipop robbery and we can see why this was thought the less forensically risky of two possibilities. We cannot see that leading counsel had one hand tied behind his back when making it. The question is whether we have been referred to any specific matter, which would significantly have altered the position, and we have not.

[128]There is no support, it seems to us, for the assertion that in addition to his known informing between 1987 and 1991, Lally was also informing during the later years of his prison sentence. From November 1996, when he was released from his 10-year sentence, until October 1998 when he was arrested for the Cadishead offence, there is nothing save conjecture to the contrary. It appears that the last contact between him and the police was in 1991. He was cross-examined about contact between 1996 and 1998 when it was suggested that unidentified police officers gave him carte blanche to commit robberies in exchange for his “putting bodies in the frame” and it was refuted. Were that suggestion founded in truth, then it follows that police officers countenanced the commission of twenty violent offences, in which approximately a quarter of a million pounds was taken, members of the public terrified, security staff sprayed with noxious substances, and individuals beaten, all before police secured any advantage in terms of information. It is untenable as a proposition, unsupported by evidence, and we reject it. Even were it to attract credence, how would it have advantaged the appellants? Their defence to a man was that none was a participant.

[129]The effect of the draft text coupled with the prison file information as to 1990 Home Leave was put forward as indicating an improper relationship between Lally and the police, since DCI Gardner must have lied both to the prison authorities and to the jury about “compassionate leave”.

[130]Mr Wood submits that the willingness of officers to turn a blind eye to Lally’s offending so as to achieve the conviction of Hamlett was a price they were willing to pay. This was a point canvassed before the jury, indeed in one of his intelligence interviews Lally said “they’ve wanted Hamlett for years”.

[131]Lally had said in the Burton Copeland statement that he had helped police officers recover firearms and though Mr Wood suggests that this must be a lie there is no evidence to support that contention. As Mr Marks remarked, Lally may have done just that.

[132]As to Nicholas Freeman, a partner in Burton Copeland whom according to Lally, Hamlett said he regularly bribed, the position is clear. The Crown could not have called evidence about it, Freeman could not have given admissible evidence about it, and by whatever means had such evidence been introduced the only person to whose discredit it could have gone was not Lally but Hamlett himself. At its highest it was a point of marginal importance. Refusal to discharge the jury on 27 March 2000.

[133]On Monday the 27th March 2000 a juror complained that he had received anonymous telephone calls. The judge separated that juror from the others and investigated the matter with the juror in open court. The juror told the judge he had received four calls on the 15th 16th and 21st March. The calls had been disconnected as soon as the juror picked up the handset. The last call had been on Saturday the 25th March at 3 am. When the juror picked up the phone, the caller had paused before discontinuing the call. The juror told the judge that, whilst he was concerned, he did not attribute the calls to anyone or anything connected to the case. He said he felt well able to continue as a juror.

[134]In the absence of the juror, Counsel made various submissions as a result of which the juror was recalled. He said that he had told his fellow jurors of the first call. He re-iterated that he felt well able to continue to act as a juror and that he was unaffected by the incident. He agreed that if the topic arose in conversation with his fellow jurors, he would tell them that the calls were unrelated to this case.

[135]Counsel then took instructions from their clients and subsequently asked the judge to make enquiry of the whole jury as to whether this information had inhibited or was likely to inhibit any of them in their proper performance of their duties as jurors.

[136]The whole of the jury was brought into Court. The judge told them of the phone calls. He emphasised that the calls had nothing to do with anyone in the case. He asked if any other member of the jury had received such calls and whether any of them felt in any way inhibited. He invited them to retire briefly to consider their position. The jurors retired, returned and indicated that they could properly continue.

[137]At that point Mr Horgan, leading counsel for Mr Hulme, applied to discharge the whole jury. The application was opposed not only by the Crown but also by each of the other Defendants. The judge, whilst recognising that there was some prejudice, refused the application. He said he would give the jury the appropriate direction when he came to sum up. In the event the judge did not mention the matter again and neither did anyone else.

[138]It is submitted by Mr Wood and Mr Martin Sperry that the judge should have discharged the whole jury on the 27th March, given that he himself recognised that there was some prejudice to the Defendants. His failure to discharge the jury was compounded by his failure to deal with the matter in his summing-up. Consequently the convictions were unsafe.

[139]That submission we reject. Whatever view the judge may have held, in the judgment of this Court it is wholly unlikely that any prejudice was occasioned to any defendant. From start to finish everyone accepted that the calls had nothing to do with the trial or anyone connected with it.

[140]Further, the decision whether or not to discharge the jury was a matter for the judge’s discretion. It is quite impossible to say that his decision was unreasonable. It was supported by all the parties save one. Lastly, whilst it is true that the judge did not give the jury any further direction when he summed up, such a direction would have only repeated what he had already told the jury and would have had the effect of bringing to the jury’s attention something of no importance which it had in all likelihood forgotten. We state that with some confidence as it is plain that the judge himself had forgotten. No counsel brought this omission to the attention of the judge from which we think it safe to infer that counsel had forgotten the matter also. Nothing in this point begins to persuade us that the convictions are unsafe. Refusal to discharge the jury at close of defence case.

[141]After the last of the defence evidence had been called, Mr Horgan made a further submission to the judge that the jury be discharged. He argued that the late disclosure of information regarding Lally’s activities had denied Hulme the best opportunity to attack Lally’s credibility. The judge rejected that submission. Mr Martin Sperry submits that he was wrong to do so. The decision was an exercise of the judge’s discretion and so must be examined in context.

[142]This was a late stage of a trial, which had begun on the 6th March. The application had not been made earlier because Hulme refrained from instructing Mr Horgan so to make it even though the material upon which the application was based had been available . The Prosecution had offered to recall Lally and any other relevant witness. This offer had been refused, no doubt for good tactical reasons. The application was supported by two other defendants but opposed by the Crown and by the other four defendants. Given that context and given the actual value of the material, which was not available when Lally was cross-examined, the submission that the exercise of the judge’s discretion was unreasonable is in our view untenable. Misdirection: Section 34 Criminal Justice and Public Order Act 1994.

[143]None of the Defendants answered any question in interview. The question arose as to what inference, if any, could be drawn by the jury adverse to any particular Defendant under Section 34 of the Criminal Justice and Public Order Act 1994.

[144]The judge ruled that no adverse inference could be drawn against any Defendant from his failure to mention ‘bad blood’ between him and Lally as a motive for Lally falsely to implicate him. As that was the only possible adverse inference that could be drawn against Hamlett, it followed that the judge had to direct the jury in clear terms that as a matter of law, it must not draw any inference adverse to Hamlett from his silence in interview. See McGarry [1999] 1. Crim. App. R.377.

[145]McCartney neither called nor gave evidence so that Section 34 did not apply. The judge gave a Section 35 direction of which no complaint is made.

[146]In respect of Beddow the judge ruled that an adverse inference could be drawn from his failure to mention that he had not met Lally at the date of the earlier offences committed in pursuance of the conspiracy. Mr Shorrock had submitted, unsuccessfully, that no adverse inference could be drawn against his client. He has repeated that submission before this court in these terms, “The issue was not whether he had met him (Lally) but whether he had participated.”

[147]We reject that submission. An issue between the Prosecution and Beddow was whether Beddow had taken part in the earlier robberies. Given that Lally was the principal in the conspiracy, the reality was that Beddow could hardly have participated without knowing Lally. If Beddow’s account were accurate it cast considerable doubt upon Lally’s credibility which was central to the trial. In the judgment of this court the assertion that he had not even met Lally when the earlier robberies were committed was directly relevant, it was not mentioned in interview, and was something which a jury might take the view could and should have been.

[148]Hulme’s defence included an assertion of duress as to his involvement in the twentieth and last incident, the attempted robbery at Cadishead. As Hulme was caught ‘red-handed’ this was probably the only explanation available to him. The judge ruled that an adverse inference could arise in that instance. Mr Martin-Sperry does not seek to criticise either ruling or direction, no doubt because he recognises not only that the ruling was right but also that the direction, which was not accurate, was more favourable to his client than it should have been.

[149]Mr Wood supported by Mr Shorrock argues that the jury and their lay clients were entitled to complete and clear directions as to the proper approach to this aspect of the evidence. They submit that the directions given were inaccurate and incomplete as to the law and so unclear as to leave the jury in a state of confusion. It is submitted that consequently not only are the verdicts unsafe but given that the operation of Section 34 is an encroachment on the right to silence, the effect of the misdirections was to deprive their lay clients of a fair trial contrary to

Article 6(1) of the European Convention on Human Rights

[150]We have been referred to chapter 15-321of Archbold 2003 and the authorities there cited. We venture to suggest that they are well known, as are the ingredients that such a direction must include. The jury must be told: 1. that the burden of proof remains upon the Prosecution. 2. that the Defendant was entitled to exercise his right to remain silent but that if he chose to exercise that right it might have a particular consequence, namely that the jury could, if certain conditions were met, draw an inference from his failure adverse to the Defendant. 3. those conditions were that they must be satisfied: a) that the Defendant was seeking to rely upon a fact or facts which he had not mentioned in interview and which the jury considered that he could reasonably have been expected to have mentioned. b) that there was already available credible evidence of the Defendant’s guilt. [A prima facie case]. c) that the jury thought it fair to draw an inference against the particular Defendant, taking into account: i) the particular circumstances and personal attributes of the Defendant. ii) any explanation that he put forward. iii) where appropriate, that he was acting upon legal advice. Counsel have drawn our attention to the specimen direction set out by Kay LJ in Betts and Hall [2001]2 Crim.App.R.16 4. that the reason for his silence was that he had no answer to give or none that would stand up to close examination. The judge began his direction on this topic at p.18 A. He directed the jury as to the burden and standard of proof and then said:

“He (a Defendant) has to prove nothing in the case, least of all his innocence, and I shall come back to that when we consider the question of what these Defendants said or rather did not say when they were interviewed by the Police and, indeed, the whole question of there being evidence [them giving evidence] in the case, because as you know two of them elected not to. I shall deal with that when I come to review the case against each Defendant, but bear at the forefront of your mind this cardinal principle, the Prosecution must prove guilt.”

He then gave the standard direction as to the drawing of inferences generally. He reviewed the evidence called by the Prosecution and then said,[Vol3 p.13] “Now, I am going to turn to each of the Defendants but before I do that can I mention a general matter? You know that in this case each of the Defendants was interviewed by the Police and for one reason or another elected not to answer questions and made what have been called ‘no comment interviews’. You also know that before these interview commenced each Defendant was told that he was not obliged to answer any question, but that if he failed to mention something which he later relied upon in his defence, the jury would be entitled to draw inferences against him…entitled, yes, members of the jury…something you may take into account. Now, here I am going to deal with that individually in relation to each Defendant, because sometimes if a Defendant elects not answer a question, there may be no good reason at all why he did not answer a question and indeed he may come out at trial with a defence which if it is a truthful one could have been mentioned before, and that may be something which you take into account when assessing whether or not the Prosecution have proved the case against that particular Defendant. What is for certain is that the mere failure to answer questions cannot of itself be an indication of guilt. That would be completely reversing or getting rid of the burden of proof that I told you about at the outset. It is simply a factor when you come to consider the weight you attach to that Defendant’s evidence, but as I say. I will deal with each of them in turn.” It is apparent that the criticisms made of these directions have some foundation: i) the judge did not direct the jury that before drawing any inference adverse to the Defendant it must be satisfied: a) that the Defendant could reasonably have been expected to mention that which was omitted, b) that it was fair to do so bearing in mind the considerations set out a paragraph iii c, 1,2 & 3 above. ii) He did not give a Betts and Hall direction at all; iii) it is inaccurate in that: a) he states that the failure cannot of itself be an indication of guilt. The inference cannot of itself prove guilt. It can indicate guilt. b) he describes it as a factor to be taken into account when they consider the weight to be attached to the Defendant’s evidence. In fact, the jury must consider the credibility of the Defendant before it draws any inference. [see paragraph (3) above]. It is only after it has rejected any explanation advanced by the Defendant that it can draw an adverse inference. If it chooses to do so, it is factor which may give support to the Prosecution’s case, over and above an adverse finding as to the credibility of the Defendant.

[151]The judge then dealt with each Defendant beginning with Hamlett. He told the jury that the Defence case was that the history of the bad relationship between Hamlett and his brother Lally provided a motive for Lally falsely to implicate Hamlett. He said, [vol 3 p.15]:

“Of course he does not have to offer an explanation and he does not have to prove anything, as I have said, but those matters which he puts before you for you to consider as to why Mr Lally should make a false allegation against him.”

He reviewed the evidence and came to cross-examination. “He was asked why he had not told the Police in interview about the bad relationship which existed between him and Raymond [Lally] and his answer was “well, I took my Solicitor’s advice”, and because at that time he did not know everything that Mr Lally was saying. Members of the jury, you will not draw any adverse inference against him for that (reason ?). The fact that a person says that he is not answering questions because his solicitor advised him not to, does not mean to say that in a appropriate case, you, the jury, cannot draw an inference. It would make a mockery of the rule that such an inference could be drawn because every solicitor would advise every Defendant not to answer question. You have to take into account the sort of person it is who has been given that advice, whether you think he is the sort of person who is able to and would be prepared to override a solicitor’s advice if he thought it was foolish advice, when he had a clear defence to the charge. If he had been asked and indeed he said in re-examination that to his recollection the Police never asked him why Mr Lally should have said those things about him but in any event even if they had it would have been simply speculation on his part and that is not what the…about answering questions and inferences that can be drawn from a failure to do so are all about, so it would be quite wrong in his case to hold against him when considering whether the Prosecution have proved their case that he did not tell the Police what he has told you in evidence about his relationship with Mr Lally.”

[152]Given that all that was required of the judge at this point was to direct the jury that in Hamlett’s case it must not draw any inference against him, it has to be accepted that this direction was capable of causing some confusion, describing as it does circumstances in which a jury might draw an adverse inference. However, what is clear is the actual direction to the jury and the reason for it, “Members of the jury, you will not draw any adverse inference against him for that reason” and “…the Police never asked him why Mr Lally should say these things about him but in any event even if they had it would have been simply speculation on his part and that is not what the…about answering questions and inferences that can be drawn from a failure to so are all about, so it would be quite wrong in his case to hold against him when considering whether the prosecution have proved their case that he did not tell the police what he has told you…”

[153]The judge next dealt with Hulme. Mr Wood relies on this passage also. He argues that if there were confusion previously, here it was compounded. The judge reminded the jury of Hulme’s evidence of the events leading up the ‘Cadishead’ robbery upon which the defence of duress was based. He told the jury [Vol 3 p. 31]:

“He in cross-examination said that he did not tell anyone about this threat. He said “I was not brought up like that. I try and sort things out myself.”

[154]The judge then directed the jury upon the elements of duress and dealt with the ‘no comment’ interviews, which followed Hulme’s arrest. He told the jury that in the first interview Hulme’s solicitor had stated that he had advised his client to say nothing as he regarded the pre-interview disclosure as inadequate and consequently was not in a position properly to advise his client. He reminded it that in the third interview Hulme had said that he had not committed any robberies, he could not remember being in any car, and he had nothing to say.

[155]He reminded the jury that Hulme was under caution just as Hamlett had been. He went on:

“Well, certainly he cannot be criticised or have it held against him that he did not tell the Police about his relationship with Mr Lally for the reasons I have already explained, but he has put forward this defence of duress and also he was asked by the Prosecution in the first interview after he was arrested what he was doing at Cadishead and he elected not to tell them. It is a matter for you whether you think that it was reasonable for him to act on his solicitor’s advice in those circumstances. I have already dealt with how you should approach this question. Is this something, this defence of duress and the fact that he has been forced to Cadishead which he could have told the Police and of course if it was true it would…completely exonerate him…part…that is something he could have told the Police at the outset and if he did not, why did he not? The Prosecution invite you to say that the reason he did not is because he had not thought it up as a defence at that time…and that he has only thought about it in the interval. Well, members of the jury, that is a matter for you to decide. If you think it helps you in assessing Mr Hulme’s credibility, then you may take it into account against him but as I said with Mr Hamlett, it does not involve coming to a conclusion that because he chose not to answer questions, therefore he must be guilty and his defence must be dishonest. It does not necessarily follow. It is a factor you can take into account. Well, you will obviously take into account in this case the submissions that were made by Mr Horgan in this context.”

It is evident that: i). the direction is incorrect in stating that the adverse inference goes only to credit. If the jury rejected Hulme’s account of duress, it was entitled to find, in absence of any other reasonable explanation for his presence at Cadishead, that he was guilty of at least that robbery. ii). The reference to Hamlett, is potentially confusing and possibly to the detriment of Hamlett. Here, the jury was being told that whether or not it drew an adverse inference was a matter of fact for it to decide. In Hamlett’s case the jury had had that issue withdrawn from it. iii). it does not make clear the approach the jury should adopt when considering whether a) Hulme could reasonably have been expected to tell the Police about duress and b) it was fair in all the circumstances, to draw an adverse inference. The judge did not give the jury appropriate guidance as to the approach which it should adopt where a solicitor advised his client to say nothing.

[156]Mr Wood’s criticism has to be seen in the light of the judge’s stated approach. He had indicated that he was going to deal with each Defendant separately. Here he was dealing specifically with Hulme. The jury already had the direction in relation to Hamlett and we see no reason to suppose that it would confuse the two, given the very obvious compartmentalisation.

[157]In respect of Vincent, who was acquitted, the judge gave no direction specific to his case at all. Lee Taylor did not give evidence and was acquitted.

[158]He turned to deal with Beddow, who had given evidence. He said he could think of no reason why Lally should implicate him, and that it was on the advice of his solicitor that he made no comment to the questions he was asked in interview. The judge reminded the jury of his account and then dealt with the Section 34 point. [Vol. 3 p. 53. A.]:

“Well no, members of the jury, the only thing that you might have thought possibly that Mr Beddow could have told the Police in interview because again he made a no comment interview, the only thing he could have told you was about when he first met Mr Lally because he said that he had not met Mr Lally until some considerable time after his alleged involvement in these offences. Well, that is something which you can ask yourselves whether he could have said that a the time he was interviewed. I would suggest to you that you should attach very little weight if any weight to that at all. Certainly so far as his assertions about what Mr Lally had been doing and how he had been behaving again, as with others, that only goes to the question as to what might be a motive for |Mr Lally to make up…defence that he could put forward before you in the witness box, so I would advise you to concentrate on whether Mr Lally is telling the truth and whether there is any support for what Mr Lally has said in the telephone calls that are set out in the schedule which relates to the offence with which his is involved, and in that context you will bear in mind the submissions made to you by Mr Shorrock that they do not show a full picture,….”

[159]Here was a Defendant against whom an adverse inference was available as a matter of law but about whom the judge advised the jury, as a matter of comment, rather than direction, not to draw one. We accept that there is no direction on adverse inference tailored to Beddow’s case at all. But when considering whether that omission renders the conviction of Beddow unsafe, we cannot ignore the fact that the judge advised the jury in strong terms not to draw any inference against Beddow. Had the judge given the full direction it would only have served to draw to the jury’s attention the possibility of an adverse inference.

[160]McCartney did not give evidence. The judge adopted the Section 35 direction he had given in respect of Lee Taylor. No complaint is made as to that.

[161]The judge had to deal with three different situations arising from the operation of Section 34 Criminal Justice and Public Order Act 1994. In respect of Hamlett that as a matter of law no adverse inference was available. In respect of Hulme that as a matter of law an adverse inference was available. It was a matter for the judgment of the jury whether it chose to draw it. In respect of Beddow although as a matter of law the jury might draw an adverse inference, it was the judge’s comment upon the evidence that it should not do so. In these circumstances it was necessary for the judge to give clear and complete directions both generally and in respect of each Defendant. Whilst it is clear that he did not do so, in our judgment the directions that he did give were at the least adequate in respect of Hamlett and Beddow and taken in context not so deficient as to render their convictions unsafe nor their trial unfair. Inconsistent verdicts.

[162]It is submitted on behalf of Hamlett, Beddow and McCartney that their convictions are inconsistent with the acquittals of Taylor, Vincent and Wallace. Although Hulme was given leave to argue this point, in fact Mr Martin Sperry did not seek leave to appeal on this ground and for that good reason does not pursue it now. Each ground of appeal is based upon the proposition that it is a necessary inference from the verdicts of not guilty that the jury rejected the evidence of Lally in so far as he implicated those defendants. McCartney’s grounds of appeal state,” Having rejected Lally’s evidence in the case of 3 of the 7 defendants, there is no logical and safe reason why the jury should have accepted that evidence in the case of McCartney”. Beddow’s grounds are in similar terms. On behalf of Hamlett, Mr Wood advances this proposition, “By their verdicts the jury rejected the evidence of Lally in relation to Wallace, Vincent and Taylor who were acquitted”.

[163]In the view of this Court that basic proposition is misconceived. It was accepted by all the parties and by the judge that the prosecution case stood or fell on Lally’s evidence. This is illustrated by what the judge said in summing up and it was clear that he was echoing comments made by Counsel. Divider 1 p.14e:

“The core of this case, as has been emphasised right from the outset, is whether or not you can accept Mr Lally’s evidence as being truthful, because the prosecution case is founded upon his evidence”

Divider 2 p.2 at A:

“Raymond Francis Lally. You will not, I imagine, ever have come across anyone like him before. Not a good word has been said about him in this case and there is nothing, you may think, that has emerged to his credit. His motive for helping the police would appear to be self-serving rather than public-spirited. That is his desire to get the lowest length of sentence for his misdeeds, and yet it is principally on that evidence that the prosecution asks you to rely in support of its case against each of these defendants. How then should you approach an assessment of his evidence? Well, you saw and heard him for a week in the witness box under close questioning, and you will therefore have been able to take your time in reaching your own assessment of him. It may be that you have already discussed it amongst yourselves, if you believe what he has told you then you may act upon it, but I give you this warning. Mr Lally is an accomplice who may have his own agenda, over and above the desire to get a reduction in his sentence. You may remember something Mr Price said yesterday, what do you know of the mind of a hardened criminal? Now that is not to say that someone who is an accomplice and gives evidence against his fellow offenders is incapable of telling the truth, but you do have to bear in mind the possible agenda which may be a hidden agenda. In the circumstances of this case that is a very good reason why it is sensible that you should look to see if there is any evidence in the case independent of Mr Lally which tends to support the truth of what he has said. The prosecution point principally but not solely to the telephone evidence as providing such support. It is certainly capable of doing so, but whether or not it does so in relation to the guilt of a defendant is a matter for you. So my direction to you is that you should think long and hard before accepting what he says without such support. You might agree with the submissions of defence Counsel that it would not be safe to do otherwise. However, in the end it is your assessment that counts, and if you feel notwithstanding what I have said that you can rely on it, then of course you will do so.”

[164]The jury convicted four of the seven defendants. It convicted first Hamlett on count one and Hulme on counts one and two. Next it acquitted Taylor and convicted McCartney. Then it acquitted Wallace, and then Taylor before finally convicting Beddow. Given the approach of everyone to Lally’s evidence the first question that the jury must have asked itself was “ Do we find the evidence of Lally to be generally credible ? “ It is a necessary inference to be drawn from the verdicts that, in general terms, the jury found that it was. Had it not done so, it must have acquitted all the defendants.

[165]The assertion that the three acquittals show that the jury rejected Lally’s evidence in respect of those defendants is simply wrong. The only firm conclusion that can be drawn from the acquittals is that the jury was not sure of guilt. We find support for that proposition in the judgment of this Court in the case of Bell No. 9700085Z4reported in issue 6 Archbold News 1997. In that case the Court upheld a conviction in respect of an Appellant who had been convicted of three offences on a six-count indictment. He was acquitted of the other three. In respect of each of the six counts the Prosecution relied upon the uncorroborated evidence of the 16-year-old complainant. M, the wife of the Appellant gave evidence on his behalf in respect of the three counts on which the jury acquitted. LJ Rose, giving the judgment of the Court said:

“As it seems to this Court, there is an obvious explanation as to why the jury reached different verdicts on different counts. It is, as it seems to us, of significance that the three counts on which the Appellant was acquitted by the jury – Counts 1,2 and 6 – were the counts, and the only counts, in relation to which M gave evidence. It follows, in our judgment, that it was open to the jury to conclude that, although they were sure that guilt was established in relation to Counts 3,4 and 5, about which M did not give evidence, they were not sure, in the light of the evidence which they had heard from her, that guilt was proved in relation to those counts. It is perhaps not without significance that, as appears a page 6D of the transcript of the summing-up, the defence, perfectly properly, relied upon the evidence of M as casting doubt on the evidence of the girl in relation to those matters about which she have evidence. There is, in any event, as it seems to us, a difficulty with Mr Higginson’s submission in relation to whether there is any inconsistency at all. All it seems to us, there is no logical inconsistency in the verdicts returned by the jury, and unless there is a logical inconsistency, the question of whether or not the jury’s verdicts can sensibly be explained does not generally arise. There have recently been a number of appeals to the Court based on allegedly inconsistent verdicts, and it is perhaps therefore worth emphasising that it is axiomatic that, generally speaking, logical inconsistency is an essential prerequisite for success on this ground: See Durante (1972) 56 Cr.App.R. 708, at page 714,and Warner unreported, Court of Appeal, Criminal Division, transcript dated 17th February 1997. There are, of course, exceptional cases of which Cilgram (1994) Crim.L.R. 861 provides an example, where a verdict may be quashed because, although there is no logical inconsistency, the particular facts and circumstances of the case render the verdict unsafe. However, it is noted that in Cilgram this Court, differently constituted, expressly rejected the submission that, where a complainant’s credibility is in issue and the evidence is uncorroborated, ,guilty verdicts must be regarded as unsafe because the jury also returned not guilty verdicts in relation to some of the complainant’s allegations. As was pointed out by Evans LJ, giving the judgment of the Court in Warner, see transcript page 15F, such a conclusion would be contrary to the proposition that juries should generally be directed to give separate consideration to each count.”

[166]The basic approach is to be found in R v. Durrante vol. 56 Cr.App.R. p.708 at p.714. Edmund Davies LJ adopted and approved a passage from the judgment of Lord Parker, Chief Justice in Hunt (1968) 52 Cr. App. R. which in turn was based upon an unreported judgment of Devlin J. “When an appellant seeks to persuade this Court as his ground of appeal that the jury has returned a repugnant or inconsistent verdict, the burden is plainly on him. He must satisfy the Court that the two verdict cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion and once one assumes that they were an unreasonable jury, or that they could not have reasonably come to the conclusion, then the convictions cannot stand…” The Judgment continued, “…the burden is on the Appellant to show that verdicts upon different counts are not merely inconsistent but are so inconsistent as to demand interference by an appellate court.”

[167]That the jury found Lally’s evidence generally credible does not mean that it was bound to convict all the Defendants who were implicated by his evidence. This proposition is confirmed by the direction given to the jury starting at p. 23 G:

“You have repeatedly and rightly been told that you have to consider the case against each defendant separately. They are all charged with the same offence or the same offences, because as you know it is split into three periods, but they are each entitled to separate consideration, and I just repeat what Counsel have told you in their case. You must look at the evidence in relation to each case separately, and in due course you will be asked to bring in a separate verdict in relation to each defendant. One of the question that has been posed to you by the Crown in this case is first of all why should Mr Lally identify people as being involved in the conspiracy who were in fact not, when if that is right he knows perfectly well who was involved with him. Why should he identify correctly one, two or three members of the conspiracy but miss-identify others? Well, those are questions that you will have to ask yourselves. It is suggested on behalf of the Crown, for example, that if you are satisfied that Mr Hulme or Mr Kelso were guilty of conspiracy because they were caught, as it were, red handed at Cadishead, therefore he has been truthful about them, he is likely to be truthful about the others. Well, for the reason that I have explained a short while ago, that does not necessarily follow. The other side of that coin of course is this: that you have been invited in different ways by different Counsel to reject the evidence of Mr Lally against their particular client for a variety of reasons which we will look at in due course. If you were to come to the conclusion that Mr Lally had been lying to you about a particular defendant, then you would be in a position, would you not, of being seriously worried as to whether he had told you the truth about any of the Defendants I suppose it is, to use an analogy, one which I do not think has been used by any Counsel…things, I suppose all of you have made card houses in your time, and if you take some of the cards from the bottom…or half-way up, it is likely that the rest of the house would fall down. You will have to think whether that applies, so that if you are satisfied that you cannot believe Mr Lally in relation to one defendant, then what weight can you attach in relation to the others? You may not get into that frame of mind. You may simply say “Well, we in considering the evidence against a particular defendant, we cannot be sure about it. Mr Lally might have been telling us the truth about…but we cannot be absolutely sure. We think he may have a motive in relation to a particular defendant for bringing him in.”

If you cannot be sure, he is not guilty, and it may not necessarily mean that you do not accept that he is telling the truth about others, but that is a matter for you.”

[168]That direction is plainly correct as a matter of logic, common sense and law. Mr Price, leading counsel for McCartney has relied upon the unreported case of R v. Lester and Harvey heard on the 13th December 1982 before Lord Lane, Chief Justice, Talbot J. who gave the judgment of the Court and Staughton J. (as he then was). In that case, as in this, the Prosecution relied entirely upon the evidence of an accomplice, Solomon. Lester and Harvey were convicted. A third man was acquitted. In the judgment the Court referred to how the trial

judge left the case to the jury and quoted from the summing up:

“Members of the jury, in considering the evidence and in coming to your decision, as a matter of common sense and justice you will no doubt see why you have to deal with each of these defendants separately. Your duty is to consider the case of each defendant separately. The evidence is not the same in the case of all of them and they are entitled to separate consideration by you. It may be, and I will have a lot to say about Solomon, that if you are not satisfied about Solomon in the case of one of these defendants that you will think it not right to be satisfied about him in respect of any one of the others. It may be unreal to think that you could believe him in respect of one defendant and not in respect of the others, but that is something that you and you alone can decide, having heard the evidence and applying my direction in law to it.”

The Court concluded:

“We take the view that the learned judge had formed in his own mind the proposition that it really was the case you either convict all on Solomon’s evidence or you convict none. The judge having formed that view the submissions which learned counsel have made on behalf of the Appellants, and to which we have referred, are of the highest importance. It seems to us, when you come to consider Solomon, that you cannot as it were compartmentalise his evidence. The jury were saying “We cannot believe him for sure whether he is telling the truth about Willis”, and in saying that it must necessarily follow that they could not, in our view, accept for certainty that he was telling the truth in the case of the others. The fact that all the evidence about Willis’s alibi caused them to pause and have doubt about Willis and therefore acquit him, cannot make Solomon’s evidence in other respects acceptable so that they could convict the two appellants. In those circumstances we have reached the view that these verdicts are not safe and are not satisfactory. And the convictions must be quashed.”

[169]It seems likely that the reason that the case remains unreported is that it turned upon its own particular facts.

[170]In R v. Van der Molen 1997 C.L.R. p. 604it was held:

“It did not follow that because the jury must have disbelieved a witness or rejected his or her evidence with the result that it acquitted on one count, it was necessarily acting irrationally to rely on the evidence of the same witness to convict an another count. The Court had to be very careful not to usurp the role of the jury who had heard the witnesses and considered the matter long and hard.”

Counsel have advanced careful and detailed analysis of the evidence which Lally gave in respect of their respective lay clients, and of such other evidence or lack of evidence which supported Lally’s account. We have heard submissions as to those parts of Lally’s evidence which were controverted by the testimony of other witnesses who everyone accepted were honest albeit not everyone accepted were necessarily accurate. Comparisons have been drawn between that evidence and the evidence for or against those defendants who were acquitted in an attempt to persuade this court that the verdicts are inconsistent. We have carefully considered those submissions. For reasons which will become apparent we do not rehearse them here, although we comment that all these matters were before the jury.

[171]What is an inconsistent verdict? It is a verdict of guilty which, when set against facts which are agreed or which the jury must have found proved as a matter of necessary inference in order to reach a verdict or verdicts of not guilty on other counts in the indictment, is logically inconsistent with those verdicts of not guilty.

[172]Where the facts underlying the verdicts of acquittal are not agreed or do not arise as a matter of necessary inference and there is, on consideration of the whole of the evidence a realistic basis on which the jury could have found facts which justify its verdicts both of guilty and not guilty, then the question of inconsistency simply does not arise.

[173]A difference in verdicts between Defendants may be justified in a number of ways. A Defendant who gives evidence may be disbelieved. Clearly Hamlett, Hulme and Beddow were disbelieved. An adverse inference arising under Section 34 or 35 of the Criminal Justice and Public Order Act 1994 could persuade a jury to draw a distinction between defendants. The Crown has submitted that in the case of each Defendant who was acquitted there was material evidence which if accept by the jury or at least not positively rejected by it, would explain why the jury was left in doubt as to that Defendant’s guilt. Wallace.

[174]Wallace was said by Lally to have been involved in only two robberies, numbers 2 and 3.

[175]The only telephone evidence against him was one call made the night before offence no.2.

[176]In respect of offence no.2, Lally said that after the robbery the Securicor bag which had contained cheques and cash had been taken back to Hulme’s house and that Wallace had then undertaken its disposal. In fact the bag was discovered close to the scene of the robbery having been discarded there immediately after the robbery.

[177]Lally told the jury that Wallace had bought a van which was to be used in robbery no.10. The seller of the van did not pick Wallace out on an identification parade. The £300 in cash used to purchase the van was examined for fingerprints. None of Wallace’s was found. Taylor.

[178]Lally said that Taylor was involved in robbery no.8 only. i) Taylor had said nothing in interview and did not rely on an alibi. He did not give evidence. The judge advised the jury not to draw any adverse inference against him under Section 35. ii) Taylor was 6’5” in height. None of what the judge ( and apparently Counsel ) referred to as honest witnesses described any of the robbers as being as tall as that. Taylor was significantly taller than all the other defendants. Vincent.

[179]Vincent was alleged to have taken part only in robbery no.19. i) Vincent had an explanation for the telephone evidence, which was, on the face of it, credible, namely that it was Lally, who was in fact his brother, who had made these calls, which might appear to incriminate him. ii) His defence was alibi. He called in support of that alibi a respectable witness of previous good character. iii) Vincent demanded a confrontation. He stood on a parade and two eye- witnesses to the robbery failed to pick him out. Indeed one picked out a volunteer.

[180]That evidence supplies a rational basis for the jury to have concluded that, whilst it was sure of the guilt of the other defendants, in respect of Wallace, Taylor and Vincent, whatever suspicions it may have had it could not be sure of their guilt. It follows that there is no inconsistency in these verdicts. Identification.

[181]This was not an identification case as that term is usually applied. The prosecution case rested upon Lally. Lally knew each of the Defendants. There was no question of him being mistaken as to identity. Either he was telling the truth or he was lying. However, there were witnesses upon whose evidence the prosecution relied who gave descriptions of the robbers and some, albeit not many, who said that they thought that they would be able to recognise one or two of them again. If there were a point to be made on this evidence it was that some of the descriptions did not match the defendant to whom Lally had ascribed the role played by the robber whom the witness was purporting to describe. It was Mr Shorrock on behalf of Beddow who led on this aspect of the case and who argues a separate ground of appeal on this aspect to which we shall come later.

[182]Wallace and Vincent had stood on identification parades. In Wallace ‘s case the witness was the man who had sold the van used in robbery no.10. In Vincent’s case the witnesses were eye-witnesses to the robbery. Neither had been picked out. None of these Appellants had stood on an identification parade. Hamlett had been asked if he were prepared to do so. His solicitor answered that before he would allow a parade he would need to see individual statements and descriptions and that he did not think it was appropriate at that stage. The matter was not revisited by either side.

[183]Mr Wood submits that the failure to hold an identification parade was a breach of Code D. of the Codes of Practice issued under the Police and Criminal Evidence Act 1984 . He submits that the judge ought in those circumstances have directed the jury that his client had been deprived of the possible benefit of an identification parade. He relies upon the case of Forbes [2001]2 WLR.1 where Lord Bingham said, “But if the breach is a failure to hold an identification parade when required by D.2.3 the jury should ordinarily be told that an identification parade enables a suspect to put the reliability of an eye-witness identification to the test, that the suspect has lost the benefit of that safeguard and that the jury should take account of that fact in its assessment of the whole case, giving it such weight as it thinks fair.”

[184]At the time when Hamlett was arrested and interviewed Code D.2.3 read:

“Whenever a suspect disputes an identification, an identification parade should be held if the suspect consents unless paragraph 3. 2.4 or 2.7 or 2.10 apply,”

[185]The first question is whether there were a breach of the Code. That in turn depends upon when an identification becomes disputed. At Chapter 14-33 of the current edition of Archbold the Editors state, “The requirement to hold an identification procedure also applies where a dispute as to identity may reasonable be anticipated: Rutherford and Palmer, 98 Cr.App.R CA.”

[186]In that case the Court stated:

“…bearing in mind this is not a statute and of the need to give the sub-paragraph a sensible and purposive meaning, we have concluded that the right to an identification parade must arise not only where there is ,as rarely occurs, an actual dispute, but also to cases where such a dispute might reasonably be anticipated. Clearly, where a witness has purported to name or otherwise identify a suspect,D.2.3 must apply. But we consider it also applies where a witness has indicated he or she would be able to identify the offender or there is a reasonable chance of him or her doing so.”

[187]The facts of that case illustrate the principle. There were two witnesses who had seen the robbers , had given descriptions of them and who said that they might be able to recognise them again. In interview each suspect denied taking part. One said he was in a betting shop. The other said he was in a pub. Both agreed to stand on a parade. Indeed Rutherford asked for a confrontation. No parade was held. It is difficult to imagine a clearer case where a dispute as to identification might reasonably have been anticipated.

[188]The circumstances here are very different. Hamlett had given a “no comment” interview. “No comment” means exactly that. It is not an admission. Nor is it a denial. Hamlett did not consent to a parade, nor did he ask for one. In our judgment those circumstances do not give rise to the reasonable anticipation that identity was in dispute. It is not enough for the suspect to say as Mr Wood has argued that it must have been obvious that he was denying guilt. A simple denial of guilt may conceal a defence of duress as it did in Hulme’s case. It may involve an admission of presence but a denial of participation. A suspect must make some positive assertion in order to put identification into dispute and so trigger the provisions of the Code. We are unpersuaded that there was any breach of D.2.3.

[189]Even had we been persuaded that there had been a breach of the Code and that a ‘Forbes’ direction should have been given, we think it wholly unlikely that the omission to do so would have rendered this conviction unsafe. Such a direction is not free-standing. If a suspect deliberately delays putting identification in dispute so that the acknowledged difficulties of identification are compounded by the passage of time the judge would be justified in adding appropriate comment to his direction. In this case it was the evidence that frequently the robbers took steps to disguise their appearances. They wore balaclavas or scarves over their faces; sometimes they wore hats and sometimes wigs. The robberies were swiftly executed and deliberately frightening. The robberies in which Hamlet was alleged to have participated occurred between the 14th December 1966 and the 5th September 1997. He was not arrested until the 16th March 1999,which was 27 months after the first robbery and 18 months after the last. In those circumstances the benefit to be derived from an identification parade from anyone’s point of view, but especially the jury’s, was actually very limited. A ‘Forbes’ direction would have had to be tailored to reflect the position.

[190]On behalf of Beddow and McCartney it was submitted that the conviction was unsafe because the independent evidence available from eye-witnesses tended to undermine rather than to support the evidence of Raymond Lally. Mr Shorrock argues that the judge failed to highlight the differences between the observations of these witnesses and the actual appearance of Beddow.

[191]As we have said the real issue in the case was the credibility of Lally. Everyone accepted that. The evidence of the independent witnesses did not prove identification. There had been only three parades, the two we have already mentioned and one that had occurred before Beddow was arrested. The real value of the evidence to the defence was where a witness gave a description of a robber which did not match the individual identified by Lally .It was argued that this went directly to Lally’s credibility and gave substance to the contentions that Lally was falsely ascribing roles to these appellants which were actually played by others and that Lally was minimising his own role by attributing his own actions to others.

[192]We take the view that Mr Shorrock’s criticisms of the judge are unfounded. It is not the judge’s duty to repeat the submissions of counsel. In reality these were matters for the jury to consider. We know that Mr Shorrock had made full and careful submissions to the jury on this aspect of the evidence. Further, the judge told the jury that he was not going to go through all the evidence and that if he left something out which it regarded important, it should rely upon it. He also explained the pattern of his summing-up:

“This is a case where you have heard necessarily from Mr Lally about the whole of the case as he describes it. Each of the 19 robberies in which he was involved altogether, and you heard him cross-examined altogether. What I propose to do is to look at Mr Lally’s evidence in the round in general terms to begin with and remind you of what he said and of the questions that were put to him so that you have a general picture of him first of all. Then what I propose to do is in the way that Counsel have, to go through each of the robberies that are alleged, and I am going to do it the other way around to Counsel. I am going to deal with the evidence that you heard of the eyewitnesses. In nearly every case…of the witnesses were giving their statements to the police if not on the same day, very shortly afterwards, and no-one has suggested that any of those witnesses were doing other than their best to help the police catch the robbers. That is why they have been called the respectable witnesses, and you will when I go through that evidence, I am sure, take into account the difficulties which were outlined to you by Mr Marks in his closing address. It is for you to say whether what the prosecution were doing was calling evidence before you and then asking you to disregard it. It is a matter of common sense, is it not, that people will have a different view of the same incident because they will have people and the observation from different angles for different periods of time, and so someone who is observing something from behind the safety of their armoured vehicle may be better at taking in what is going on before them than someone outside the vehicle confronted by a loaded shot-gun. Obviously the distance away that people are and the circumstances in which they come to make their observations are all relevant. You have to pick your way through that evidence and you have to contrast it with what Mr Lally says, because as you by now know, the defence are saying not simply that Mr Lally is someone who cannot be believed on his oath because of the sort of person that he is, but he cannot be believed on his oath because his account of each of these offences and who was involved in them is contradicted by a good deal of the evidence in relation to each offence, So I shall go through the witnesses at the scene and then look at what Mr Lally says about it, so that…to contrast their evidence with his evidence and see to what extent the two accounts tally, to what extent they differ, and you will have to decide whether the differences are as a result of Mr Lally deliberately lying to you about who was involved or whether he is in the same position as witnesses who have come forward and are likely not to be 100% or anywhere near that in the accuracy of their recollection. Of course it is not suggested that Mr Lally is mistaken about his identification of any of the defendants. He is either lying about it or he is telling you the truth about it, but as to the detail of precisely how the offences were carried out there is, you may think, room if he is telling the truth on his part for making genuine mistakes, so that is something that you will have to go through and that is what I will go through with you in summary form, and I shall not go over too long of those offences when we have already had a detailed analysis of the evidence, as I am sure that the submissions of Counsel in relation to that evidence are fresh in your mind, and then when I have done that I will give you a summary of what each defendant’s case is individually, and when I have done that you can then go to consider your verdict.”

That is exactly what the judge did. The jury cannot have been in any doubt as to the evidence nor as to the issue to which the evidence related. We have considered the detailed submissions made on behalf of Hamlett, Beddow and McCartney in support of the contentions set out at 27(a) and (b) above. This is not an appeal by way of re-hearing. The jury heard the evidence. It heard submissions from counsel. It was properly directed and reminded of the evidence in a way designed to highlight these aspects. The matter was pre-eminently for it.

[193]For the above reasons we are satisfied as to the safety of all the convictions and the appeals must be dismissed. Appeals against Sentence.

[194]In sentencing the appellants the judge was satisfied that firearms were carried on most of the offences, and all knew they were carried and were loaded. He accepted that the intention was not to injure but to cause fear, and great terror had indeed been caused. None of the defendants had the mitigation of having pleaded guilty. Lally was entirely self-seeking, his sole motive was to try and reduce his sentence and minimise his role, but he had an able right-hand man in Hulme. Those two, with others from time to time, were involved in reconnaissance and careful planning. Hulme had been involved, generally as getaway driver, in twenty offences.

[195]From an early stage Hamlett had been a willing and important part of the team. That his involvement ceased after September 1997 was some mitigation, although he dropped out as a result of a row when the others struck too close to home, rather than because he realised the enormity of what he was doing.

[196]Beddow was brought in by two men very much more experienced in dishonesty and villainy than he, but he went into the conspiracy with his eyes open.

[197]McCartney was involved in only two offences, but on one he carried a loaded firearm. Currently serving a sentence of eight years imprisonment for an offence involving a firearm, totality required in the present case a term less than his involvement deserved, to run consecutively to the sentence currently being served.

[198]Born 20 January 1960 Hulme is now 43. Fifteen convictions including dishonesty and drugs offences secured an absolute discharge, fines, Community Service Order, detention centre, borstal training, a suspended sentence of imprisonment and seven immediate sentences of imprisonment, ranging from four months to four years.

[199]The starting point in this case is Turner and others 61. Crim App R.67. Lawton LJ said this, "What then is the appropriate kind of penalty for bank robberies of the kind with which we are concerned in this case? In all the robberies we have had to consider, firearms and ammonia squirters were carried; and in some of the robberies firearms were discharged, usually for the purpose of frightening bank employees but sometimes for the purpose of blowing locks off doors and tills. In one case with which none of the present appellants can be identified, a man received a gunshot wound in his hand. In another case a girl cashier who attempted to ring the alarm bell was kicked in the head. But, in general, violence was not inflicted on any bank employee, although in all cases violence was threatened. ...We have come to the conclusion that the normal sentence for anyone taking part in a bank robbery or in the hold-up of a security or a Post Office van should be 15 years if firearms were carried and no serious injury done. It follows therefore that the starting point for considering all these cases is a sentence of 15 years…. In this case a number of appellants have been convicted of more than one bank robbery. The ones so convicted are Turner, Brown, Allpress and Salmon. Each was convicted of two bank robberies…..What ,if anything should be added to the basic sentence of 15 years to cover the fact that they had committed more than one robbery? The Court is alive to the problems arising when men are kept in prison for very long periods of time. On the other hand it seems to the Court only just that those who make a career of crime should receive more severe punishment than those who have been convicted of only one grave offence. We have come to the conclusion that something must be added to the basic sentence on those who committed more that one robbery, but the maximum total sentence should not normally be more than 18 years ". Turner and Brown had been sentenced to 21 years for two robberies. Their sentences were reduced to 18 years imprisonment. Mr Martin Sperry has pointed out that the profits to the robbers had been considerably greater than in this case and the activities of the gang in the Turner case covered a longer time span. Whilst both those facts are true, it is the case that Turner and Brown were convicted of two robberies only.

[200]Mr Martin-Sperry invites this Court to sentence Hulme as if convicted of only those robberies where Lally's evidence was independently supported. As a matter of mathematics that would still leave him facing sentence for 11 robberies . However the evidence against Hulme was strong. The judge had heard it. He was in the best position to determine the proper basis for sentence and it is clear he sentenced on the wider picture. We see no reason to take a different view. Hulme’s role may have been principally as the getaway driver but he was as the judge said," an able right-hand man", and involved not only in the robberies themselves but also in identifying" soft targets " and planning the attacks. In short terms he played a principal part in a very substantial number of the kind of very grave offences identified by Lawton LJ in Turner. He was a career criminal. There was no mitigation. A sentence of 22 years is not manifestly excessive.

[201]On behalf of Hamlett Mr Wood has reminded us that he was only convicted of the first conspiracy. He had committed only nine robberies. Mr Wood argues that the judge did not give him sufficient credit for his withdrawal from the gang. This was a point urged upon the judge by Mr Cosgrove who was then acting for Hamlett. The judge dealt with it when he sentenced. "I am satisfied on the evidence that the reason you dropped out was not because you realised the enormity of what you were doing, but because you realised both Lally and Hulme had been striking too close to home, and you with your experience regarded that as dangerous and that there was some sort of row between you which involved them in deciding to act in future without you or you decided that it was not safe for you to act. That is not very much mitigation, but it is some mitigation."

[202]We agree with the comments of the judge. Given the number of robberies and the major part played in them by Hamlett there had to be a sentence of longer than 18 years. He also was a career criminal. 19 years imprisonment is appropriate.

[203]McCartney was involved in only two robberies, although in respect of one, the judge was satisfied that he carried a firearm which was to his knowledge loaded. The complicating factor in his case was that he was already serving a substantial sentence. In November 1998 at the same Court the same judge had sentenced McCartney to 8 years imprisonment for an offence contrary to Section 18 of the offences against the Person Act 18 61. That offence involved the use of a firearm. The judge recognised this problem. He said, "These offences were committed at about the same time and…..had I been in a position to deal with them altogether they were clearly quite different and would have attracted consecutive sentences, but…I would have had to take account of the fact that the totality of the proper sentences, both of those, would have been beyond your overall culpability. I have to decide therefore. whether I should pass a sentence in respect of these offences which should, because of its length, run concurrently to the sentence you are currently serving, or whether I should pass a consecutive sentence, but bearing in mind the totality, reduce the length of that sentence to one which is less than your involvement in these offences deserves."

[204]The sentence passed was one of 11 years to be served consecutively to the 8 years he was already serving. We say straight away that the approach of the judge was plainly right. The sentence imposed had to be consecutive but the judge had to take into account the totality. Mr Price argues that this sentence was in fact the same as that passed on Hamlett and so consequently is excessive.

[205]By virtue of Section 51(2) of the Criminal Justice Act 1991 where an offender who is already serving a sentence of imprisonment is sentenced to a further term of imprisonment, the two terms are treated as a singe term for the purpose of his release date.

[206]The effect in McCartney's case is that he is serving a sentence of 19 years commencing in November 1998 less any time he spent in custody on remand for the first offence. He will not be considered for parole before he has served half of that sentence ( Section 35(1) Criminal Justice Act 1991.) If he is not released earlier he must be released on licence at the two thirds point of that sentence, which, by our calculations, is approximately half way through 2010 less the time he spent on remand. The two thirds mark of Hamlett's sentence is the end of 2012 or the beginning of 2013, less the 13 months he had spent on remand. Whilst Mr Price's submission is correct to the extent that both are serving 19 years the reality is that Hamlett will serve longer. The sentence of 11 years is not manifestly excessive.

[207]Mr Shorrock did not advise Beddow to appeal his sentence and no application for leave to appeal was lodged, Mr Shorrock now seeks leave and an extension of time. The ground of appeal on which he relies has arisen since his initial advice and from its very nature could not have arisen before. We grant the necessary extension of time and give leave. The point is a short one and is based upon the judgment of this Court in the case of R v. Ashton and Others, unreported, EWCA Crim 2782 dated 6 December 2002. In that case there had been a gap of 4½ years from the date of sentence to the hearing of the appeal. The Court ruled that the sentence of 18 years was neither manifestly excessive nor wrong in principle but nonetheless reduced the sentence to 17 years imprisonment. Giving the judgment of the Court I explained why, "However it does seem to us that there has been a breach of this appellant's right to hearing within a reasonable time for which he is entitled to some redress. What form should it take? After much hesitation and taking guidance from the opinions of their Lordships in the case of Mills we have concluded that this appellant would be sufficiently compensated for the breach of his right under Article 6(1) if we were to reduce his sentence by twelve months."

[208]Mr Shorrock who, as it happened, appeared for Webber, argues that the position of Beddow here is exactly similar to Webber. The delay in the hearing of this appeal cannot be laid at his client's door. Counsel on behalf of each of the other Appellants prays in aid this point. Where delay can be attributed to unmeritorious conduct of the Appellant then there will be no breach of Article 6(1) . However that is not the case here and we feel bound to allow a similar reduction of sentence to recognise the undoubted delay in this case. The Sentence passed on each Appellant will be reduced by 12 months.

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Thomas Bracher v Crown Prosecution Service 2023